P L D 1959 (W (PLP)

This revision petition is directed against the judgment of Mr. Feroze Nana Ghulamally, Chief Judge, Small Causes Court in Suit No. 229 of 1952 dated 28‑4‑195,

6. The petitioner on the 5th of February 1952 filed a suit for the recovery of Rs. 1,577‑1‑4 against opponents 1 and 2 on the ground that his suppliers Messrs Dumont Export Clothing Corporation on 29‑12‑1950 under Bill of Lading No. 192 handed over 50 bales of second hand clothings to opponent No. 1 at the port of Hoboken, N. J. New York (U. S. A.) by M. S. Montevideo for delivery to him at Karachi. The goods were insured with opponent No. 2 under Marine Insurance Policy No. O. C. 40666‑48 in the sum of $1,650=Rs. 5,468‑4‑

0. The petitioner retired documents of the goods in dispute on the 1st of February 19 .1 from the National Bank of Pakistan, Karachi. The‑ vessel M. S. Montevideo arrived on or about the 4th of February 19: 1 and discharged the goods at Karachi in the second week of February. The Karachi Port Trust Authorities delivered 38 and 4 bales only on the 27th February 1951 and 28th February 1951 respectively and informed the petitioner that the remaining bales were short‑landed. After good deal of correspondence between the parties the petitioner filed the above‑mentioned suit against opponents Nos. 1 and

2. The suit was resisted by opponents 1 and

2. They examined some of the officers of opponent No. 3 as witnesses to prove that the goods were not short‑landed, full consignment was delivered to the Karachi Port Trust Authorities and the suit against them was misconceived the petitioner on coming to know that opponent No. 3 suppressed true facts from him, made an appli cation for the amendment of the plaint. The learned Chief Judge allowed him to implead opponent No. 3 as party to the suit. In paragraph 11 (a) of the amended plaint dated 13‑4‑1954 the petitioner alleged that the cause of action against opponent, No. 3 arose partly on or about 17th November 1953 when their officers stated in Court full consignment was delivered at Karachi and partly on 26th November 1953 when the petitioner called upon tom to pay the price of the goods not delivered to him. The suit was resisted by opponent No.

3. They contended that the suit against them was barred by limitation, it should have been filed within six months of the accrual of the cause of action and as it was filed much after six months as stipulated under section 87 of the Karachi Port Trust Act, the suit is liable to be dismissed. The learned Chief Judge, Small Causes Court, after recording the evidence of the parties, came to the conclusion that opponents Nos. 1 and 2 are not liable to pay any amount for the price of the goods as they had delivered the whole consignment to the Karachi Port Trust Authorities. This finding is based on the evidence of the officers of opponent No,

3. I have also gone through their statements. There can be no doubt that the remaining 8 bales in dispute were delivered by opponent No. 1 to the Karachi Port Trust Authorities in the second week of February 1951. On this evidence the finding of the learned Chief Judge, Small Causes Court that opponent No. 2 cannot be held responsible for the claim of the petitioner is also justified. The petitioner is unable to show any ground on which the suit can be decreed against this opponent. There is a warehouse clause in the policy issued by oppon8nt No. 2 and in law their responsibility ceased immediately after the goods were delivered to Karachi Port Authorities at Karachi. The suit against opponent No. 3 was also dismissed on the ground that it was barred by limitation under section 87 of the Karachi Port Trust Act. The learned counsel for the petitioner has urged before me that the view of the learned Chief Judge, Small Causes Court that the suit was barred under section 87 of the Karachi Port Trust Act is not correct. The learned counsel argued that under section 87 of the Karachi Port Trust Act the suit should be filed within six months of the accrual of the cause of the suit against them and not from the date of the cause against other defendants. He contended that the cause of action against opponent No. 3 for the first time arose on the 17th of November 1953, on receiving the information from their officers during the hearing of the case that the whole consignment was received by them in the second week of February 1951. I have carefully considered the contention raised before me and in my opinion the contention of the learned counsel is well founded. Section 87 of the Karachi Port Trust Act reads as under "No suit shall be commenced against any person for anything done ox purporting to have been done; in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit and, in the case of a suit for damages, if tender of sufficient amends shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender." Under this section neither any suit can be filed against any person for anything done or purporting to have been done in pursuance of the Act, without giving him one month's previous notice in writing of the intended suit and the cause thereof, nor can such a suit be filed after six months of the accrual of the cause of such suit. In these cases the question for deter mination will be at what time the cause of such suit accrued against opponent No.

