1980CLC86 (PLP)

I. MAHMUD, J.-..This Letters Patent Appeal :s from a judgment and decree of a learned Single Judge of the erstwhile High Court of West Pakistan dated 1st September 1967, in Suit No. 117/63 on the Original Side of the High Court decreeing the suit of the respondent against the appellant in the sum of Rs. 1,01,890.88 with interest and costs as prayed,

2. The plaintiff/respondent, Muhammad Siddiq, carried on business as commission agent in the name of Shams do Co., Karachi. The appellants Nos. 1 and 2 carried on business as common carri rs of trans. porting for hire goods for all persons by land in motor trucks. Between 28th June 1962 and 17th October 1962, the respondent entrusted to the appellant No. 1, Al-Muslim Goods Transport Company at Karachi, 74 consignments consisting of two cases and 57 bales of yarn of a total value of Rs. 97,377.44 for carriage to Lyallpur and delivery there to the order of the branches of the Habib Bank Limited, United Bank Limited., Standard Bank Ltd., and the Bank of Bahawalpur Ltd. The appellant No. I issued truck receipts (Bilties) for these consignments in the name of these banks as consignees as per particulars and numbers mentioned in Schedule 'A' to the plaint. The arrangement with these banks was that the respondent used to obtain advances against the security of the truck receipts from the banks. The banks, in turn, took written Under taking from the appellant No. I to deliver the goods at Lyallpur to the consignee banks concerned or their nominees on presentation of Bilties and not to deliver the goods to any person. The banks forwarded these Bilties to their Branches at Lyallpur along with the demand drafts drawn by the respondent on the ultimate purchase together with the bills. The purchaser of the consignments was Shaikh Abdul Ghani of Scoter Mandi Lyallpur, who traded under different names and who was required to take delivery of the goods only on retirement of the Bilties by making payments to the Banks.

3. The appellant No. 1 engaged the second appellant who also was a common carrier carrying on business as transporter of goods in the name of Pak Union Goods Transport Company, to carry the gods for delivery to the consignee banks in terms of the agreement with the Banks.

4. As Sheikh Abdul Ghani did not retire the Bilties, the respondent instituted enquiries from the appellant No. 1 on 29th November 1962, with regard to the whereabouts of the goods calling upon the appellant to take care not to deliver the goods to anyone except the consignee banks. No reply was received, but it transpired that the appellant No. 2 had delivered the goods to Shaikh Abdul Ghani at Lyallpur without Bilties. The case of the respondent, therefore, was that both ,the appel lants as common carriers had improperly delivered the goods in breach of the terms of entrustment and by their fraudulent and negligent acts had caused loss of the goods, for which they were jointly and severally liable to pay to the respondent the market value of the goods including interest and charges amounting to a total of Rs. 1,01,890.88.

5. The defence pleaded by both the appellants, in their written statements, was identical, namely that the goods were delivered to Shaikh Abdul Ghani on the express instructions of the respondent to deliver the same without retirement of the Bilties or making payment and, therefore, the appellants bad executed their duties as common carriers and were free from liability. They also raised tecbical pleas, such as, that the suit was barred under sections 3 and 10 of the Carriers Act, 1865, as neither the value of the goods was declared to the carrier nor was any notice sent to the appellants within six months of knowledge of the alleged improper delivery to Shaikh Abdul Ghani, estoppel by conduct on the part of the respondent and that the suit was not maintainable and bad for non-joinder of necessary parties.

6. After recording evidence of the parties, the learned single Judge held on the material issues that (1) Exh. 13 dated 27th May 1962, the alleged letter containing express instructions of the respondent to deliver the goods to Shaikh Abdul Ghani without Bilties relied on by the appellant, was a forged and fabricated document and that the witnesses produced by the appellants were giving false evidence. He, therefore, reached the conclusion that the goods in question were wrongfully delivered to Shaikh Abdul Ghani by the appellants Nos. 1 and 2, who were in collusion with each other ; (2) that the suit was not barred by section 3 or section 10 of the Carriers Act as it was not a case of loss or injury to property delivered for carriage but a case of wrongful delivery or delivery ; (3) that the plea of estoppel by conduct against the respondent was not established nor could be allowed In the absence of specific plea in the written statement and (4) that both the appellants were liable jointly and severalty for breach of their duties as common carriers against the terms of the entrustment incorporated in the truck receipts, which amounted to criminal act. In the result, he decreed the suit of the respondent against the appellants as prayed.

7. The sheet anchor of the case of the appellants rested on the letter (Exh. 13) dated 27th May 1962, containing the alleged express instructions given by the respondent to appellant No. 2 who, in turn, also issued a similar letter to appellant No. 1, Exh.

15. The letter, Exh. 13, reads as follows :- Mr. Malik Sahib, Pak. Union Goods Transport Company, Lyallpur. Assalamalaikum ! It is to inform you that the goods which are booked by us from At-Muslim Goods Transport Company through the Bank's T. R., you please deliver the said goods from your transport Company to Shaikh Abdul Ghani Sahib Sooner Mandi, Lyallnur, without T. R. We are responsible for that. Shaikh Sahib shall be giving the Bank's T. R. afterwards. At the same time I am also sending a letter after getting the same written by the Al-Muslim Transport Company. 27-5-1962, For Shams Company, Karachi, (Sd.) Muhammad Siddiq."

