1989 PLP 1459 (CLC)

M.H. Kazimi for Plaintiff. Inamul Haq for the Intervenor. Zaheeruddin for Defendants. (1) For orders on statements dated 22‑12‑1988 and 27‑12‑1988. (2) For orders on Miscellaneous No.390/89. (3) For hearing of Miscellaneous No.211/89. (4) For hearing of Miscellaneous No.330/89. (5) For hearing of Miscellaneous No.331/89. (1 to 5) S.No.l are statements made by Deputy Conservator Karachi, Port Trust dated 22‑12‑1988 and 27‑12‑1988. By former statement it was brought to the notice of this Court that m.v. `NARAN' formerly named as m.v. `KASHMIR' which was arrested under the orders of this Court dated 23‑7‑1987 in this suit had escaped on her own steam surreptitiously on its own without the knowledge of anyone in the port during the night hours. By latter statement Deputy Conservator K.P.T. has informed the Court that the said vessel was intercepted in the open sea and was brought back into Karachi Port on 23‑12 1987 by Maritime Security Agency and is lying in the Port at Fixed Mooring No.10. S.No.2 (Misc. No.390/1989) is an application under section 151, C.P.C. for release of passport of Shahid Mazhar Oureshi. S.No.3 (Misc. No.211/1989) is an application under Order 7, Rule 11, C.P.C. made by the defendant No.2 for rejection of the plaint. S.No.4 (Misc.330/1989) is an application under section 3 of Contempt of Court Act, 1976, read with section 151, C.P.C. praying that persons named therein be punished for contempt of Court. These persons are No.(1) Shahid Mazhar Qureshi partner of Afrah Shipping Company, (2) Sultan Ali Navigation Officer/and Mate of m.v KASHMIR/NARAN, (3) Crew members who were on board at the time the vessel sailed away from the Port of Karachi, (4) Capt. Khalid Mahmood Jan Master of m.v. `KASHMIR/NARAN'. (5) Partners of Swat Shipping Corporation namely Mahmood Ahmed Siddiqui, Mrs. Zaibun Nissa wife.of Habib and Mrs. Khairun Nisa wife of Sattar, and (6) Deputy Conservator of Karachi Port Trust and the concerned staff responsible for detention of the vessel at the Port of Karachi. S.No.5 (Misc. No~.331/1989) is an application under section 151, C.P.C. for sale of m.v. 'KASH MIR'/`NARAN' under the supervision of the Nazir of the Court. Arguments on all the statements and applications at these serial numbers were heard together and the same are being disposed of by this common order as the points involved therein are interconnected. This ship was, even prior to this, arrested by an interim order passed by the then Hon'ble Chief Justice on 14‑5‑1988. The order of arrest was served on the ship but, it left the jurisdiction of this Court in spite of such service. The ship again anchored at Karachi Port with the changed name m.v. `NARAN' and was ordered to be arrested again by my learned brother Mr. Justice Mazhar Ali on 27‑8‑1988. The defendants challenged the vires of the arrest and the jurisdiction of the Court. By my detailed order on Misc. Nos.685/1988 and 970/1988 dated 30‑11‑1988 it was held by me that the ship had escaped from the jurisdiction of this Court without any lawful authority after being arrested and the attachment order was served on it. It was further observed that after leaving the jurisdiction of this Court, being fully aware of this suit and the order of arrest the defendant No.2 sold the ship to the Intervenor. This conduct on the part of defendant No.2 not only reflected against him but it also created suspicion in the mind of the Court about the bona fides of the Intervenor who appeared to be in collusion with him. Hence it was held that the ship was lawfully arrested and its unauthorised escape was illegal. Consequently the order of arrest was confirmed and the release of the ship was refused until/unless it furnished security. It is really most painful to note that in spite of such clear order the ship was again surreptitiously and without any authority removed from the Port of Karachi. Its unlawful escape was brought to the notice of Maritime Security Agency by Port Authorities which acted promptly and apprehended the ship on high sea and brought it back to Karachi Port. The escape of the ship is a clear act of unlawful and fraudulent removal thereof from arrest and attachment made by the Court and is punishable under section 206, P.P.C. Section 3 of the Contempt of Court Act as well as under Order 38‑A, Rule 5 and Order 39, Rule 2(3), C.P.C. It was contended on behalf of Intervenor by Mr. Inamul Haq that this Court had no jurisdiction to entertain the suit because the entire clam of the plaintiff was false, dishonest and fraudulent. The defendant had in his C/A stated that the plaintiff had taken the delivery of the entire cargo of 5650 Metric Tons Wheat and had issued such a receipt. It may be pointed out that said delivery was alleged to have been taken and the alleged receipt Was purported to have been issued after filing of this suit. Hence it cannot be used to falsify the claim or to pray for rejection of the plaint under Order 7, Rule 11, C.P.C. The delivery of the wheat on the contrary implied that the claim was true and it is being shown to have been satisfied. The proper procedure, it is pointed out was to notify the satisfaction which should have been by an application under Order 23, Rule 3, C.P.C. and not under Order 7, Rule 11, thereof. Mr. Kazimi has stated that the plaintiff did take the delivery of the cargo shown therein in order to minimize his losses but a major part of his claim still remains unsatisfied. Hence the prayer of defendant for rejecting the plaint is not tenable. The subsequent developments after filing of the suit are matters of evidence. Pleadings can always be amended and the claimed amount can be adjusted in view of the subsequent happenings. Reference in this connection may be made to a recent unreported decision in the case of Lever Brothers (Pakistan) Limited v. M.T. Singapore Clipper and others (Adm. Suit No.516 of 1986) where. it was held by my learned brother Mr. Justice Saleem Akhtar as follows‑.