P L D 1952 Lahore 470 (PLP)

KAYANI, J.‑The plaintiffs, Messrs. Sher Afzal Khan, Pir Wilayat, curers of virginia tobacco in Burhan in Attock Tahsil obtained a permit from the Assistant Regional Coal Controller for the supply of 200 tons of steam‑coal to them. The Controller authorized‑the defendant, Indo‑Pakistan Corpora tion Limited, Lahore, to supply the coal in question and the defendant wrote to the plaintiffs that supply would be made if the plaintiffs could deposit Rs. 15,968‑12‑

0. This deposit having been made, a certain quantity of coal was supplied from Badami Bagh by rail to Burhan and was received by the plaintiffs in Burhan. The plaintiffs then filed a .suit at Campbellpur for the recovery of Rs. 21,000 alleging that their had been a shortage of about 10 tons of coal in. supply. A preliminary objection arose whether the Courts at Campbellpur had jurisdiction. The learned Senior Subordinate judge having decided in favour of 'the plaintiffs, the defendant has come in revision. The defendant's case is that as the coal had been booked 'to the‑ plaintiffs at Badami Bagh in the name of the plaintiffs themselves, they became owners at Badami Bagh and the railway had thereafter become their agent. The contract was, therefore, completed at Badami Bagh and the cause of action arises there. Under section 39 of the Sale of Goods Act where, in pursuance of a contract of sale, the seller is authori zed or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer, is prima facie deemed to be a delivery of the goods to the buyer. The section is clear enough and has been used in similar cases Jalal Din v. Nathu Ram A I R 1922 Lah. 474 and Messrs Amar Nath‑Shadi Lai v. Dhandusa Dhaktappa & Brothers A I R 1941 Lah.223. Learned counsel for the plaintiffs argues that all that his clients had done was to send a cheque to the defendant and that they had not required the defendant to send the goods by rail. This argument is clearly untenable. The defendant" under‑took to send the coal subject to a deposit of money and if the plaintiffs deposited the money, their consent that the coal should be sent to them was implicit. It was then for the defendant to choose the carrier, Apart from this implied contract, it is stated in paragraph (1) of the plaint that the plaintiffs had asked for the goods to be sent by rail. Learned counsel did not rely on the three rulings men tioned in the judgment of the lower Court, Sunder Das‑Prem Singh v. Puran Chand A I R 1933 Lah.

599. Gaekwar Baroda State Railway v. Sh. Habib Ullah A I R 1934 All. 740 and Firm Shaw Hari Dial & Sons v. Sohna Mall Bali Ram A I R 1942 Lah. 252, and rightly so. In the Allahabad case the delivery was to be made at a particular place although the contract was made elsewhere. It was held that the suit would lie at the place where the delivery was to be made. In the first Lahore case the contract was made at Hoshiarpur and delivery and payment were to be made at Amritsar. There was also a condition that the contract was to be deemed to have been made at Amritsar and it was held that the suit lay at Amritsar. In the second Lahore case, the seller sent the goods by rail in his own name and at his own risk. It was, therefore, obvious that the breach did not take place at the place of despatch but at the place of destination. The main contention of the learned counsel for the plaintiffs was that the cause of action arose to them at Burhan as it was there that the breach of contract took place. For this he relied on Arthur Butler and Co., Limited v. District Board of Gaya A I R 1947 Pat.

134. In that case, however, the contract took place at one place and revocation at another by telegram later, and since under section 4 of the Contract Act revocation is complete only when the communication reaches the other party, the cause of action arose at the place where the contract was revoked. In the present case the cause of action arises out of the short supply of coal. That was, if true, an omission by the defendant which took place not at Burhan, but at Badami Bagh. This quantity of coal was to be despatched from Badami Bagh and since under section 39 of the Sale of Goods Act the plaintiffs were to become owners at Badami Bagh, the breach of contract took place there. The cause of action, therefore, arises at Badami Bagh. The petition is accepted with costs. The plaint should be returned to the plaintiffs for, presentation to a Court at Lahore. A. H. Petition accepted.