P L D 1958 (W (PLP)

QADEERUDDIN AHMED, J.

‑ The evidence of the .parties was recorded by Mr. Justice (Now Mr.) Lari, and arguments were partly heard by him. After his resignation the case came up before me for arguments. On the date of, the hearing Mr. Aziz for defend ant No. 1 and Mr. Tikamdas for defendant. No. Z suggested that it could‑ be disposed of on legal issues only and that, therefore, they may be determined first. Mr. Tikamdas relied on section, 87 of the Karachi Port Trust Act, 1856 and Mr. Aziz wanted to argue that the suit was time barred against the Government of Pakistan under Article 2 of the Limitation Act. Mr. Arifin for the plaintiff was agreeable to this suggestion. I was, and am, of the opinion that it can be disposed of on these issues of law. The plaintiff has brought this suit for the recovery of Rs. 72,657‑8‑6 as ‑damages with future interest at the rate of 6 per cent. per annum: His case is that he imported 38 cases of printed shirting and 86 cases of printed jeans which arrived at the Port of Karachi on, the 17th of August 1950, and the 6th of September 1950 respectively, but were not delivered to the plaintiff because a Deputy Superintendent of the Pakistan Special Police Establishment issued an order, Exh. 134, dated the 8th of Septem ber 1950; 'addressed to the Collector of Customs directing him that the goods be detained for purposes of investigation and that relevant records, namely, "bill of entry, invoices, etc." be handed over to S. L. Syed Abdul Naeem who was investigating the case. The plaintiff has pleaded in paragraphs 6 and 7 of the plaint that "the Collector of Customs, in breach of his duty and obliga tions to the plaintiff and without the latter's knowledge or consent, delivered these documents and papers to the Special Police, and together with the defendant No. 2, wrongfully, without authority and without the knowledge and consent of the plaintiff detained, and/or caused detention of, these goods" which "were not delivered to the plaintiff till about February 1952". He has further pleaded that as a result of this detention and consequent delay in the delivery of the goods they became "absolutely unmarketable" and that he has suffered the loss of their entire price as well as the loss of the other expenses which he had incurr ed. The defendants, therefore, according to the plaintiff, acted wrongfully, improperly, without authority, in excess of authority, illegally, without any reasonable or good cause in breach of the plaintiff's rights and obligations and also negligently. The plaintiff has stated in paragraph 17 of the plaint that he had given a. notice to defendant No. 1 under section 80 of the Code of Civil Proce dure but has not stated that any notice was given by him to the Trustees of the Port Trust under section 87 of the Karachi Port Trust Act. Mr. Tikamdas for the Trustees, of the Port of Karachi has two objections .on‑ the ‑basis of section 87 of the Karachi Act. ‑They are contained in issues Nos. 8‑A and 10 "8‑A. Whether suit against defendant 2 is bad for want of notice under section 87 of K. P: T. Act'?