‑ "I have examined the claim item wise and find that they relate to the same transaction between the parties and prima facie seem to have been paid subsequent to the filing of the suit. In such cases two options are available to a party, either incorporate and include the claim in the suit filed earlier or file a fresh suit. Fling of fresh suit will cause multiplicity of proceedings, which should be avoided. The nature of claim and the cause of action have not been altered. In these circumstances I allow the application for amendment of the plaint subject to all just exceptions." Regarding contract of carriage between the plaintiff and defendants it may be pointed that in the first instance the defendants have contended that they have delivered the cargo to the plaintiff at Sharjah while in the arguments it was contended that there was no contract of carriage with the plaintiff. If there was no contract of carriage then why the cargo was delivered to the plaintiff at Sharjah. Similarly if no freight was paid how the cargo could have been delivered without payment of the freight. The contention of the defendants that if a ship is chartered, it can never be unseaworthy, is not correct. The owners can suppress the condition of the ship by fraudulent means. As to the next argument about the invoice it may be pointed out that invoice Annexure 'B' does not show that plaintiff was not the consignee. Name of the plaintiff appears .in the Bill of lading and the defendants have themselves contended that they have delivered the cargo to the plaintiff. The plaintiff is the holder of the Bill of lading for valuable consideration. As to the signature and verification of the plaint it is pointed out that M.Y.Z Bhatti is duly constituted attorney and the plaint has been properly signed and verified. The original power of attorney is in possession of the attorney and is duly authenticated by the Pakistan Embassy. The suit is filed under the Contract of Carriage and has nothing to do with the Brussel International Convention and Pakistan is not a signatory to the said convention. The suit is filed under Admiralty jurisdiction. The legal position is that under section 3(g) and (h) of the Admiralty Jurisdiction of High Court Ordinance, 1980 any claim for loss or damages to goods carried in a ship or arising out of any agreement relating to carriage of goods in a ship or to the use 'or hire of a ship is maintainable. Under section 4 of the above Ordinance an action can be filed in rem in case of any claim mentioned in clauses (e) to (h) and (j) to (k) of subsection (2) of section 31 thereof and, therefore this suit is maintainable. Hence I do not find any merit in the application under Order 7, Rule 11, C.P.C. (which is Misc.No.211/1989) and, therefore, dismiss the same. Regarding statements at S.No.l and application at S.No.5 (which is Misc.331/1989) and application at S. No. 4 (which is Misc. No. 330/1989) 1 am satisfied for reasons mentioned above that the ship m.v. NARAN formerly named as m.v. KASHMIR was fraudulently, surreptitiously and dishonestly removed with intent to prevent its forfeiture in attachment and execution without lawful authority by the officers and crew of the ship, obviously at the instance of its owners and thereby they have rendered themselves liable to an action for contempt of Court, as well as prosecution for an offence under section 206 P.P.C. The Official Assignee is appointed as Commissioner and is directed to attach m.v. NARAN and prepare inventory of all the goods and articles lying in it and to make suggestions for keeping the ship in safe custody till final disposal of suit. Rs.5,000 be deposited by plaintiff as his fee. I also direct contemners Nos.l to 5 to show cause under section 476, Cr.P.C. within one month, why they should not be prosecuted under section 206, P.P.C., and/or punished under section 3 of Contempt of Court Act. Application at serial No.5 (which is Misc.No.331 of 1989) stands disposed of accordingly. Application at Serial No.2 is for release of passport of Shahid Mazhar Qureshi who is a contemner in this case. The application is dismissed for the time being. It may however, be repeated after the disposal of the contempt application. Serial No.l which are statements made by Deputy Conservator K.P.T. dated 22‑12‑1988 and 27‑12‑1988 are ordered to be filed as I am satisfied that the Deputy Conservator K.P.T. and officers subordinate to him are not at fault. They had done all that was in their power and have actually succeeded in apprehending the run away ship from high sea through Maritime Security Agency and in securing its return to the jurisdiction of this Court. I also do not propose to take any action against them under section 3 of Contempt of Court Act, 1976. Hence the statements at Serial No.l stand disposed of accordingly. Hence all the applications stand disposed of by this order, except application at Serial No.4 (Misc.No.330 of 1989) with regard to contemners Nos.l to 5 which is adjourned to a date in office and will be taken up in due course alongwith show‑cause notice. AA./K‑140/K Order accordingly.