P L D 1956 (W (PLP)

I now consider the rest of the amendment which is sought be introduced in the plaint. I have given my best considera tion to the allegations contained in the plaint and the amend ment sought. I find that it is not a mere amplification or clarification of the plaint as was urged by Mr. Akram for the plaintiff, but from the nature of the amendment and the facts sought to be introduced in the plaint by the amendment, it appears that it would be introducing new cause of action and also a new case. From a perusal of the plaint, one would get the impression that the transaction in question had taken place at Kabul, the plaintiff admittedly being a national of Afghanistan. The allegations now made out in the amendments sought to be made are to the effect that the contract took place at Karachi through an agent of the defendant. The obvious purpose seems to be to give jurisdiction to this Court. It is also noteworthy that the plaint was filed on 24th February 1955 while the application for amendment had been made on May 7th 1955. The application for amendment appears to have been made when the defendant took pointed objection to the jurisdiction of this. Court in the various applications that he made before this Court in reply to the applications filed by the plaintiff under Order XXXVIII rule 5 and Order XL rule 1 Civi1.P. C. .It would appear from para. 7 of the applica tion that the plaintiff wants to introduce a new cause of action. Para. 7 runs as under:‑ In para. (10) of the plaint after the sentence "That the cause of action accrued to the plaintiff at Karachi, the following may be allowed to be added:‑ On or about 25th October 1955 when agreement to sell was entered into and above referred cheque was given to plaintiff.' " The amendment sought, if allowed, would make out an alto gether different case from what was originally set out in the plaint and, as I have already said, the object appears to be to allege such facts which would give jurisdiction to this Court. Under these circumstances I do not consider to set out a case different iron what was made out originally in the plaint. The application for amendment is granted only to the extent that I have mentioned above, and is disallowed as regards the rest of the amendments sought in the applica tion of 7th May 1955. The plaintiff made an application under Order XXXVIII rule 5 read with section 151 Civil P. C. for attachment of certain goods belonging to the defendant and lying at the Karachi Port for shipment. The question to be seen so far as attachment is concerned is whether in the first place the plaintiff has been able to make out a prima facie case, and in the second place whether the requisite intention mentioned under Order XXXVIII rule 5 Civil P. C. has been made out. I would consider both the aspects. I have given my careful consideration to the question whether the plaintiff has made out a prima facie case or not, and I have come to the conclusion that he has failed to do so. On the face of it, on the allegations made out in the plaint, it would appear that the plaintiff has sold some carpets to the defendant and that the defendant paid some money in part payment and promised to pay the balance within 3 months. The plaintiff has relied on Exh. 26 which has been filed in the insolvency case No. 3/55 in support of his conten tion that some carpets were sold to the defendant and that the defendant was liable to pay the amount in suit. The relevant portion of Exh. 26 reads as under :‑ "Purchased from Mr. Jumabai 219 carpets and rugs measuring 887/13 metres @ Rs. 305 Afghanis per metre. Sum of 75,574 Afghani has been paid in cash. The balance two lacs Afghani which is outstanding against me will be paid by me in the period of three months. It is correct, (Sd.) ALI HAP ABDUL KHALIQ." At the end of this Exhibit appears the following:‑ "Cheque No.583346 for 52,000 Afghanis was given on 24th November 1933". In the first place it would appear from Exh. 26, as reproduced above that there is no mention of the plaintiff as seller of the carpets in question for which the balance is claimed. At any rate, even if the amendment in the plaint was allowed so as to make Jumabai an agent of the plaintiff, it would appear from Exh. 26 that Jumabai was not acting as a representative or an agent of the plaintiff. He has sold the carpets in his own individual right. In the next place, the contention of the plaintiff that money was to be paid at Karachi or at Kabul, would appear from Exh. 26 to be without any foundation. The object of introducing the payment to be made at Karachi, was to give jurisdiction to this Court. From Exh. 26 it would appear that there is no truth in this allegation. I may also mention that it was sought to be introduced though the amount that the defendant had given a post dated cheque for 13th February 1955 on the date when the transac tion in