P L D 1975 Karachi 425 (PLP)

Zaheeruddin Khan for Opponents. Date of hearing : 25th September 1974. This revision application is directed against the judgment dated 23‑11‑1968 passed by the Judge, Small Causes Court, Karachi by which a Suit No. 673 of 1968 filed by the applicants‑plaintiffs was dismissed with costs on con sideration of a short point of limitation and notice under section 87 of' K. P. T. Act read with Bylaw 46 under the same Act.

2. The brief facts relevant for the purpose of deciding this application, are, that the applicants had insured with them a consignment containing. tools and other workshop equipments imported by M/s. United General Traders, which were found tampered with after the goods were kept with the K. P. T. as trustees of the consignee. The K. P. T. had lodged a. report with the police as it appeared to be a case of theft, but the applicants Insurance Company had to make the payment of Rs. 1,468.28 on settlement of the claim filed by the consignee. It is this. amount that the Insurance Company desired to recover from the K. P. T. by filing of this suit, as they held the latter to be primarily liable for the damage to the consignment. In the reply to the suit, the opponent K. P. T. had raised amongst others a preliminary objection of law stating, "it is further submitted that the said suit was filed on 27‑7‑1968, whereas the alleged cause of action occurred on 23‑11‑1967, which on the face of it, is time‑barred under section 87 of the K. P. T. Act, 1885, since it has been riled after six months from the date of the alleged cause of action". The learned Judge, Small Cause Court. Karachi considered this prelimi nary objection and decided it in favour of the opponent K. P. T. and in the result dismissed the suit.

3. Mr. A. Rauf, the learned counsel for the applicant has contended that the opponent K. P. T., by virtue of the provisions of the K. P. T. Act itself is in the position of a bailee in regard to the goods of the consignee who is a bailor. He referred to sections 47 and 49 of the K. P. T. Act to show how the opponent had to conduct itself in dealing with the goods of the consignee after they are taken into custody by them, and tried to show therefrom that the relationship between the consignee and the K. P. T. is that of a bailor and a bailee. According to the learned counsel the fact of the theft of the goods was admitted in view of the statement made by the K. P. T. in paras. 5 and 8 of the written statement. The suit that had been bled against the K. P. T. was in fact on account of the omission on their part to discharge the above contractual liability properly by not taking care of the goods as bailee and that the suit was not against any person so as to attract the provision of section 87 of the K. P. T. Act. According to him the suit was not against any person e.g., employee of the K. P. T. but was against the K. P. T. itself for being negligent in discharge of its responsibilities of a bailee in a diligent manner and a notice under section 87 was therefore not necessary at all. That was essential only in case of a suit for any action under the Act itself. In this case, therefore, the admitted fact was that theft had taken place and for which a report had been lodged with the police; that was not an act which by any means could be said to be an action under the Act. Case‑law was cited to show that the K. P. T. was in the position of a bailees vis‑a‑vis the goods of the consignee.

4. Mr. Zaheer, the learned counsel appearing for the opponent, however, did not deny the position of the K. P. T. with regard to the goods of the consignee and agreed that the relationship between the parties was a creation of statute. His contention was that in the circumstances of this case the provision of section 87 of K. P. T. Act were very much attracted and the Judge of Small Causes Court, Karachi, had rightly dismissed the suit on consideration of the preliminary legal objection. The shortage that is alleged to have taken place in the goods of the consignee, during the time they were in the charge of the opponent was due to some theft for which a report had been filed and the matter was investigated by the proper agency; and though the suit is said to have been brought against the K. P. T. for not properly discharging the functions of a statutory bailee and thus allowing the goods to be tampered with still that would be an action for an act in the purported discharge of the duties under the statute he., the K. P. T. He relied on the case of Karim Commercial Co. Ltd. v. United Oriental Steamship Co. (P L D 1970 Kar. 427) for the interpretation of section 87 of the K. P. T. Act, respecting the requirement of a notice as well as limitation. Now section 87 of the K. P. T. Act read as under :‑ "No suit shall be commenced against any person for anything done or 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." It is not the case of the applicant that such a notice was in fact given. What is being stressed it that a notice of this nature was not necessary at all.

5. A similar provision, section 109, exists in Port of Chittagong Act, 1914, which came to be interpreted in the case cited by the opponent I.e., P L D 1970 Kar. 427 and my learned brother Dorab Patel, J., who decided that case said that :‑ "The protection of this section both with regard to notice and limitation is available not only to action, taken under the said Act but to action purported to have been taken under it. The protection is similar to that of section 80 of the Civil Procedure Code and is clearly intended to cover negligence of misfeasance in the discharge of the third defendant's duties under the said Act. But how far does the protection extend? Would it cover action taken in deliberate dis regard of the provisions of the said Act? Let me consider a couple of examples. It is the third defendants duty under the said Act to receive cargo from streamers and deliver it to consignees. If, for instance in receiving cargo from a steamer it negligently drops it into the sea, or, if in distributing the cargo received by it from a steamer it negligently misdelivers it, it will be entitled to rely upon this section in any suit instituted against it. But if it receives cargo from a steamer and deliberately throws it into the sea, can such a wanton act of destruc tion possibly fall within the ambit of this section," . . . . . . and "It seems to me that action which is described as purported to have been taken under a statute can only mean something which was intended to have been done in pursuance of the provisions of that statute but which through human error did not fall within the scope of the statute. therefore, an act in deliberate disregard of the provisions of a statute cannot he treated as an act purported to have been done under that statute." I am in respectful agreement with the observations and hold that the opponent was in fact acting in the capacity of a statutory bailee under the Act when this tampering with the consignee's goods had taken place. If this act had been deliberate on the part of the opponent or any of their employees, they would not have been allowed to seek protection under section

87. But in this case. it is an act of theft which is reported to the police for investiga tion and this cannot be said to be a deliberate act on the part of the opponent. The opponent had acted all along in good faith and this shortage occurred by some error which was not intended. The opponent was therefore fully entitled to the protection afforded by section 87 of the K. P. T. Act.

6. It is not denied that the suit filed in this case was beyond the period specified in section

87. The suit was, therefore, clearly barred by time. In B the result, this revision is dismissed and the order of the Judge of Small Causes Court is upheld. The parties to bear their own costs. S. A. H. Revision application dismissed.