P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This order Will dispose of the two Revision Applications Nos. 67 of 1953 and 68 of 1953 as there is a common question of law involved. The applicant hired furniture to Opponent No. 1, and Opponent No. 3 stood surety for him. The furniture con sisted of two glass almirahs, one lady's writing table and four chairs and were hired at Rs. 22 per month. After some time, opponent No. 1 shifted to the hotel of opponent No. 2, and took with him the hired furniture to one of the rooms given to-him as a lodger. Opponent No 1 gave up his residence in opponent No. 2's hotel. He had to pay a bill of about As. 175 as hotel charges. On 8th June 1950 he wrote a letter to the Manager of opponent No. 2's hotel expressing his regret in not paying the -amount of', the bill due from him and requested that his goods lying in the room may be removed to some other place: and promised to take back the said goods after payment of the dues. He, however, did not pay a single penny and opponent No. 2 therefore, did not allow the said goods to. be .removed and claimed a lien on the said property for the payment of the hotel charges. Opponent No: .1 did not pay the hire charges of the applicant and a sum of Rs, 88 became due from him for the period commencing 14th May 1950 to .13th September 1950. The applicant called upon opponent No. 1. to pay the said amount but he failed to do so. In the meanwhile he also discovered that opponent No: 1 was a lodger in, the hotel of opponent No. 2 and therefore called upon opponent No. 2 to return the furniture and also informed him that if he failed to do so he would be res ponsible: to pay hire charges at Rs. 22 per month. Opponent No. 2 informed the applicant that there was a charge on the furniture to the extent of Rs. 171-4-6 and if he was able to satisfy him about their claim, then the furniture can be obtained on payment of the said amount. In these circum stances the applicant filed two suits in the Karachi Small Causes Court, one foe the recovery of Rs, 88 and for the return of the furniture and the other for the recovery of Rs. 242 as hire charges for the period from 14th September 1950 to 13th August 1951. The learned judge, Small Causes Court on 22nd December 1952 decreed the suit ex-parte against Opponents 1 and 3 and dismissed the suit against Opponent No. 2 with costs. Mr. Fonseca the learned counsel for the applicant, admitted that after the decision of the trial judge the amount due to Opponent No. 2 has been paid under protest and the furniture has been taken away. The short question involved in this matter is whether opponent No 2 was liable to pay the hire charges and also to return the furniture without payment of the hotel charges due from Opponent No.

1. The learned counsel for: the applicant has strenuously argued that in law there is 'no lien of the hotel keepers on the property of third parties and that as the 'pro6erty was used by opponent No. 2 and was not returned he was liable to pay the hire charges for the time the furniture remained in his possession. Mr. Fonseca has drawn my (attention to section 171 of the Contract Act and urged that in law the lien is only recognised of bankers, factors, wharfingers, attorneys of a High Court and policy-brokers. He argued that it is only one of those persons whose lien is recognised under the law. He therefore contended that the learned trial Judge should have at least decreed the suit for the return of the furniture in dispute. Mr. Parial, the learned counsel for opponent No. 2, has, however, urged that the lien of the hotel keepers or inn-keepers has been recognised under the common law and therefore the conclusion of the learned judge on this question was correct and opponent No. 2 was not at all bound to return the goods in dispute to the applicant without payment of his charges. The learned counsel for both the parties took me through a number of authorities in support of their respective contentions. A lien is "a right in one man to retain that which is in his possession, but belongs to another, till certain demands of the person in possession are satisfied". It can arise in one of the three ways : (1) by common law ; (2) by express or implied contract ; and (3) by the general course of dealing in the trade in which the lien is claimed. Liens are of two kinds vii. general and particular. General liens are those in which A the right to retain the property is claimed for a general balance of accounts while particular lien is a right to retain property "for a charge on account of labour employed or expenses bestowed upon the identical property detained". The Courts of law have looked with favour to liens known as "particular liens" and have jealously guarded against "general liens". It may be noted that the right of general lien does not exist by the common law. They arise either out of general usage or by agreement. Section 171 of the Contract Act limits the right to a general lien and not to liens which arise by common law or by express or implied contract. In my opinion, the provisions of section 171 of the Contract Act are therefore not applicable in the present case. In fact, the liens mentioned in section 171 are not exhaustive at all. A reference to section 221 of the Contract Act will show that under certain circumstances the liens of agents are also recognised. It will also be worthy to note that in law liens are also recognised for the arbitrators for the work done by them in respect of the records and the documents produced before them by the parties concerned. This clearly shows that section 171 is not exhaustive and therefore the case of opponent No. 2 is not covered under this section. This, however, does not mean that the lien claimed by him is not recognised by law. The learned counsel for Opponent No. 2 has invited my attention to two English Cases reported in Threfall v. Borwick ((1874-75) 10 Q B D 210) and Gordon v. Silber ((1890) 25 Q B D 491). In the first case A went to the ,defendant's inn and stayed there with his family for some time; he took with him to the inn a piano as his own which he had hired from the plaintiff. He did not pay the bill of the hotel. The owner of the piano filed a suit against the hotel-keeper, who claimed to detain the piano in exercise of his lien as inn-keeper as debt due from his lodger. The learned Judges, after considering the arguments of the parties, came to the conclusion that the defendant as inn-keeper was bound to take in the piano brought by the guest in the hotel premises and having done so he had a lien upon it for the charges due from the lodger. In the second case, the defendants, husband and wife, stayed at the plaintiff's hotel ; the wife had with her a quantity of luggage, which was her separate property. Husband and wife both stayed in the