' I. MAHMUD, J.-This Letters Patent Appeal is from a judgment and decree passed by a learned Single Judge of the erstwhile High Court of west Pakistan, Karachi Bench, Karachi dated Ist September, 1967 in Suit No, 118 of 1963 on the Original Side, decreeing the suit of the respondent in the sum of Rs, 1,17, 539.84 as prayed.
2. The Suit was filed by the respondent, Muhammad Siddiq son of Haji Amiruddin who was carrying on business as commission agent in the name of Shams Company at Karachi. The appellant firm, Malik Goods Transport Company, was engaged as common carrier in the business of transporting goods for hire by land in motor trucks. The case of the respondent was that between 7th February and 5th September, 1962, he entrusted to the appellant at Karachi, 21 consignments consisting of a total number of 78 bales and 10 cases of art silk yarn, cotton yarn and staple yarn of the total value of Rs, 1,12,175.75 for carriage to Lyallpur (now Faisalabad) for delivery to the Bank of Bahawalpur Ltd., the United Bank Limited and the Standard Coop. Bank Limited or to the orders of these banks in terms of truck receipts (Bilties) issued by the appellant acknowledging receipt of the goods bearing specific numbers for each consignment. The arrangement between the respondent and the banks was that banks used to make advances to the respondent against these truck receipts and the banks in turn used to obtain written undertaking from the appellant agreeing "to hold the goods covered by the truck receipts as the exclusive property of the bank and not to deliver the said goods without authority in writing or not to allow removal of the goods from its possession for any cause or in any circumstances whatsoever." The Banks then used to forward the truck receipts to their branches at Lyallpur along with demand drafts drawn by the respondent to the orders of the banks on the ultimate purchasers along with bills. The truck receipts showed the Lyallpur branches of the respective banks as the consignees of the goods. Shaikh Abdul Ghani and his firm were the ultimate purchasers of the goods and he was to retire the Bilties by making payment to the bank's branches at Lyallpur and take delivery of the goods from the appellant. As Bilties were lying unretired, they were being returned to the Karachi banks who were demanding repayment of the loans from the respondent. Therefore, the respondent made enquiries from the appellant as to the whereabouts of the goods and he was informed by the manager of the appellant on 6th November, 1962, that the purchasers had failed to retire the Bilties and take delivery of the goods and that the goods were still lying with the appellant at the place of destination. Therefore, the respondent called upon the appellant to bring back the goods to Karachi and return them to him, which the appellant agreed to do on payment of expenses of transport. But, the appellant failed to return the goods. Hence the respondent filed the suit claiming Rs, 1,17,539.84 as the value of the goods (including interest and expenses) lost due to improper delivery in breach of the terms of entrustment and by fraudulent and negligent act of the appellant.
3. In the written statement, the case set up by the appellant was that these goods were delivered to Shaikh Abdul Ghani, proprietor of Islam Corporation, Sooter Mandi, Lyallpur, on the express written instructions of the respondent dated 27th May 1962 (Exh. 9/1). The appellant, therefore, pleaded that as it had delivered the entrusted goods on the written instructions or the respondent to Shaikh Abdul Ghani, it had executed its duty as common carrier under the Carriers Act, 1865, and accordingly denied negligence and fraudulent breach of entrustment as alleged by the respondent.
4. After recording the evidence led by the parties, the learned trial Judge held on the main issues, that the entrustment of the goods to the appellant for delivery to the consignee banks was established ; that letter Exh. 9/1 dated 27th May, 1962 was a forged and fabricated document and that the witnesses produced by the appellant were giving false evidence and their testimony was belied by the circumstances of the case and, in particular, the false admission of the appellant in Exh. 8/7 dated 8th November, 1962 that the goods were still lying with the appellant when they had already been wrongly delivered to Shaikh Abdul Ghani. Accordingly, he decreed the suit of the respondent as prayed.
5. The main defence of the appellant rested on the genuineness of the alleged letter (Exh. 9/1) expressly directing the appellant to deliver the goods to Shaikh Abdul Ghani without retiring the Bilties.. The letter Exh. 9/1 reads as follows :- "To ' Mr. Malik Mumtaz, 27th May, 1962 ' Assalamoalaikum ! Karachi-2 ' The goods which we book through the Bank `Builty' at your Transport Company, you please deliver the same to Shaikh Abdul Ghani of Sootar Mandi, Lyallpur without Builty we are responsible for the same. Shaikh Abdul Ghani shall bring the T/R from the Bank later on and hand over the same for Shams Company.