10. Whether the suit against defendant 2 is time‑barred under section 87 of K. P. T. Act?" Defendant. No. 1, namely, the Government of Pakistan did not plead that the suit was time‑barred against them, but their counsel Mr. Aziz has raised the objection now on the basis of Article.2 of the Limitation Act and. the learned counsel for the plaintiff has conceded that he can do so. I need not reproduce all the issues which are 15 in number and 3 of them consist of two parts, nor do I propose to give a summary of the pleadings of the defendants because most of them are irrelevant for the determination of the above questions. I shall proceed on the assumption that the case of the plaintiff as set out in the plaint is correct. I take up the objections of Mr. Tikamdas first. Section 87 of the Karachi Port Trust Act, 1886, runs as follows :‑ "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, 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". According to this section no suit can be brought against any person for anything done or purporting to have been done in pursuance of the Act without a month's notice nor after six months from the accrual of the cause of action. Neither of these two requirements have been complied with because admittedly no notice in pursuance of this section has been given and because the cause, of action accrued to the plaintiff, according to para graph 18 of the plaint, in February 1952, but the suit was institut ed in the middle of March 1953. The learned counsel for the plaintiff has not disputed these, conclusions but has contended that section 87 is not applicable to this case. This is the best that he could do under these circumstances. His first contention is that the expression "any person" does not include the Board of Trustees, because the Legislature has used the word "Board" whenever it wanted to refer to it. In support of this contention he has invited attention to section 88 which relates to the responsibility of the Board for the acts of their officers and servants and contended that a similar reference to the Board would have been made in section 87 of the Legislature intended that a suit against the Board also could not be instituted without fulfilling the requirements of this section. This is not a sound inference, because section 88 speaks particularly of the responsibility of the Board and not of other persons. The Legis lature therefore could not use a general expression in this section But section 87 bars suits against any person including the officers 13 and servants of the Board as well as the Board itself and; therefore, a wider expression has been appropriately used. No authority is needed to support this contention, but Mr. Tikamdas has cited Prag Narain Baragva v. The Karachi Port Trust (4 S L R 236) and Messrs. Moosaji Ahmad & Co. v. The Karachi Port Trust (11 S L R 126) in support of it. The next contention of the learned counsel for the plaintiff is that this section is applicable to acts which are done or which purport to have been done in pursuance of the Karachi Port Trust Act, 1886 but neither negligence in storing the goods of the plaintiff nor the act of letting them to remain the possession of the Board for the benefit of the Special Police can be said to be acts done in pursuance of the Act. The custody of the goods, according to paragraphs 11 and 12 of the plaint, was an act of trespass of the defendants and their failure to store them safely and without proper care amounted to negligence of duty, but this duty, counsel contended, was not imposed by the Act but was the consequence of involuntary bailment under the law of Contract. He has conceded that under sections 29, 30, 32, 33, 43 and 49 of the Act it is the duty of the Board to construct wharves, quays, stages, jetties, piers, docks, sheds and many other structures and to allow or compel their use for purposes of landing and shipping of goods, but he has contended shat according to the first para graph of section 49 of the Act such use is to be allowed for 5 clear days only and upto the end of this period only the Board is a, bailee under the Act. After this period, according to him, this character is extinguished because then, in the words of the Board may cause such goods to be removed either to any warehouse belonging to them, or, with the consent of the Chief Officer of Customs, to a public warehouse; and the removal to and detention in any such warehouse shall be at the risk and expense of the owner of the said goods. He has emphasised the word "may" and contended that permis sibility of an act is to be distinguished from a duty under the Statute because what is permissible may not be done and if it is done then there is no direct execution or exercise of a duty or power conferred by the Act. In other words what is done as permissible or incidentally is not done in pursuance of the Statute, In support of these contentions he has relied on Palmer v. The Grant Junction Railway Co. (150 E R 1624) ; Bradford Corporation v. Myers (1916 A C 244) and Vishwanath Sadashiv Natu and another v. Municipal Corpora tion Bombay (A I R 1938 Bom. 410). The facts of the first case are that Grand Junc tion Railway Company was empowered by a Statute to make a railway from Warrington to Brimingham and was empowered by section 154 to receive certain rates for articles carried or con veyed on the Railway. By another section the Company were empowered to become carriers themselves and were authorised, if they shall think proper, to carry and convey articles offered to them upon certain reasonable charges. Section 214 provided that no proceeding could be brought against