1988 PLP 2302 (CLC)

(a) Contract Act (I of 1872)‑‑ ‑‑‑Ss. 151 & 152‑‑Consignment of goods sent by respondent owner through petitioner/ Railways admittedly was short landed and petitioner/ Railways failed to prove that consignment was accepted by it for carriage on owner's risk‑‑Held,. in absence of proof that consignment was received on owners risk, Railways was liable for the loss of part of consignment. (b) Contract Act (I of 1872)‑‑ ‑‑‑S. 188‑‑Agent's authority, extent‑‑Recovery suit through authorised agent‑‑Maintainability of‑‑Suit for recovery of amount on basis of short landing of consignment filed through Clearing Agent of consignee in the name of consignee, held, was maintainable‑‑No provision of law requiring that suit must ‑Fe filed by consignee itself‑‑Recovery suit filed through authorised agent, therefore, did not suffer from any legal defects. Ch. Rashid Ahmad for Applicant. This revision application under section 115, C.P.C. is filed by the defendant /applicant against the two concurrent judgments of the Courts below. The respondents instituted Suit No. 5013/80 in the Court of 12th Senior Civil Judge, Karachi for recovery of a sum of Rs.18,000 on the allegation that a consignment of 138 bags of Zera which was loaded at Chaman for export to India short landed by 9 bags at Karachi. The sum of Rs.18,000 was claimed on the basis of the actual value of the consignment. The suit was resisted by the defendant /applicant on several grounds and one of the pleas raised in the written statement was that they are not liable for the claim in the suit as the consignment was accepted for carriage at Chaman on owner's risk. The learned trial Court as well as first appellate Court found that no evidence was led by the applicant /defendant in support of the above plea and short landing of the consignment not being in dispute the suit was decreed. Mr. Rashid Ahmad, learned counsel for the applicant has raised two‑fold contention in this revision application. It is firstly contended by the learned counsel that the consignment having been accepted by the Railway Authorities at owner's risk for carriage no claim for loss of any part of the consignment could be made against them. Alternatively, it is contended by the learned counsel that the suit was not filed by the person who was entitled to recover the claim in respect of the loss of the consignment. In so far as the first contention of the learned counsel for the applicant is so concerned, he was unable to point out any evidence on record in support of the plea of the defendant/applicant that the consignment was shipped on owner's risk. No doubt this was specifically raised in the written statement but it is quite clear from the two judgments of the Courts below that the defendant did not come in the witness‑box to lead evidence in support of their plea. The plea that the defendant/applicant was not liable to pay the amount as the consignment was shipped on owner's risk was raised by the‑ defendant/ applicant in the written statement and as such the burden of proving A this assertion was entirely on them. As the defendant /applicant did not lead any evidence the trial Court as well as first appellate Court rightly held them liable in the absence of proof of this plea for the loss of part of the consignment. The second contention of the learned counsel for the applicant is also not correct. It is not disputed that the consignment was sent to Karachi for onward transmission to Harish and Company who were the ultimate consignee of the goods. The objection of the learned counsel for the applicant is that Harish and Company did not institute the suit by themselves, they filed the suit through their clearing agent Messrs Mustafa Corporation. As the suit was instituted in the name of consignee there was no requirement of any law that such suit must be filed by the consignee itself. The suit having been filed through an authorised agent did not suffer from any legal defects. No other point was raised. The revision application has no merits and is dismissed summarily. H . B . T. /P‑53/ K Revision dismissed.