3. Mr. Tikamdas Wadhumal, the learned counsel for opponent No. 3, strenuously contended that the acrual of the cause of the suit against opponent No. 3 arose immediately after they failed to deliver the goods to the petitioner. According to the learned counsel the petitioner throughout was aware that the goods were not short‑landed, that the Karachi Port Trust as agents of the shippers and as agents of the petitioner have failed to carry out their duty and on these facts the cause of such suit against oppo nent No. 3 arose on 28‑2‑1951. The contentions of the learned counsel are not borne out from the record. There is no evidence on the record to establish that opponent No. 3 informed the petitioner that the goods were not short‑landed and the failure to deliver the goods was for some other reason. The opponents did not give any information in writing till 20‑12‑1951 (Exh. No. 20). In this letter they enclosed another letter dated 19‑11‑1951. This letter refers to another, letter dated 4‑6‑1951 addressed to Messrs Sind Deccan Commercial Co. It is in the following terms :‑ No. D/15333 of 1951. Office of the Traffic Manager, Karachi, 4‑6‑1951. To Messrs Sind Deccan Commercial Co., 22, Liaquat Bazar, Karachi. Sub :‑8 bales ex. s.s. "Montivideo" of 4‑2‑

51. Index No.

193. Ref:‑Your letters Nos. 786/2/51/127 of 28‑8‑51, No. 786/2/ 51/135 of 3.3‑51 No. 786/2/5/189 of 21‑3‑51, No. 786/2/ 51/297 of 17‑4‑51 and No. 786/2/356 of 21‑5‑

51. Dear Sirs, I have to inform you that the matter has been enquired into. Several consignments of bales were landed ex the above vessel including the consignment of Index No.

193. If you will see the T. N. Receipt position with the Steamer Agents, it will be clear that despite the individual receipt position of more in some receipts and less in others by over and under tally, the Port Trust have correctly delivered whatever came into their custody and the position of receipts to the ship adjusted accordingly. Actually the 8 bales in question appear to have been short handed at this port as shown in the out‑turn report. The matter may please be referred to the Steamer Agents. (Sd.) Dy. Traffic Manager.". This letter clearly says that the 8 bales in question appear to hAve been short‑landed and the matter be referred to the Steamer Agents. The petitioner was therefore loft with two options, either to accept the statement of a semi‑official body or to disbelieve it and file suit against then. In my opinion he was perfectly justified in relying on the words of a responsible body. For this reason the petitioner did not file any suit against opponent No. 3 but confined his claim only against opponents. 1 and

2. Opponent No. 1 examined Zahiruddin, Traffic Supervisor, Karachi Port Trust as a witness. He admitted that truck notes Exh. 27 was issued to the agents of the steamer. According to him there were two consignments of "Hiran Marka" consisting of 53 and 50 bales of second hand clothing. 53 bales were consigned to Messrs H. Ahmed Patel and 50 bales were for the petitioner. Under the truck notes bales of both the consignments were delivered to the opponent No. 3, but only 42 bales were delivered to the petitioner. He also admitted that the Port Trust Authorities issued a letter to the petitioner that the rest of the goods were short=delivered and the information was based on the out‑turn reports. Thus 'for the first time on 17th November 1953 the petitioner came to know that the information given to him was wrong, that true facts were suppressed from him and he has been misled. It appears to me that on the language of section 87 of the Karachi Port Trust Act, the question on which date the accrual of the cause of suit against the Port Trust Authorities arises will depend on the facts of each case. Now the facts of this case disclose that all along the Porti Trust Authorities were contending that the goods in dispute were short‑landed. The petitioner believed them but was taken aback when opponent No. 3'.s Traffic Manager admitted that the goods were short‑landed. On these facts, can it be said that the cause' of, action arose against the opponent No. 3 in February 1951 ? The answer to this question depends on the position taken up by the petitioner. If he has accepted' the position taken' up by these opponents, no suit could be filed against them because such a suit would have been a meaningless and useless effort on his part to substantiate any claim against opponent No.