(Sd.) Muhammad Siddiq."
' Mr. Khalid Ishaque's submissions were, therefore, directed to show that the learned Judge in rejecting this letter as a fabrication and forgery, had misconstrued the evidence of witnesses, the correspondence exchanged between the parties and the facts and circumstances of the case.
6. Mr. Khalid Ishaque referred to the following facts and circumstances which, according to him, showed that the respondent was fully aware and had knowledge that the appellant was allowing Shaikh Abdul Ghani to take delivery of the goods without Bilties and, therefore, it was reasonable to infer that the respondent must have given the letter of authority (Exh. 9/1) to Shaikh Abdul Ghani. He referred to the evidence from which it appeared that there was a close and intimate business association between the respondent and Shaikh Abdul Ghani for whom the respondent acted as commission agent and for whom he used to purchase goods at Karachi, so much so that the respondent was willing to oblige Shaikh Abdul Ghani by allowing him to take delivery without payment to the banks, as he was short of money. Counsel also relied on letters in Urdu, Exhs. 8/15 to 8/22, written by the respondent to Shaikh Abdul Ghani between 22nd May and 2nd October, 1962 after the alleged Exh. 9/1 was given. In some of these letters, the respondent admitted that Shaikh Abdul Ghani had been taking delivery without Bilties and even selling the goods to parties, such as Amjad is Soot Store and other parties, but was not releasing the Bilties from the banks, with the result that the banks were pressing him for repayment of the advances.
7. Counsel further submitted that the evidence of Shaikh Abdul Ghani should have been accepted by the trial Court, which was to the effect that as he was short of money and could not release the Bilties, he approached the respondent in Karachi and requested him to permit him to take delivery of the goods without the Bilties. It was, therefore, to oblige him that the respondent gave the letter, Exh. 9/1, to Shaikh Abdul Ghani in the presence of Ashiq Ali broker. That on returning to Lyallpur, Shaikh Abdul Ghani delivered the letter to Alimuddin (D. W. 4) manager of the appellant who also stated that he confirmed the position on telephone with the respondent 1 That Muhammad Jamil (D. W. 2), Munshi of Shaikh Abdul Ghani had stated that he recognized the handwriting of the respondent on Exh. 9/1 from other letters received from him.
8. On the other hand, Mr. Munawar Abbas, learned Counsel for the respondent, relied on the following circumstances which, according to him, disproved that Exh. 9/1 was in the handwriting of the respondent. According to Counsel, the only proof of Exh. 9/1 is the evidence of Shaikh Abdul Ghani that the respondent gave Exh. 9/1 to him in the presence of Ashiq Ali broker. But no one ever saw the respondent writing the letter, and Ashiq Ali in his evidence stated that he was unable to identify it. That Shaikh Abdul Ghani was a most interested witness, as he had been receiving the goods without payment from the appellant who had colluded with him and was supporting the appellant in order to protect the appellant from a possible prosecution for criminal breach of trust.
The circumstances also belied the genuineness of Exh. 9/1. Deliveries were made to Shaikh Abdul Ghani without Bilties from 30th July 1962 (Exh. 9/2) and were completed on 8th September 1962 (Exh. 9/5) although Exh. 9/1 was allegedly given some 2 months earlier. Again, on respondent's enquiry on 7th November 1962 (Exh. 8/6) as to the, whereabouts of the goods, the appellant infomed the respondent by letter, Exh. 8/7, dated 8th November 1962 that the goods are still lying undelivered with it and would be returned to the respondent if he would write a letter agreeing to pay freight of both sides at Karachi, to which the respondent readily agreed by Exh. 8/8 dated 10th November 1962. This admission of the appellant was specifically pleaded in the plaint in paragraphs 5 and 6 and a copy of Exh. 8/7 was also annexed to the plaint. But the appellant's bare deniale of these Exhibits cannot be accepted. Alimuddin D. W. 4, the appellant's manager, admitted in evidence that Exh. 8/7 was in the handwriting of Imdad Ali, Clerk of the appellant, sitting in Court, but Imdad Ali, did not step into the witness box to contradict this statement. There is also no mention of Ex. 9/1 in any subsequent correspondence exchanged between the parties. In none of the letters, Exhs. 8/1 to 8/5, dated 31st July 1962 to 28th September 1962 has Shaikh Abdul Ghani accepted that he had taken delivery of the goods pursuant to Exh. 9/1. In these letters, he has been assuring the respondent that he would try to get the Bilties released from the banks as soon as possible.
