P L D 1966 (W (PLP)

3. The suit was resisted by the opponent both on merit and legal grounds. Their plea was that the suit was barred by limitation under Article 31 of the Limitation Act and was snot maintainable in the Karachi Courts in view of an agreement between the parties that any claim against them would be entertained by the Sukkur Civil Courts. On merit the opponent disputed the value claimed by the petitioner. The learned Judge, Small Causes Court, Karachi accepted the plea of the opponent and dismissed the suit on the ground that it was barred by limitation and the Karachi Courts have no jurisdiction to entertain it. He further held that the value of the goods were rightly fixed and the petitioner has suffered a loss in the sum of Rs. 500 (Rupees five hundred) claimed in the suit. The petitioner has challenged this judgment in this revision.

4. Mr. Abbas Zia, the learned counsel for the petitioner has contended that the view of the learned subordinate Court on both the points is not in accordance with the law. He contended that the opponent did not express their inability to deliver the goods till May, 1961 and, therefore, the suit was within limitation. On the second point, the learned counsel contended that the opponent has failed to establish any agreement whereby the parties are alleged to have agreed to get their disputes settled by the Sukkur Courts and, therefore, the finding of the learned subordinate Court that he had no jurisdiction is unwarranted. I propose to discuss these points separately.

5. It is not disputed by the learned counsel for the parties that the relevant Article applicable to the facts of this case is Article 31 of the Limitation Act, which is as under:‑ "31.‑Against a carrier for compensation for non‑delivery of, or delay in delivering, goods. One year. When the goods ought to be delivered." According to this Article the period of limitation begins to run from the time "when the goods ought to be delivered". The suit should be filed within one year from this date. Ordinarily a reasonable time is calculated for determining the period of limitation from the date when the goods are consigned. In coming to the conclusion as to what point of time should be considered to be the time when the goods ought to be delivered, certain circumstances are always taken into consideration. These are the date when the goods are despatched, the date when the goods reached the destination and the nature and the manner in which the goods are sent. In cases where the goods are despatched by railway these facts can be easily ascertained from the Railway Receipt. The R. R. is usually presented at the station of destination and the clerk concerned from time to time notes down on it about the arrival or non‑arrival of the goods, and the date on which they arrived. One can find out from these facts when the goods were consigned and when they were received at the place of destination. In the present case the goods in dispute were not sent by the railway but on motor trucks., The opponent led no evidence to show on what date the goes in question were despatched from Karachi and on what date they reached Larkana and when the goods were placed in a position to be delivered to the consignee. In spite of further opportunity provided to them they were unable to place any material on the record to prove these facts.

6. Mr. Nizamani, the learned counsel for the opponent has urged that the learned subordinate Court was perfectly justified in raising a presumption that ordinarily goods sent by road should reach Larkana within a week or so. In my opinion the learned subordinate Court was not justified to raise this presumption. In the absence of any evidence led by the opponent about the arrival of the goods at Larkana no such presumption could be raised. In such cases it is incumbent on a transport company to prove by cogent evidence that the goods entrusted to it were despatched by such and such carrier and it should be further proved that the carrier through which the goods were sent arrived at the destination by such and such time. It is needless to mention that so far as private transport companies are concerned no such accuracy can be expected from them as in the case of the Railway Authorities.

7. In the absence of any evidence produced by the opponent on these points, the other alternative left for the learned subordinate Court was to find out from other circumstances the time when the goods ought to have been delivered. This he could easily find out from the fact when the goods were offered for delivery to the consignee or from the negotiation going on between the parties about the delivery of the goods. But this aspect of the case did not attract his attention. In the present case there is ample reliable evidence on these points. On 24th March, 1961, the petitioner sent a notice to the opponent informing them that the consignment sent by them had not reached its destination and in spite of repeated reminders has not been informed about its whereabouts. By this letter the opponent was called upon either to trace out the consignment or to pay its value in the sum of Rs. 500 (Rupees five hundred) within a fortnight. This notice was acknowledged by the opponent on 25th March 1961, but it was not attended to. The notice is at page 9 of the record and the acknowledgment receipt is at page

17. It is, therefore, quite clear from this piece of evidence that by this time the opponent were not in a position to deliver the goods to the consignee. In this Revision the petitioner has further produced two post‑cards Exh. `A' and Exh. `B' dated 3rd March, 1961 and 24th April, 1961, respectively from their Agent at Larkana. These documents leave no doubt that the opponent had no knowledge about the arrival of the goods at Larkana and were shifting the responsibility on Bloach Transport Co., through whom the goods are alleged to have been transported to Larkana. This appears to be the position of the consignment of Soda bi‑carb. As regards Acid consignment the opponent case is that it had leaked and its empty bottles were lying with them in Sukkur. This is also borne out from the above‑mentioned documents. It was about this time that the petitioner's Agent was informed about the leakage. The opponent has not rebutted this evidence. In fact their Manager, who was examined by me on 22nd February 1965, admitted that the relevant record is not available with the Sukkur office. He stated that he had contacted the Head Office for verifying the date on which the goods were offered for delivery to the consignee but the same is not. available. He further admitted in his evidence that the Karachi Office did not maintain any record from which the date on which the goods were sent on truck to Larkana could be ascertained. According to him this record was sent to Sukkur. Thus the opponent have failed to produce important relevant record in support of their case. In these circumstances, it is open to the Court to raise adverse presumption against them.

