1992 PLP 143 (CLC)
m.v. KAPTAN YOUSUF KALKAVAN‑‑‑Appellant Versus SEMCO SALVAGE PTD Ltd.‑‑‑Respondent
| Citation | 1992 PLP 143 (CLC) |
| Forum / Court | Quetta |
| Bench Members | Munawar Ahmed Mirza, CJ and Iftikhar Muhammad Chaudhry, J |
| Parties | m.v. KAPTAN YOUSUF KALKAVAN‑‑‑Appellant Versus SEMCO SALVAGE PTD Ltd.‑‑‑Respondent |
Q1: What are the key laws and sections cited in 1992 PLP 143 (CLC)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1992 PLP 143 (CLC)?
The case was heard and decided by the Quetta bench comprising: Munawar Ahmed Mirza, CJ and Iftikhar Muhammad Chaudhry, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1992 PLP 143 (CLC) (m.v. KAPTAN YOUSUF KALKAVAN‑‑‑Appellant Versus SEMCO SALVAGE PTD Ltd.‑‑‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Tariq Hussain for Appellant.
- Muhammad Naeem and Muhammad Riaz Ahmed for Respondent.
- Date of hearing: 5th August, 1991.
Headnotes / Summary
(a) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)‑‑‑ ‑‑‑‑S. 3(2)(h)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Suit in admiralty jurisdiction‑‑‑Amendment of plaint‑‑‑Entitlement to‑‑‑Amendment sought to be incorporated in plaint would amount to putting up new case‑‑ Arbitration award being sought to be filed by seeking amendment in plaint, could not be made basis of claim of plaintiff and if amendment sought for, was allowed, same, apart from putting up a new case, would also amount to changing cause of action of suit which would be detrimental to the interests of defendant‑‑‑Plaintiff, however, would be at liberty to use arbitration award as evidence to substantiate its claim during trial of suit. 1912‑3 Kings Bench 257; A I R 1922 Oudh 15; A I R 1950 Orissa 1969; A I R 1934 Lah. 887; A I R 1921 Cal. 770; 1976 C L C 352; Maritime Liens by Thomas (British Shipping Liens Vo1.14) para.243, p.139 and Maritime Law Salvage by Geoffery Brice 613 p.269;1985 C L C 1355 ref. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑‑O.VI, R.11‑‑‑Amendment in the amount of claim‑‑‑Such amendment could not be permitted for the sole reason that originally when suit was filed claim was based on expenditure made by plaintiff for rendering salvage services to defendant on the statement of expenditure but through amendment same was being claimed on the basis of award and amount of claim had also been enhanced. 1980 C L C 256; P L D 1976 Kar. 23; P L D 1956 Sindh 47; P L D 1985 SC345;PLD1973SC507;PLD1963SC191;1969SCMR277;PLD 1971 SC 762 and P L D 1964 Kar.172 ref. (c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.VI, R.17‑‑‑Amendment of plaint‑‑‑Principles for consideration when allowing or declining amendment. (1) Amendment would be allowed at any stage it if did not change the cause of action of the suit. (2) Amendment would be allowed to seek consequential relief arising from the cause of action originally incorporated in plaint. (3) Amendment would be allowed to add additional relief available to plaintiff even before higher Courts of jurisdiction such like High Court and Supreme Court. (4) Amendment would also be allowed for converting a suit from one relief to another i.e. if suit was filed for declaration, same could be converted into possession etc. (5) Amendment would not be allowed to base a plaint on different title. (6) Amendment would also not be allowed when mala fides on part of plaintiff was explicitly visible in the pleadings. (7) Amendment would not be allowed to raise a plea of fact which was derogatory to the plea already taken up in the plaint particularly when such fact amounted to admission in favour of other side. (8) Amendment would not be allowed to substitute cause of action. (9) Amendment would also not be allowed to change complexion of the case. (10) Amendment would not be permitted if it caused prejudice to opposite party. (11) Amendment would also not be allowed if it introduced a new ca of action which was not available at all at the time of filing of suit. (12) Amendment would not be permitted if it caused injustice to other side. (13) Amendment would not be allowed on the ground of findings made by another Tribunal in respect of the same subject‑matter. (14) Rights/obligations accrued in favour of or against one party would not be allowed to be warded off by way of allowing amendment. A I R 1948 Mad. 179; P L D 1960 Lah. 446; A I R 1946 Mad. 105; A I R 1948 Nag. 119; A I R 1946 Mad. 497; A I R 1942 Sindh 4; A I R 1941 All. 298; A I R 1950 Orissa 169; A I R 1961 Pat. 302; A I R 1922 Oudh 1958 and P L D 1985 SC 345 ref. (d) Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980)‑‑‑ ‑‑‑‑S. 3(2)(h)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑‑‑Amendment of plaint‑‑‑Entitlement to‑‑‑If amendments as sought for were allowed, title of case would necessarily be changed and plaintiff would be entitled to claim an enhanced amount as against original claim set up in the plaint‑‑‑Contents of plaint showed that no reference in respect of pendency of arbitration proceedings was made therein‑‑‑Material facts were thus concealed from Court with ulterior motive and when Arbitration award had been announced in plaintiffs favour same was being incorporated in plaint in order to base the claim solely thereon‑‑‑Amendment could not be allowed in circumstances. (e) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.VI, R.17 & S.115‑‑‑Amendment of plaint‑‑‑Plea of amendment inconsistent with the plea set up in plaint amounted to putting up a new case‑‑ Complexion of suit would also be changed which would result in causing serious prejudice to defendant‑‑‑Amendment of plaint putting up a different cause of action would be contrary to spirit of law‑‑‑Plaintiff was thus, not entitled to amendment of plaint‑‑‑Trial Court's order allowing amendment of plaint being not warranted in law was set aside.
