1989 PLP 616 (MLD)

SAJJAD ALI SHAH, J.‑‑This is an application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. filed by respondent No.3 in which it is prayed that respondents 1 and 2 be directed to proceed with destuffing of 10 containers and allow respondent No.3 to take them away as they are required by their principals elsewhere. This application was filed on 2‑4‑1987 and was placed in the Court on the same day when notice was ordered to be issued to the remaining respondents as well as petitioners and hearing was adjourned to 6‑4‑1987. On that day by consent, hearing of this application was directed to take place alongwith hearing of the main petition already fixed on 8‑4‑1987. On 8‑4‑1987 Mr. Aziz Munshi, Advocate for the petitioner and Mr. Zahiruddin Khan, Advocate for the respondents 1 and 2 requested for postponement upto 14‑4‑1987 but Mr. Usmani, Advocate for respondent No.3 insisted for hearing and disposal of his application hence it was heard. Briefly stated the relevant facts are that the petitioners placed an order for supply of second‑hand reconditioned textile machinery under Cash Licence Scheme of Government of Pakistan for which they placed order with a firm in England. The shipments were made in the vessels of M/s. Norasia Shipping Lines, whose agent in Pakistan are M/s. Marine Services (PVT) Ltd. who are impleaded in this petition as respondent No.3. It is thd case of the petitioner that the consignment had to come m containers destined for Lahore Dry Port and respondent No.3 had knowledge about this fact, as letters in this context were written to them by the petitioner which are annexed with the petition as Annexures `C' and `D'. Some containers had come before which were transhipped to Lahore Dry Port and delivered to the petitioners. The dispute arose when 10 containers were found missing and in that connection enquiries were made from exporters in England. According to the petitioners, respondent No.3 did not inform them about these 10 containers which were shipped per M.V. Norasia Susan, which arrived‑ without intimation at Karachi on 27‑7‑1986. According to the clearing agents of the petitioners, they were informed by K.P.T. Authorities that 10 containers were short‑landed as shown in the final turn out report of the vessel issued by K.P.T. On 7‑10‑1986 clearing agents of the petitioners filed an application for missing/short‑landing of 10 containers and on search, the containers were found lying in K.P.T. premises on 14‑10‑1986. The dispute is between the parties, as to who will have to. pay the storage/demurrage charges for these 10 containers. Petitioners claim that respondent No.2 Traffic Manager, Karachi Port Trust has informed them in letter dated 5‑11‑1986 that onus of payment of demurrage charges is on respondent No.3 as they had withheld shipment and kept the same at their own yard as per their own letter dated 31‑7‑1986. Petitioners also claim that as per rule 35‑A of Manual of Procedure for Handling Berthing and operation of containers vessels and containers at Karachi Port, if cargo is withheld by shipping agent then storage charges on such cargo would be levied against the shipping agent. It also appears from the record of the petition that the petitioners and respondent No.3 have had correspondence on the subject and respondent No.3 is not prepared to accept the liability. On 10‑3‑1987 this petition was admitted to regular hearing and on the application for interim relief filed by the petitioners, notice was ordered to be issued and till then the Court directed that the goods shall not be auctioned. Application under consideration now is filed by respondent No.3, in which the prayer is that the containers in question be destuffed and the empty containers should be returned to respondent No.3 as they are required by the principals else?where. It is submitted by Mr. Aziz Munshi, Advocate for the petitioners that this cannot be allowed for the reason that the matter of payment of charges is to be settled between K‑P.T. and respondent No. 3 and secondly the consignment is to be delivered intact in the containers to Dry Port of Lahore, which is the port of destination in this case. In these circumstances, we do not feel inclined to grant mandatory injunction in favour of respondent No.3. Application, therefore, stands dismissed. H.B.T./S-321/K ????????????????????????????????????????????????????????????????????? Application dismissed.