MUHAMMAD SADIQ LEGHARI, J.--On 29-10-1990 M/s Rice Export Corporation of Pakistan (Pvt.) Ltd.
(hereinafter referred to as the "Plaintiff") invited tenders for handling of 100,000 (10% more or less) bales of gunny/hessian bags/heavy cases at its godown on the premises mentioned therein.
Defendants M/s Fazilat Enterprises submitted tenders and the plaintiff accepted it. Consequently the parties entered into a contract dated 8-11-1990 for handing of the bags at the godown mentioned above. On 28-2-1991 stocks/bags etc. available in the godown were delivered to the defendants/contractor under the certificate signed by the parties.
2. About six days later, one of the godowns namely H-l Binishell at Qasim Rice Godowns caught fire which resulted in heavy losses of the bags stored therein; After that differences arose between the parties. The handling contract was then assigned to a new contractor.
3. On 2-12-1993 the plaintiff filed present suit for recovery of losses/damages to the tune of Rs.
1,39,79,536.10 pleading therein that the defendants/contractors being responsible of taking care of the godowns and stocks/bags stored therein neglected and the godown H-I Binishell caught fire in the result whereof bales/bags worth Rs.65,890,235 burnt and also they returned bags/stocks short of the quantity delivered to them at other godown value whereof became Rs.37,53,644.35. It was also alleged in the plaint that the defendants/contractors, despite direction from the plaintiff, declined to segregate the damaged material from the saved one and shifted them to another godown which caused the plaintiff a loss of Rs.69,500. The plaintiff engaged M/s. Iqbal A. Nanjee, Surveyors for assessing the loss suffered by them and paid them Rs. 14,750 as their fee.
4. After service of notice the defendants filed written statement pleading therein that although they had entered into a contract and received the delivery of possession of the godown and stocks/bags stored therein but godown H-I Binishell at QRG was never handed over to them nor it caught fire due to any negligence on their part. According to them the said godown and stocks therein were in possession of M/s Moosa Abdullah, contractor of. the plaintiff since August 1990.
5.On the pleadings of the parties, following issues were settled:--
(1) Whether the defendant caused the fire to the plaintiff's godown? If so, did he do so either deliberately or negligently?
(2) Whether the defendant committed breach of the agreement between the plaintiff and the defendant?
(3) What loss, if any, was caused to the plaintiff by the fire and by breach, if any, of the contract between the plaintiff and the defendant?
(4) What relief, if any, is the plaintiff entitled to?
6. Thereafter, the plaintiff entered into evidence and examined Muhammad Ati'q Khan, Deputy Manager on 7-2-2003. His examination-in-chief was incomplete when the suit was adjourned to another dated. Strangely on 14-4-2003 plaintiffs learned counsel made a statement before the Court that he closes his side without further examination/further evidence. As the Vakalatnama was not signed by the Trading Corporation of Pakistan who had succeeded the plaintiff the matter was adjourned. Thereafter the learned counsel for the plaintiff filed duly signed Vakalatnama and made a statement on 18-8-2003 which he had made on the earlier occasion i.e. 14-4-2003. On the same date the learned counsel representing the defendants also made a statement that he does not want to lead any evidence. The case then came to the stage of arguments.
7. Today Mr. Raja Aftab Ahmed learned Advocate for the plaintiff argued the case.
8. Issues 1, 2 and 3 are inter-linked, therefore I take up all of them together.
Plaintiff counsel argued that although the evidence of plaintiff's witness Muhammad Atiq is not furnishing all the details yet the documents produced by him do prove the delivery of the possession of the stores/godowns including godown H-I Binishell at QRG and the articles lying therein, therefore, the suit can be decreed as prayed. He further contended that even if there are no details of the losses suffered by the plaintiff yet the Court can enter into the exercise of assessing the loses itself on the basis of the material placed before it and decreed that suit. In support of this contention learned counsel for the plaintiff has referred to the pronouncements in the cases of Mrs. Zahra Zaidi v. M. Anwar Khan Ghauri (2004 CLC 223) and The Lahore Central Cooperative Bank Ltd. v. M/s Haji Allah Dad Fida -Hussain Merchants and Commissions Agents Grain Market, Pattoki (1987 CLC 1435).
9. Only incomplete deposition of Muhammad Atiq Khan is on record. Plaintiff's learned counsel states that evidence is to be considered as complete because he had no other document to produce through the witness nor the defendant's side present for cross-examination.
10. In view of the statement of the plaintiff's counsel that he does not want to produce any other material and the fact that both the learned counsel had got the case fixed for final argument. I consider the evidence of plaintiff's witness. The witness has produced the contract executed between the parties as Exh.P-1, schedule containing the terms and conditions thereof as Exh.P-2 and the certificates showing the delivery of stocks/stores to the defendants contractors as Exhs.P- 3, P-4 and P-5. Although these documents do establish the execution of the contract, terms therein and the delivery of the stocks to the contractors yet the same do not in any manner, render ample proof of negligence on the part of defendants. No other documents supporting the contentions of the plaintiff has been produced. The witness has also not talked of any losses in his deposition. He has not stated a single word regarding the losses allegedly suffered by the plaintiff. He is even silent in respect of fire caught by the godown. In absence of any such evidence it is really difficult to 'pass a decree against the defendants because any such decree will be based on no evidence.
None of the pronouncements referred to above comes to the assistance of the learned Advocate in the circumstances.
11. In the light of the findings recorded above, issues are answered accordingly.
Issue No.4
12. The suit is liable to dismissal, I dismiss it expressing my dissatisfaction about the way the same has been handled by the parties and their learned Advocates.