Judgment & Decree
IFTIKHAR MUHAMMAD CHAUDHRY, J: ‑‑This appeal is directed against order dated 9‑9‑1990 passed by learned single Judge of this Court in Admiralty Suit No, 2/87 whereby two separate applications being Civil Misc: No 259/88 and 194/89 under Order VI, Rule 17 were allowed subject to all just exceptions. Concise facts relevant for disposal of this appeal are that plaintiff filed suit for recovery of U.S. Dollars 3,37,560/96 = Pak. Rs.66,07.316/80 with cost and interest against the defendants. The suit was contested and written statement was filed by the appellants on 5‑10‑1987. The Court framed issues for adjudication; the plaintiff produced evidence and got recorded statements of two witnesses. On 16‑4‑1988 Civil Misc. No. 259/88 was filed under Order VI, Rule
17. This application was followed by another Civil Misc. No. 194/89 on 11‑3‑1989. In C.M.No. 259/88 the plaintiff sought following amendments:‑‑ (1) After the title in the plaint the heading of the suit may be substituted as follows:‑ "Claim for L 244,707.12 equal to Pak. Rs.81,63,429.52 cost and interest." (2) That paragraph 16 of the plaint may be deleted and following new paragraphs No.16,17,18 and 19 may be added:‑ '
16. That the cargo interest accordingly furnished security in the sum of U.S. Dollar 1.25 million with the Committee of Lloyd's pending determination of the salvage award by the Arbitrator in term of LOF 1980 and eventually settled the plaintiffs' claim amicably in the sum of US Dollar 537,
500. The dispute before the Arbitrator was therefore confined to the share of the ship for which the then registered owners of the defendant No.1 though endeavoured through their London Solicitors to negotiate for a reduced sum of security failed altogether to furnish the same. Accordingly the Lloyds' Committee appointed MrA.P. Clarke, Queens Counsel as Sole Arbitrator who having issues notices of hearing to the then registered owners of the defendant No.1 vessel, proceeded to determine the plaintiff's salvage remuneration by evaluating the salvaged property namely the vessel and the cargo as follows:‑ "Value of the salvaged ship m.v. Kaptan Yusuf Kalkavan L 276,715.63 Value of the salvaged cargo L 436.036.76 Total: L 712 7 2 "
17. That the then registered owners though served with notice remained unrepresented before the Arbitrator. M/s. Britten Bradshaw' the London Solicitors appointed by the defendant No.2 however on 10 11‑1987 approached the plaintiffs' Solicitors Messrs Elborne Mitchell and requested information and documents and indicated the possibility of them being instructed to appear before the Arbitrator for protecting the interest of the defendant No.2 at the hearing fixed on 13th and 16th October, 1987, but eventually failed to make any appearance and the case was duly heard on the said dates."
18. That the learned Sole Arbitrator thus having concluded the hearing made his award on the Ist March, 1988 which was duly published by the Committee of Lloyds' London on 2‑3‑1988. "
19. That the learned Sole Arbitrator thus awarded to the plaintiffs as follows:‑ (i) Proportionate salvage remuneration in respect L 201,864.00 of the defendant No.1 vessel. (ii) Interest from 25‑11‑1987 to 3‑3‑1988. L 27,645.69 (iii) Cost incurred and taxed by the Arbitrator. L 9,474.48 (iv) Further legal cost. L 1,932.95 (v) Arbitrator's fees. L 3,090.00 (vi) Committee of Lloyds fees. L 700.00 Total: L 244.707.12
3. That the existing paragraphs 17, 18, 19 and 20 of the plaint may be. renumbered as paragraphs 20, 21, 22 and 23 respectively.
4. That the existing paragraph 21 of the plaint may be deleted and the following new paragraphs as paragraphs 24 and 25 may be added:‑ "
24. That the plaintiffs respectfully submit that the sums awarded by the learned Sole Arbitrator referred to in paragraph 19 above are in the circumstances of the case, proper, reasonable and fair and the plaintiffs are even otherwise entitled to the said sums.'