hotel for a pretty long time. There was a large amount due from the husband. The hotel-keeper detained the wife's luggage in the alleged exercise of his right of lien. It was held that the plaintiffs were entitled to a lien upon the goods, notwithstanding that they were the separate property of the wife. In this case the learned judge Lopes, L. J., observed "by the common law of England every person who keeps a common inn is under an obligation to receive and afford proper entertainment to every one who offers himself as a guest, if there be sufficient room for him in the inn, and no good reason for refusing him. The inn-keeper is under an obligation to keep the goods of a guest received into the inn safely and securely, and can be sued and made liable in damages if he fails in this respect. Ire compensation for the burden thus imposed upon him, the law has given him a lien upon the goods of the guest until he discharges the expenses of his lodging and food. It the guest has brought goods to the inn to which he has no title, this will not deprive the inn-keeper of his lien, because he is obliged to receive the guest without inquiries as to his title. It seems, therefore, that a lien is commensurate with the obligation to receive the guests and to keep safely and securely his goods. The right of lien of an inn-keeper depends upon the fact that the goods came into his possession, in his character of inn-keeper, as belonging to a guest". The learned judge further observed : " Husband and wife arrive at an hotel with luggage ; the inn-keeper has no power of discriminating what may be the property of the husband and what may be the property of the wife; he receives, and is bound to receive husband and wife with their luggage ; the inn-keeper's charges are not paid, and I cannot see how it can be successfully con tended that the lien does not attach. It would, in many cases, be defeating the inn-keeper's lien and the object for which it was given". The above-mentioned authorities lay down that an inn-keeper or an hotel keeper under the common law has got a lien over the property of his guest for the hotel charges. Mr. Parial, relying on the above mentioned authorities, has urged that the same principle will be applicable in Pakistan as there is no contrary provision of law. He further contended that in the present case also, whenever a guest comes and stays in any hotel it is the duty of the hotel-keeper to allow the guest to bring all the articles which he wants to bring with him in the room given to him for staying. The hotel-keeper cannot refuse to accept the goods brought by the guest into the hotel. If he would do so, then the guest will be entitled to claim compensation and damages in law. He also contended that under the conditions that regulate the stay of a guest in an hotel it is clearly stipulated that there will be a lien of the hotel-keeper on the goods brought by the guest for the hotel charges. Mr. Parial also relied on the letter written by Opponent No. 1 to Opponent No. 2 by which he agreed that the goods in dispute will remain with Opponent No. 2 till his dues are paid. He contended that by this letter there exists an implied contract between the parties, viz. Opponent No. 1 and Opponent No.' 2 that there will be a lien against the goods in dispute for the hotel bills due from Opponent No.

1. There is great force in the contentions advanced by Mr. Parial. As I have already observed, lien arises in one of three ways, viz. : by common law ; by express or implied contract ; and by the general course of dealing in the trade in which the lien is claimed. The present case is covered by a lien that has arisen by common law and also by express or implied contract. It has been pointed out over and over again that the principles of justice, equity and good conscience will be followed by law Courts in respect of matters where there is no specific provision of law and there are number of authorities to support the view that the principles established under the English common law are applicable as principles of justice, equity and good conscience in India and now in Pakistan. There is no contrary provision on the question under consideration and I will, therefore, follow the English decisions on the question Under considera tion and will hold that there exists not, only alien in favour of the hotel-keepers to retain the property for hotel incharges by common law but it can also be created by express or implied contract. I accept the contention , raised by Mr. Parial that the letter of Opponent No. 1 to Opponent No. 2 dated 8th June 1950, creates such an implied contract. The learned counsel for the applicant has invited my attention to two Indian cases in Jan & Son v. A. Cameron (I L R 44 All. 735) and Rampal Singh v. Murray & Co., (I L R 22 All. l64), in support of the contention that the principles of common law are not to be ' applied in India if they are not found applicable to Indian Society and the circumstances. Both these cases were between hotel-keepers and their guests, but are clearly distinguishable. In the first case the question of the applica tion of common law was considered but in the other case no such question was raised and discussed. But in both the cases it was held that the provisions of the Indian Contract Act namely of Bailor and Bailee were applicable and therefore the matter in dispute was considered from that point of view. The question in the former case was about the liability of hotel-keepers in case the goods of, the guest are stolen and in the latter case the point involved was about the liability of the guest, if the goods hired out to the guest have to be destroyed due to his death in consequence of the infectious nature of the disease. In my judgment the principles discussed in, these cases, though remotely connected, cannot be applied to the facts of the present case. I have already held that there is no specific provision in the Contract Act dealing' with the point under consideration and am further of the opinion that the present case does not relate to an hotel in the Mofussil but arises out of a transaction entered in a big commercial town like Karachi and therefore, according, to the principle of law enunciated by their Lordships of the Privy Council in the cape of Wadhela Rajsanji v. Shekh Masluddin (141 A 89), the common law of England is applicable on the facts of this case. It is my considered view that there is a lien of the hotel keeper on the goods, whether, belonging to the guest or third parties, brought in the hotel and it is not F discharged until the hotel dues have been paid in full. I therefore consider, that the learned Judge below was right in dismissing the plaintiff's suit. For the reasons given above the two revision applications are dismissed with costs. A.H. Petition dismissed.