9. The handwriting of Exh. 9/1 was referred to two handwriting experts, namely Muhammad Khalil and Cyril G. Bhan. They differed in their opinion, with the result that the learned Judge himself compared it with the admitted documents (Exhs. 8/15 and 8/26), which he was competent to do under section 73 of the Evidence Act, and agreed with the opinion of the handwriting expert Cyril G.
Bhan that he had no hesitation in holding that Exh. 9/1 was a forged document. There was difference in writing, signature and the printing on the letterhead. We have ourselves compared Exh. 9/1 and we are, with respect, in full agreement with the learned Judge. In fact, Mr. Khalid Ishaque was not able to satisfy us that the learned Judge was wrong in his opinion, but submitted that Exh. 9/1 was deliberately written by the respondent in such a suspicious manner in order to leave room to disown it later in case the banks took action against the respondent for colluding with the appellant to commit breach of trust by delivering goods of the banks without Bilties. But, this is a mere conjecture and no suggestion of it was to the Plaintiff in cross-examination.
10. Mr. Khalid lshaque next submitted that if Exh. 9/1 containing the express permission stood unproved, yet there is evidence from which it may be inferred that the respondent gave implied permission to the appellant to give delivery of the goods to Shaikh Abdul Ghani without Bilties.
Counsel referred to the respondent's letters to Shaikh Abdul Ghani, Exhs. 8/15 to 8/26 (above referred to) from which the respondent's knowledge that goods were being delivered to Shaikh Abdul Ghani without Bilties could be readily inferred and in which he did not object to it nor lodged a protest. However, this plea of implied permission was not raised in the written statement, in which the appellant's case was one of express written permission. Mr. Munawar Abbas, therefore, referred to several decisions from various jurisdiction to the effect that a party should not be allowed to depart from his pleadings and set up a different case in the course of evidence at the trial. He referred to Haji Gaffar Habib Janu v. Wakil Ahmed (1), All Amir v. Dalmia Cement Ltd. (2) and Lala Hem Chand v. Lala Pearey Lal and others (3). Mr. Munawar Abbas also submitted that the respondent was not cross-examined on the alleged implied permission nor was he confronted with his admission contained in Exs. 8/15 to 8/26 under section 145, Evidence Act, and, therefore, according to counsel, the plea of implied permission could not be advanced without giving witness an opportunity to give an explanation. In this regard he referred to Bal Gangadhar Tilak and others v. Shrinivas Pandit and others (4) and Ananta Kumar Sarkar v. Sebarate Ulla Sardar (5). We are inclined to agree with his submission and, therefore, we disallow the plea raised by Mr. Khalid Ishaque.
11. Finally. The submission of Mr. Munawar Abbas was that the appellant was a common carrier and as held by the Privy Council in the Irrawaddy Flotilla Company v. Bhugwandas (6), which was applied in Indian General Navigation and Railway Co v. Baroda Kanta Dev (7) and also in Rivers Steam Navigation Co. Ltd. v. District Council of Baqar Ganj (8) the liability of a common carrier is that of an insurer and originates not in contract but from the exercise of public employment for reward. Even if, as contended by Mr. Khalid. Ishaque, the respondent had consented to deliveries without Bilties, the fact remains that the banks, who were consignees of the goods, had not given their consent and, as such, a common carrier is not absolved from its liability for making improper deliveries. Mr. Khalid Ishaque pointed out that in that event, the proper persons to sue should have been the banks, but they have not come forward to sue the appellant. We see no force in this contention. The respondent B having borrowed moneys from the Banks on the security of the truck
(1) PLD 1959 Kar. 611 (2) PLD 1961 Kar. 255
(3) AIR 1942 P C 64 (4) AIR 191 5 P C 7
(5) PLD 1966 Dacca 114 (6) I L R 18 Cal. 620
(7) PLD 1954 Dacca 64 (8) PLD 1970 SC 67 ' receipts, part of which have been repaid, still retained interest in the goods and had a cause of action for indemnity against the appellant.
12. Finally, Mr. Khalid Ishaque raised the question of limitation under section 10 of the Carriers Act, but the plea was not taken in the written-statement, nor any issue was framed thereunder.
Limitation in c this case being a question of mixed fact and law, we cannot permit the, counsel to agitate it in this appeal.
13. For the foregoing reasons, we are fully in agreement with the conclusion reached by the learned Single Judge. There is no merit in this appeal. It is accordingly dismissed with costs.