25. That the defendant No.1 vessel is thus liable to be arrested and sold for recovery of the plaintiffs' dues to the extent of the sum of L 244,707.12 which is equal to Pak Rs. 81,63,429.52 at the present rate of exchange of L 1= Rs.33.36, with further interest on the, principal sum at the rate of 10.75% per annum."
5. That the existing paragraph 23 may be deleted.
6. That the following new paragraphs may be added as paragraphs 26 and 27:‑ "
26. That on 29‑8‑1987 this Hon'ble Court was pleased to direct the defendants to furnish security in the sum of Rs.4 million for securing the plaintiffs claim and directed them further to. "Maintain detailed account concerning disposal of scrap and its sale consideration etc. for placing it before this Hon'ble Court if and when required."
27. That the plaintiffs therefore respectfully submit that the defendants No.2 are in terms of the said order liable to account for the entire sale proceeds of the scrap of the defendant No.1 for satisfaction of the plaintiffs' claim if and when decreed in excess of the said sum of Rs.4 million for which bank guarantee has been furnished."
7. That the existing paragraphs 24 and 25 of the plaint may be renumbered as paragraphs "28 and 29" respectively.
8. That the existing paragraph 26 may be renumbered as paragraph 30 and the figure Rs.81,63,429.52 may be substituted for the figure Rs.6,607,316.80.
9. That in the prayer clause (i) of the plaint the said sum of Rs.81,63,429.52 may be substituted for the existing figure Rs.6,607,316.80 and the rate of interest may be substituted by "10.75% instead of 15%".
10. That at the foot of the plaint among the documents relied upon the following may be added:‑ "Lloyds' letter dated 2‑3‑1988, the Award dated 1‑3‑1988 together with the reasons given by the Arbitrator. The extract from the ship's registry, etc. etc." Whereas in C.M. No.194/89 request was made for amendment in the plaint as under:‑
1. After the proposed paragraph 20 the following two additional paragraphs 21 and 22 be added as follows:‑ "
21. That thus the defendant No.1 vessel was on 2‑3‑1987 sold by the Red Sea Ports Authority for Egyptian pound 400,400 and after deducting therefrom Egyptian pound 97,507.67 being the port dues payable by the owners plus the cost of depositing, the said authority deposited the surplus in the sum of EGP 302,289.33, approximately equal to US Dollar 143,073.53 in their hands in the Suez Court of First Instance.
22. That at the request of the plaintiffs the Suez Court of First Instance vide its order of Attachment Injunction No. 22 of 1987 dated 8‑6‑1987 registered their claim provisionally in the sum of US Dollar 200,000 and is also seized of the following claims, which are pending adjudication and determination of priorities between them inter se vis -a‑vis the plaintiffs and the next hearing if fixed on 22‑3‑1989:‑ (a) By Dominiqn International Services US Dollar 40972.03 Egyptian Agent of vessel. (b) By the Master of the vessel. US " 94500.00 (c) By the First Engineer US. " 79500.00 (d) By a Sailor. US. " 45650.00 and the plaintiffs do hereby undertake to bring on record the actual sum if any when eventually received from the said Suez Court of First Instance and make appropriate adjustment in their claim in the above suit."
2. That the propose d paragraphs 21 to 30 be accordingly renumbered as paragraphs 23to
32. The appellants vehemently opposed the request of respondent for seeking amendment in the plaint on the ground that complexion of the suit would be altogether changed because the request for deleting paras 16, 21 and 23 as well as prayer clause from the original plaint has been sought to put up altogether a new case, as while filing suit for recovery of amount a lesser amount was claimed whereas in the amended plaint appellant has put up claim against the appellant for recovery in the sum of Pak. Rs.81,63,429.52 with cost and interest. Originally suit is based on statement of claim which is appended to plaint as Annexure‑8, whereas now in entire substitution of this statement of claim respondent/plaintiff intends to replace the same with an arbitration award which has been determined to the tune of US Dollar 7,12,752.39 and under law during pendency of suit, Arbitration Award cannot be made basis for the claim. The plaintiff either to withdraw their suit and pursue remedy which is available to them under Arbitration Act or they should independently prove their claim on the basis of statement of claim which has already been placed on record. Similarly in the previous suit certain admissions have been made by the plaintiffs/respondents and if those parts of pleading are allowed to be deleted admission would also be withdrawn, therefore, on this point as well request for amendment of plaint is unwarranted. The learned Single Judge after considering documents of both the parties allowed amendment in plaint as sought for vide impugned order, under these circumstances the instant Revision has been tiled. In support of appeal Mr. Tariq Hussain, learned counsel has argued that amendments sought in pleading are in violation of provisions of Order VI Rule 17, C.P.C. if amendment as requested for, is granted this would amount to allowing the plaintiffs/respondents for putting up altogether a new case in the Court. In the previous suit certain important admissions have been made particularly in paragraphs Nos.16, 20 and 21 which are in favour of appellant.