question ,took place, namely, on October 25, 1955. The object of this introduction again was to make it plausible that the contract had taken place at Karachi. That the introduction of the post dated cheque is absolutely false as would appear from Exh. 26 itself relied upon by the plaintiff. I have reproduced the Exh. 26 above, and from the last portion of Exh. 26 it would appear that cheque No. 583346 for 52,000 Afghanis relied upon by the plaintiff was given on 24th November 1933. This Afghani date 24th November 1933 admittedly is equivalent to 13th February 1955. The cheque therefore could not have been given on October 25th 1955, as it would be in direct contradiction of Exh. 26 where it is men tioned that the said cheque was given on 24th November 1933‑13th February 1955. It would appear from the dis cussion above, that the plaintiff has not been able to make out a prima facie case that the defendant owes him the amount claimed. If the defendant owes this amount to any body, it may be to Jumabai who is not before me. It would appear from the allegations in the plaint that the plaintiff has sought to give jurisdiction to this Court on the ground firstly that the defendant was carrying on trade in carpets and cotton goods at Karachi. So far as the question of carrying on business at Karachi by the defendant is con cerned, it is contended by Mr. Nurul Arfin for the defendant that the plaintiff has not been able to substantiate the same in view of his contention that the defendant has never carried on business here either personally or through his agent. The plaintiff has not been able to show that the defendant has got his office at Karachi from where he may be carrying on his business at Karachi. In fact, so far as the plaint is con cerned, it would appear from para. 1 that the defendant is alleged to carry on business personally. There is no mention that he was carrying on business at Karachi through his agents. It has been admitted by the plaintiff himself that he has got his agent only for the purpose of helping him to tranship his goods to foreign countries which he used to send from Kabul. He has categorically denied that he has ever carried on any business at Karachi. From the evidence that has come before me I am satisfied that the defendant has not carried on any business at Karachi. I have not been shown any law 'how this Court will have jurisdiction if the goods purchased by the defendant from the plaintiff wore in transit from Kabul through Karachi to a foreign country. At any rate, the suit is not for the recovery of the goods sold. The suit is for recovery of money, the goods on the allegations made in the plaint had already passed from the possession e of the defendant. I am of the opinion that the plaintiff is not able to satisfy me that this Court ultimately will have jurisdiction to try this suit. This question also will affect the question whether the plaintiff has a prima facie case or, not. The next question is whether the plaintiff has been able to establish the requisite ingredients of O: XXXVIII, r. 5 Civil P. C. The relevant portion of O. XXXVIII, r. 5 Civil P. C. reads as under "Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passsed against him,‑ (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, The Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security." In this case, it would appear, from the allegations in the plaint itself, that the defendant had already despatched the goods from Kabul for some foreign country. The goods were at Karachi only for transshipment and were lying at the Karachi port. It cannot, therefore, be said that the defendant has transferred his goods with intent to obstruct or delay the execution of the decree that may be passed against him, as no suit had been filed at the time the goods were disposed of, at Kabul. The defendant cannot be said to intend to obstruct" or delay the execution of the decree as there was no suit pending at the time when he is alleged to have disposed of the goods in question. Moreover clauses (a) and (b) of rule 5 of O. XXXVIII, Civil P. C. make it clear that this provision would apply only when the defendant is about to dispose of or is about to remove the whole or any part of his property, and not where he has already disposed of the property. Under these circumstances I am of the opinion that the requisites of O. XXXVIII, r. 5, Civil P. C. have not been made out and the application is therefore dismissed. I would, therefore, withdraw the interim order. In view of this order, the application under O. XXXVIII r. 6 (2) has become infructuous and is accordingly disposed of. So far as the application under O. XL r. 1 Civil P. C. is concerned, I had only issued notice. In view of the reasons that I have given above, this application is also dismissed. The attachment order is withdrawn. The goods to be released. A. H. Orders accordingly.