8. Now the question is whether in the light of the above circumstances and facts the learned subordinate Court was justified in dismissing the claim of the petitioner as time barred. As already stated under Article 31 of the Limitation Act, the time begins to run from the date when the goods ought to have been delivered. This Article has been the subject‑matter of interpreta tion by some authoritative judicial pronouncements in this country. In Firm Muhammad Sadiq v. Federation of Pakistan (P L D 1956 Lah. 1093) a Division Bench of this Court held that the time under Article 31 of the Limitation Act, runs from the definite refusal or declaration of inability to deliver the goods made by the defendant. The cause of action in such case arises when the owner of goods is made aware that there will be no further delivery. This decision was approved by their Lordships of the Supreme Court in Abdul Jalil v. Muhammadi Steamship Co. (P L D 1961 S C 340). In that case their Lordships were considering the determination of the period of limitation in a case under Article III, Clause 6 of the Schedule to the Carriage of Goods by Sea Act (XXVI of 1925). As the language of that Article and Article 31 of the Limitation Act is in almost identical terms, their Lordships had the occasion to consider the interpretation put to Article 31 of the Limitation Act. In this connection their Lordships observed as under:‑ "There are a large number of decisions under Article 31 wherein it has been held that limitation starts only when the Railway Authority either refuses or expresses its inability, to give delivery. There was almost a consensus of opinion on this point in pre‑Partition India and after Partition the same was taken in the West Pakistan High Court vide Firm Muhammad Saddiq Imam Din v. The Federation of Pakistan, a decision of S. A. Rahman, C. J. and A. R. Changez, J., where a number of cases are cited." In Dada Ltd. v. R. S. N. Company Ltd., (P L D 1958 Dacca 452), a learned Single Judge of the Dacca High Court held that the time under Article 31 of the Limitation Act would run from definite refusal or declaration of inability to deliver the goods made by the defendant, and the cause of action in such cases would arise when the owner of the goods is made aware that there would be no further delivery. Similarly, in River Steam Navigation Company Ltd. v. Messrs Dada Ltd. (P L D 1959 Dacca 672), a Division Bench of the Dacca High Court held that "when the goods ought to be delivered" means "when the plaintiff realised that defendant by his conduct meant to convey that goods could not be delivered".

9. It seems to me also that the expression "when the goods ought to be delivered" in Article 31 of the Limitation Act really means that a consignee must be fixed with the knowledge that the goods are ready for delivery or that there is no likelihood to get its delivery so that he may be placed in a position to file a suit for compensation without being met by a plea that the suit was premature. That event can only happen when the Transport Company expresses its inability to deliver the goods or finally refuses to deliver the goods. Judging the present case in the light of the above discussion it is quite clear to me that the Transport Company had not definitely expressed their inabi lity to deliver the goods in question till March 1961. In my view the learned Subordinate Court was not justified to throw out the suit merely on the ground that ordinarily goods sent by road from Karachi to Larkana would be delivered within a week or so. This was not the real point involved in this matter. The real point was as to when the plaintiff was informed that the goods were ready for delivery or the opponent refused to deliver or expressed their inability to deliver the goods to him. In this respect the learned subordinate Court fell into an error. Admittedly, the suit under consideration was filed on 13th December, 1961. On the finding that; I have arrived at in this case, the suit is clearly within time. I would, therefore, set aside the finding of the Learned subordinate Court on this point.

10. The next question for consideration is whether the learned subordinate Court was justified on the evidence produced before him in holding that there was an agreement between the parties by which they had agreed that any claim arising out of the transaction in question would be determined by the Sukkur Court. In support of this plea the opponent had not produced the duplicate of the R/R issued to the petitioner. It is true that the petitioner had also not produced it on the ground that it was lost. But this fact will not shift the burden of proof on him. In such cases the burden would always be on the party, who pleads that such an agreement existed and the jurisdiction of ordinary Courts have been ousted for that reason. The opponent have not produced any reliable evidence to show that any such agreement was entered into between the parties. On the other hand they have relied only on a blank form which according to them is used as R/R for transporting goods by road. This was stated by Abdus Sattar their Manager on oath. But the petitioner has denied this fact on oath. After seeing the specimen R/R (Exh. 14) he stated that he was never apprised of these terms and denied that these terms were incorporated in the R/R issued for the consignment in dispute. In my opinion the evidence produced by the opponent on this point is meager. Much reliance cannot be placed on it. There is oath against oath. The learned subordinate Court failed to notice that the opponent did not produce the employee, who issued the R/R for the goods in dispute. In the absence of this evidence he was not justified to oust the jurisdiction of a competent Court on the bare statement of the opponent Manager, who had no personal knowledge of the transaction in question this way he disregarded the well established rule of law that such agreements must be strictly proved. I would, therefore, hold that' the learned subordinate Court in the circumstances of the present case was not justified in holding that the Karachi Court had no jurisdiction to entertain the suit.

11. Since there is no dispute about the value of the goods and there is nothing on the record to show that the value claimed by the petitioner is excessive, I would accept the finding of the learned subordinate Court that the claim of Rs. 500 (Rupees five hundred) is correct.

12. In the result, the revision is allowed. The claim of the petitioner as claimed is decreed with costs throughout. S.Q. Petition allowed.