any person for anything done or omitted to be done in pursuance of the Act unless 14 days' previous notice in writing was given nor unless action was brought within 3 months. Some horses were given to the Company for carrying them from one place to another whereby one of them was killed and the others were injured. An action was brought against the Company and they pleaded want of statutory notice. The Court held that no such notice was required and observed The Act does not compel them to be common carriers ; it only enables them to be so, so far as they shall think fit ; and when they have elected to become so, they are liable in that cha racter, in the same way that other common carriers are. On that ground, I think the 214th section does not apply to this case. The facts of the second case are similar. Bradford Corporation were authorised by a Statute to carry on the undertaking of a Gas Company and were bound to supply gas to the inhabitants of a locality. But they were also permitted to sell coke produced in the manufacture of the gas. They contracted to sell and deliver coke to the plaintiff, and "by negligence of their agent coke was shot through the plaintiff's shop window". More than six months afterwards the plaintiff commenced an action of negligence against the defendants. The defendants pleaded section 1 of the Public Authorities Protection Act, 1893, as a bar to the action. The Court held that the act complained of was not an act done in the direct execution of a statute, or in the discharge of a public duty or the exercise of a public authority, and that the. Public Autho rities Protection Act 1893, afforded no defence to the action. The distinction between compulsory supply of gas and the incidents arising from the exercise of the choice to sell coke was emphasised in the judgment. Viscount Haldane observed it seems to me that the language of section 1 does not extend to an act which is done merely incidentally and in the sense that it is the direct result, not of the public duty or autho rity as such, but of some contract which it may be that such duty or authority put it into the power of a public body to make, but which it need not have made at all. Without discussing the above and other observations made in this judgment I may venture to state that the real distinction which is to be drawn in view of the facts of this case is between a duty performed under the Act and an action taken in the course of a transaction which is permitted by the Act. This judgment of the House of Lords was followed by Beaumont, C. J. in the Bombay case referred to above and a Division Bench held that the protec tion of section 527 of the City of Bombay Municipal Act did not extend to acts done in pursuance of a contract which the Corpora tion was empowered to make but was not required by the Act to do so. The Corporation had issued debentures under section 106 of the Act. There was an allegation of forgery regarding the endorse ments made on those of them which were in dispute and therefore the corporation cancelled them and issued fresh debentures. The plaintiff challenged the allegation of forgery and asked for a declaration as well as for an order that the Corporation should transfer and hand over the original debentures. It was held that the cause of action was clearly in tort and not in contract. Moreover the issue of debentures containing an option of renewal and the giving effect to that option were not acts done in direct execution of any power contained in the statute but were acts done under a contract authorised by the Act. The facts of the present case are different from the facts of the above cases in that section 49 of the K. P. T. Act deals with the question of allowing goods to remain in any wharf or shed for 5 days or more, as well as with the course of action which may be adopted if they are not allowed to remain there for more than 5 days. If the goods are not allowed by the Board to C remain in any wharf or shed for more than 5 days and are caused to be warehoused then this is admittedly an action in pursuance of the Act. I see no difference if the choice of allowing them to remain there after 5 days is exercised. To take a contrary view will amount to holding that whenever a statute gives a choice between two alternatives the mere fact that there is a choice makes the adoption of one of them an indirect execution or incidental exercise of power. I may refer to Prag Narain Baragra v. The Karachi Port Trust to amplify the point under decision. This is a judgment on a suit for damages. An objection was raised that it was barred by section 87 of the Karachi Port Trust Act. The plaintiff tried to meet it by urging that damage was caused to his goods while landing them or conveying them from the wharf to the import yard. This act, according to the plaintiff was performed as carriers and therefore the liability arose from the character of being carriers and not under the Act. Legatt, J. held that section 32 of the Karachi Port Trust Act, 1886, provided that the Board shall land and ship all goods front and in any vessel coming to the wharf and `shall' provide for the convenient shipment and landing and storing the goods. Section 43 con ferred on the Board the power to frame a scale of charges for landing, shipment, storage, removal of goods, use of wharves, and for services which were to be performed by the Board or their servants. Section 46 provided for the detention of the goods till the charges were paid, and declared that charges in respect of goods to be removed were payable before the goods were removed. Section 49 provided that the Board might