8. Mr. Munawar Malik, learned counsel for the appellant 1, submitted that the learned counsel misconstrued the evidence, the facts and circumstances and also wrongly cane to the conclusion on his own visual comparison of Exh. 13 with exhibited writings, that Exh. 13 was got in the handwriting of the respondent and that it was a forged and fabricated document. He referred to the evidence of Sheikh Abdul Ghani and pointed out that the respondent was acting as his commission agent, for whom he used to make purchases of goods for up-country and was on persona and intimate business relations with him. The respondent had also entered into similar transactions earlier which were the subject matter of connected Suit No. 118/63. That as Shaikh Abdul Ghani was short of money and as the market was down, he visited the respondent at Karachi on 2.ith May, 1962, and requested the respondent to allow him to take delivery of the goods on retiring Bilities for making payment and, therefore, the respondent obliged him by giving him the letter. Exh. 13. which was addressed to the appellant No.

2. Counsel submitted that the writing and signature on this letter was recognised by Muhammad Jamil (D. W. 3) a correspondence clerk .of Shaikh Abdul Ghani, who was familiar with the writings of the respondent. Therefore Counsel urged that the evidence of this witness should have been accepted as being consistent with tile circumstances.

9. On the other hand Mr. Munawar Abbas, learned Counsel for the respondent, submitted that the facts and circumstances belied the genuineness of Exh.

13. No one had ever seen the respondent writing that letter and even Shaikh Abdul Ghani adwittea that it was neither written nor signed in his presence that the letter was kept ready by the respondent and delivered to him one or two days after he arrived in Karachi. This witness was an illiterate person and could not recognise handwriting or identity of the writer Similarly, Muhammad Jamil his dealing clerk, also did riot witness the respondent writing or executing the letter rind only recognised the handwriting from other correspondence received from the respondent. Also that Mahmudul- Hasan (D.W. 2) the Managing partner of the appellant No.2 on were clearly interested witnesses as they were in collustion with Sheikh Abdul Ghani ,Mr. Munawar Abbas also pointed out the very salient improbability of the respondent giving letter, Exh. 13 to the appellant No. 2 on 27th May 1962 when he had not entrusted any goods to him on that crate send that too even before the goods were actually first delivered to he appellant No. I on 20th June 1962. Mahmoodul Hassan gave no explanation as to why when the goods were entrusted to his company, the respondent had given Exh. 13 to appellant

2. Again although Mahmudul Hassan of appellant No. 1 who himself gave letter, Exh. 15, to appellant No. 2 to delivered the goods to Shaikh Abdul Ghani without Bilties was unable to explain why he objected later on his latter Exhs. 8/23 and 9/11 dated 11th May 1962 the appellant No. 2 having given deliveries to Shaikh Abdul Ghani except to deny the authority of A. R. Butt, who was not examined in case. The only reasonable inference to draw was that he wanted to protect himself from the possible criminal action by the banks who were making enquires about the goods. The learned Single Judge also rightly disbelieved the evidence of the appellants' witnesses, who said that the sale-proceeds of these consignments were paid to Muhammad Shafiq son of the respondent, Neither was any receipt nor books of account produced to prove payment to Muhammad Shafiq without the authority of the respondent, his father. Moreover, the payment to Muhammad Shafiq was not pleaded in the written statement and was set up-in evidence for the first time to shield themselves from the consequences of wrongful delivery. Again Mr. Munawar Abbas rightly pointed out that the case of estoppel by conduct on the part of the respondent, who it is alleged had knowledge of the goods being delivered to Sheikh Abdul Ghani without Bilties, yet did not protest could not be permitted to be raised as no such plea was taken in the written statement, where the plea was one only of express instruc tions.

10. The Handwriting Experts, Muhammad Khalil Khan and Cyril G. Bhan, disagreed as to the genuineness of the handwriting on Exh. 13 and, therefore, we think that the learned Judge quite rightly himself compared the disputed writing with admitted writings of the respondent which were brought on record in this case from the connected Suit. No. 118(63, i.e. Exhs. 8/15 to 8/12 as Exh. 23-35. He came to the right conclusion for every cogent reasons that the writing, the printed letter head and the signature were different. We respectfully agree with the conclusion reached by the learned Judge. In the connected -Suit No. 118/63, the corresponding Exh. 9/1 of the same date was held by us to be also a forgery for the very same reasons.

11. We are also in agreement with the learned Judge that the suit was not barred under sections 3 and 10 of the Carriers Act for the reason, that the present was a case of improper delivery and not of loss or injury to the goods. The liability of the appellant No. I and, in particular that of the appellant No. 2 arose in the case not on the basis of contract but originated from the exercise by them of a public employment for reward and, as held by the Privy Council in the case of Irrawaddy Flotilla Company v. Bhugwundas (I L R 11 Cal. 620) the liability. of common carriers is that

12. We are, therefore, in full agreement with the opinion of the learned single Judge. We find no merit in this appeal is accordingly . M. A. K appeal dismissed.