' MUNIB AHMAD KHAN, J.--- This revision has been filed against the judgment dated 27-4-1991, passed by learned IIIrd Additional District Judge, Karachi (South) in C.A.No,384 of 1985, whereby, the order of the Lower Court, passed in Suit No,522 of 1976, has been upheld and decree is being maintained.
2. The factual position coming on record is that the consignee imported some goods and the ship arrived at Karachi on 26-6-1975 and since the goods were misplaced, therefore, consignee instead of pursuing the matter before the KPT, preferred to take up his matter with the Insurance Company and got the relief from there, thereafter, the Insurance Company on the basis of authority under Subrogation Letter approached the Court and filed suit for recovery of Rs,26,057 against KPT. The suit was decreed and appeal against that order was also dismissed. Hence this revision by KPT.
3. Learned counsel for the applicant submits that the consignment was reached on 26-6-1975 but in the absence of any intimation from the consignee, the KPT shifted that consignment, after waiting for five days, to its Shed on 14-7-1975 where, on inspection on 22-8-1975, it was noticed that the goods have been pilfered and are not available, hence an F.I.R. Was lodged on the same day while the consignee was intimated by Letter dated 5-9-1975. Learned counsel for the applicant has taken plea that since the consignee had not approached the KPT within five permissible days, therefore, KPT was not liable for any theft or pilferage, which is being committed while the goods were. Kept in Shed after removal from Wharf. He has further pointed out sections 49 and 87 of the KPT Act, 1886 and states that any removal of the goods will be at the risk of the consignee, therefore, KPT is not responsible and that a required action of suit within six months as provided under section 87 of the KPT Act was not taken, therefore, suit was barred. He submits that cause of action is to be counted from the date of incident, which is to be counted from 26-6-1975 while the suit has been filed on 27-2-1976 i.e, after six months, hence it was time barred. He has relied upon AIR 1974 SC 943 and PLD 1975 Kar.
425.
4. On the other hand, learned counsel for the respondent has contended that this is a revision application and factual position has properly been discussed by both the Courts below and there is no illegality or material irregularity in the orders of the lower Courts. He submits that section 49 deals removal of the goods and that cannot be stretched to present situation of theft and that the cause of action is to be counted when the goods were pilfered from the Shed and were noticed by the applicant on 5-9-1975. He further submits that removal in this case from wharf to Shed is within the premises of KPT and KPT is responsible to act like prudent mind and safeguard the interest of its customers or clients while in the instant case the goods have been stolen notwithstanding the fact that the KPT area has been guarded and bonded while under the Shed some extra security has been provided. He has further stated that section 87 does not come into play as same provides six months time for filing of the suit while in the instant matter, the respondent was intimated on 5-9- 1975 by the KPT, whereafter, the respondent gave a required statutory notice on 29-12-1975, therefore, time to be counted from the date of expiry of the limit given in the statutory notice and even if the time is counted from the date of notice, it will end on 5-3-1976 as discussed by the appellate Court.
5. After hearing the learned counsel, it appears that the main emphasis before the Appellate Court was put up in respect to sections 49 and 87 of the KPT Act but the appellate Court besides discussing both these sections has also taken into consideration the factual position and the merit of case involved and has observed that both the sections are not applicable and the suit was filed within time before the trial Court. The appellate Court has also considered the evidence, which was brought, by the parties and has taken care of by observing that the evidence has properly been appreciated by the lower Court.
6. I have heard, the learned counsel for the parties and have gone through the record. To consider the arguments of the applicant section 49 needs a reference and same is reproduced as follows:-- "49. Whenever goods, which have been landed have, without any default on the part of the Board, been left for five clear days on or in any wharf or shed belonging to the Board, the Board may cause such goods to be removed either to any warehouse belonging to them, or, with the consent of the Chief Officer or 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.
[Whenever any goods are so removed, the Board shall give notice of such removal to the consignee or other person concerned by notification in the official Gazette specifying therein the name of the ship which brought the goods, the date of her arrival, and the numbers, marks and descriptions of the goods so far as the same appear; and the consignee of such goods or other person to whom notice has been given as afore-said, in addition to the expenses of the removal of the same, shall be liable, in case the goods are removed to any warehouse of the Board, to a charge for warehousing for the time during which the goods shall remain in the said warehouse].
'If the goods are removed to a public warehouse the said consignee shall be liable to the charges for warehousing goods in such public warehouse and the said goods shall remain subject to all liens to which they would have been liable if they had remained in the possession of the Board, and shall be subject to the power of sale, hereinafter given."
7. The said section does not attract as by virtue of this section, the KPT has power to remove the goods to any Shed if within the given five days goods are not being removed from wharf. The said section also provides that when goods A are being removed a notice would be given to the consignee but in the instant case only available notice appears to be of 5-9-1975. There is no dispute in respect to the removal of the goods but of pilferage, therefore, keeping in view the dispute, this section does not come into play.
8. On the other hand, section 87 of the KPT Act, relied upon by the learned counsel for the applicant, reads as follows : "87. 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."
9. This section shows that the suit has been prohibited under the Act until a notice in writing has been sent, giving therein the B cause and that too action to be initiated within six months. In the above factual position, the only notice issued by the KPT in respect to information about the theft of the property is dated 5-9-1975 while the required statutory notice has been given by the consignee on 29-12-1975, therefore, even if the date is counted from the date of notice issued by the KPT then the suit filed on 27-9-1976 was within the time fixed by section 87 of the Act. It has further been noted that under the provisions of section C 87, the date of cause of action would be from the date of notice on which the intimation was given to the consignee. The plea of the learned counsel that the cause of action is to be counted from the date of landing of the consignment or its removal to the Shed on 14-7-1975 is not correct as even if the KPT is removing the goods to its Shed or to a Bonded House then it is the duty of the KPT under the law to act like of C the prudent person and take all cares to safeguard the goods or at least to minimize the loss which can be occurred in handling and storage as no law gives a licence to any person having an authority or domain over an entrusted property to misuse that authority or to put that property contrary to safety and security requirements. In the instant case, the goods were removed from the Shed of the KPT, which sheds are normally secured by the security staff and moreover the entire area of the KPT is under guards and vigilance and private person's entry is on the passes. The KPT is responsible in respect to the goods remained with it till the action in respect to the goods is finalized in accordance with law but its liability cannot be absolved when the goods are pilfered due to Legligence of its officials.
In the instant case, there is no reason which involves the consignee that he was responsible towards pilferage while the KPT has not given satisfactory reply. Both the civil Court as well as appellate Court have taken care of examination of the evidence in detail and I too concur with their opinions by observing that no illegality or material irregularity has been committed in the impugned judgment, hence this revision is dismissed with costs.