remove at the risk and expense of the owner to a warehouse, within or without the premises of the Board, goods left unclaimed for 5 days. Section 56 gave the Board power to frame by laws for regulating. The removal of goods within and from the premises of the Board. He held that the goods were not conveyed to the import Yard for the benefit of the owner or consignee, but for the convenience of storage by the Board. It was merely a part of the act of landing and delivery just as would be the removal of the goods from one part of the wharf to another. Under the same Act in the present case goods of the plaintiff remained on the premises of the Board until they were removed in February 1952. The learned counsel for the plaintiff has tried to take advantage of the mere fact that they were not in the meantime removed by the Board under section 49 of the Karachi Port Trust Act, 1886 and warehoused them at the risk and expense of the plaintiff. I do not think that the leniency shown can be construed to be an act which was not done in pursuance of the statute. If the Board were aware of the disability of the plaintiff, arising from tile absence of his control over the documents to present them and remove the goods and if they adopted a course premissible under the Act and allowed the goods to remain on its premises, is a shed or outside a shed, with which controversy I am not at present concerned, then it can not be said that the responsibilities and obligations of the Board, whatever they may be on account of this act, did not arise directly from the provisions of the Act. Mr. Arifin has in the last resort contended that the omission of the Board to warehouse the goods was not leniency, but high handedness, because the plaintiff could remove the goods without the documents which were seized by the Special Police and that the Board were in fact maliciously helping the police. It is true that there is nothing in the Act itself to make it necessary that any documents should be presented for getting the goods released, but under section 56 of the Act bye‑laws can be made for regulating the reception and removal of goods, within or from the premises of the Board, and Bye‑law 40 prescribes that to obtain delivery of goods, persons taking delivery must present completed Bills of Entry, Invoices, if any, Port Trust Wharfage Entry, Bill of Lading or Delivery Order and the officer to whom these documents are to be presented, on being satisfied that they are in order and on being furnished with an acknowledgment for the goods, can grant delivery. Now the documents which were seized by the police under Exh. 134 include "Bill of Entry, Invoices, etc." Mr. Arifin has argued that under clause (1) of Bye‑law 40 presentation of invoices was not necessary until demanded and fresh Bills of Entry could be obtained and presented. Similarly, according to him, under clause (2) of Bye‑law 40 a Delivery Order could serve the purpose of a Bill of Lading. This may be so, but the case of the plaintiff is not that proper documents were presented and yet the Board did not release the goods. The conclusion of the above discussion is that section 87 of the Karachi Port Trust Act, 1886, applies to this case and that the suit is not maintainable against the Trustees of the Port of A Karachi because notice required under the section was not given and also because it is barred by time according to its provisions. Turning now to the objection raised by Mr. Aziz on behalf of the Government of Pakistan, I may mention that this objec tion has not been discussed by the counsel of the parties as elaborately as the objection raised by Mr. Tikamdas it is based entirely on Article 2 of the Limitation Act, which is as follows :‑ Description of suit. Period of limitation Time from which period begins to run

2. For compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in British India. Ninety days. When the act or omission takes place If this Article applies to the present case, then the suit is clearly time barred, but Mr. Arifin has argued that it does not apply, because, according to him, the order, Exh. 134, issued by the Police could not be validly issued in pursuance of any enactment. This argument is not strictly in accordance with the provisions of the Article because the Article does not speak of those deeds which are done in pursuance of an enactment but of deeds "alleged to be in pursuance" of a statute. They may not be truly in pursuance of a statute provided the allegation they are in pursuance of it is bona fide and not a mere pretention. This basic distinction branches off into two distinctions in view of the facts of this case. A distinction is firstly to be drawn between the strict legality of the order of the police and their allegation that it is legal. A further differentiation is to be made between the allegation of legality of the Special Police and the obedience of the order by the Collector of Customs who obeyed it allegedly taking it to be legal. The plaintiff has made the Government of Pakistan responsible for the acts of the Special Police as well as the Department of Customs because they are equally sinews of the Central Government, and Mr. Arifin has contended that if anyone of the two Departments has acted without good faith then the protection of Article 2 is lost to the Government. Their good faith, according to counsel, should not be presumed because the Special Police were chiefly interested in investigation and prosecution, and the Department of Customs was interested in helping the Police. This argument is based on a presumption of bad faith of Public Officers in the discharge of