3. But if they have not accepted this position, the case will stand on a different footing and the cause of action against opponent No. 3 will immediately accrue. The learned counsel for the Port Trust Authorities has invited my attention to a letter dated 19‑4‑1951 to the Insurance Company. In this letter the petitioner stated that he has been delivered only 42 bales out of 50 bales and "it is supposed that the Port Trust Authorities have made misdelivery of our bales to other merchants of Karachi". This letter shows that the petitioner has not taken a definite stand. He was groping in the dark and that is why he requested the Insurance Company to make inquiries in the matter. It is a fundamental principle of law of limitation that it always implies an existing cause of action and that unless the cause of action for a suit has arisen, limitation for such suit cannot begin to run. In short, where there is no cause of action there can be no limitation. Ordinarily there is no difficulty in finding out when in a particular case the cause of action arises r because the statute itself says when it will accrue. The difficulty however, arises in those cases where the language of the statute is ambiguous and it depends on the happening of certain events. In such cases the test laid down is to find out when plaintiff could first have maintained his action to a successful result. In Dwijendra Narain Roy v. Joges Chandra De and others (A I R 1924 Cal. 600), it was held :‑ "Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result." There is another class of cases in which cause of action is satisfied and discharged and limitation stops running in regard to such cause of action, but if they are nullified by subsequent events, the plaintiff is entitled to a fresh cause of action. Surnomoyee v. Shooshee Mokhee (12 M I A 244 (P C)) and Bassu Koer v. Lala Dhum Singh (11 All. 47 P C). I have examined the matter from every point of view. It will be observed that unlike Art. 30 and Art. 31 of the Limitation Act there is no indication in section 87 of K. P. T. Act about the starting point of limitation. If the legislature intended to determine it in the same way as in the above mentioned articles of Limitation Act, it would have not employed general words such as "Nor after six months from the accrual of such suit". This however makes one fact clear that the question when the accrual of the cause of a suit under S. 87, K. P. T. Act arises will not be determined in a technical and limited sense. It appears to me that no hard and fast rule can be laid down in this respect and each case shall have to be decided on its own facts. I will therefore consider this question from the point of view when the plaintiff in the present case could first have maintained his action to a successful result against opponent No.

3. The petitioner having accepted the position that the goods were short‑landed were not entitled to file a suit for the recovery of damages against opponent No.

3. The position; however, changed when the officers of opponent No. 3 stated in Court that full consignment was received by the Karachi Port Trust. The moment this fact came to the knowledge of the petitioner, he had a cause against them and the accrual of the cause of a suit. immediately, and for the first time, arose against opponent No.

3. He is entitled to file a suit against opponent No. 3 from the date of the information conveyed to him. In my opinion this fact came to the knowledge of the petitioner for the first time on 17‑I 1‑1953. This will be in my opinion in this case the starting point of limitation against opponent No.

3. The suit from this date is well within time. I therefore hold that the suit against opponent No. 3 was not barred by limitation. In view of the above finding the order of the learned Chief Judge, Small Causes Court against opponent No. 3 is set aside. A decree for a sum of Rs. 1,577‑1‑4 is passed against the Karachi Port Trust with costs throughout. Opponents Nos. 1 and 2 will bear their own costs. A.H. Petition accepted.