1984 PLP 477 (CLC)

‑‑ O. I, r. 10 ‑Suit for recovery of money‑Railway giving delivery of goods without obtaining original railway receipt‑Every likelihood that interest of defendant prejudiced due to such delivery‑Railway in circumstances, held, a necessary party for determining real controversy between parties. Abdul Matin for the Railways. The defendant has filed this application for joining Divisional Superin tendent, Pakistan Railway, Karachi as a defendant. The plaintiff was the selling and indenting agent of defendant No.

2. The agency was terminated, and the plaintiff, therefore, filed a claim for Rs. 9,20,000 which inter alia included damages, outstanding commission,. and refund of excess amount paid by him. The defendants filed their written statement and also made a counter‑claim of Rs. 4,54,212 and Rs. 6,67,795.25. So far the claim of Rs. 4,54,212 is concerned the allegations were made that the defendant No. 2 on the instructions of the plaintiff had booked 16 bales of Navy blue serge from Harnai Railway Station to be supplied to the Commanding Officer Naval Stores Depot. Pakistan Navy, Karachi. Thus consignment was shipped under a railway receipt issued by the Railway Department and was valued at Rs.4,54,

212. The defendant No. 2 was in possession of the original railway receipt and delivery of goods could have been given only on the surrender of railway receipt but the plaintiff fraudulently managed to take delivery of the consignment from the Railway Authorities, without produc ing original railway receipt, and therefore; the defendants were deprived of the price of goods and suffered loss. The defendants, therefore, claim that as Pakistan Railway, Karachi, has delivered the goods, without obtaining the original railway receipt, they are also liable to compensate the defendants for the loss. A counter‑affidavit has been filed on behalf of the Pakistan Railways in which it has been stated that 16 bales were booked on 17th January, 1982 by M/s. Adlix Corporation from Harnai to Karachi and was consigned to the Commanding Officer Naval Store Depot. On arrival of the consignment the consignee executed an Indemnity Bond and took the delivery of the con signment. The stand taken by the Pakistan Railways is that it has no privity of contract with the defendants as the consignor was Adlix Corporation and the consignee was Commanding Officer Naval Store. It is a common prac tice in trade, that railway receipts and like documents are treated documents of title for the goods and are also kept as security for payment of price. No doubt Pakistan Railways has no privity of contract, but the delivery is normally given on the production of the original railway receipt. By obtaining an Indemnity Bond from the consignee Pakistan Railways as carrier has only secured its interest. It would have obtained an Indemnity Bond to the effect that if due to delivery of goods without producing the railway receipt, any action is taken against it, then the consignees who have taken the delivery in that manner will indemnify it against all losses and claims. The Pakistan Railways has not filed the copy of the letter of Indemnity, but from the circumstances no other conclusion can be drawn from these facts. In these circumstances as the delivery of goods has been given without obtaining the original railway receipt; there is every likelihood that the interest of the defendants may have been prejudice due to such delivery. On the facts and circumstances stated in the application and brought out on record Pakistan Railways is as necessary party for determining the real controversy between the parties as well as the question whether it will liable to compensate the defendants. I, therefore, allow the application and Pakistan Railways be joined as defendant against whom the defendants Nos. 1 and 2 have already sought prayer, in their counter‑claim. M. A. K. Appeal allowed.