their duties as far as the Special Police are concerned, and on a presumption of bad faith of the Collector of Customs as far as his obedience to the order of the police is concerned. These presumptions are not justifiable. The test is whether the officers have acted so inconsistently with the law as to be regarded to have acted in bad Mr. Arifin has analysed sections 94 and 550 of the Code of Criminal Procedure under which the police order, as suggested by Mr. Aziz, was or could be issued, and has argued that under : Section 55.0 the Police could seize the goods but could not direct the Collector of Customs to detain them, and that under section 94 the Police officer could order production and seizure of the goods, but could not order their detention. This is correct but this argument applies, and is sought to apply to the detention of goods only because the documents were ordered to be produced and were seized by the Police themselves. Mr. Arifin has therefore contended that the seizure of the documents was immaterial because on their account the goods could not be detained and the plaintiff could not be deprived of their enjoy ment. This is not correct. On the contrary the true position, is that the goods were on the premises of the Board and therefore even if the Collector of Customs had been directed to surrender them, he could not carry out the order without the concord of the Board. Their removal from the premises of the Board is regulated by bye‑law 40 which means that they could not be removed without the presentation of satisfactory documents to the officers of the Board. Mr. Aziz has therefore rightly des cribed the situation by saying that the seizure of the documents has caused the detention of the goods. Finding himself in difficulties Mr. Arifin retraced steps and contended that the issue of limitation raised by Mr. Aziz is a mixed question of law and fact, and therefore cannot be decided as a legal issue. In order to substantiate this contention he referred to the averments made in the plaint and to a couple of sentences which are found in the statements of two witnesses. He submitted that according to the plaint the goods were detained by the authorities of the Customs Department and pointed out that two witnesses had deposed as follows :‑ "The cases were released when the police instructed the Customs to release them". (P. W. 1, Partner of the Clearing Agents of the plaintiff). "On the recommendation of the Investigating Officer, I sent requisition to the Collector, Customs, Karachi, to detain the goods in dispute". (D. W. 1, the D. S. P. Special Police). I assured the learned counsel that if the issue was such a mixed issue of fact and law as could not be decided without first deciding questions of fact then I would leave it open and would hear the counsel of the parties at length before giving my finding on it and may even decide all the issues which have been framed in this suit in spite of the agreement of the learned counsel to the contrary. I have, therefore, examined the objection with care. In the first place it is not correct that the plaintiff has pleaded that the goods were exclusively detained by the Depart ment of Customs. In fact, the plaintiff has taken no definite position in this regard. Paragraphs 6, 7, 8 and 10 of the plaint are important in this respect. He has averred in para graphs 6 and 9 of the plaint that the Collector of Customs delivered the documents to the Special Police, but regarding the goods leis stand in paragraphs 6, 7 and 10 is that the Collector of Customs and the Board jointly detained them and that trey were in the custody of the Board "and/or" the Collector of Customs "and or" the D. S. P., Special Police. Exclusive responsibility of the Collector of Customs for the detention of the goods was not conceived by the plaintiff' and he thought it good enough to plead that all the three authorities had acted wrongfully. If evidence has been produced to prove that the Department of Customs alone detained the goods then this is a departure from the pleadings. Under the law, the goods could not be in the custody of the Collector of Customs, nor could he detain them without having their custody. A partner of the plaintiff's Clearing Agents has said that the Customs released them on the instructions of the Police, yet under the Law, they could not be released without the presentation of proper documents to the officers of the Board. The Board have pleaded in paragraph 7 of their written statement that the goods were released immediately on the presentation of the documents and the plaintiff has not disputed this averment and has claimed no issue on it. The statement of the other witness which has been reproduced above, contains a fact which is not denied. I am thus led to the conclusion that the objection of Mr. Aziz that the suit is barred by Article 2 of the Limitation Act against the Government of Pakistan can be decided as a legal issue. The decision of this issue must be, as far as I can see, that the suit is barred against Pakistan by Article 2 of the Limitation Act. The Board did not apply earlier for the determination of the above legal issues raised by them as preliminary issues and are in this sense at least partly responsible for the prolongation of the litigation by 4 or 5 years and for unnecessary expense of oral evidence. The Government of Pakistan did not raise the objection of limitation earlier than at the time of arguments before me. This conduct should affect costs. The suit is, therefore, dismissed with costs which will be only half of the fees of the Counsel for the defendants. A. H. Suit dismissed.