' MUHAMMAD TASNIM, J.--- Through this appeal the appellants have challenged, the judgment and decree dated 27-2-2007, 27-3-2007 passed by 1st Additional District Judge, Karachi West, in Civil Appeal No,76 of 2005 allowing the appeal of respondent whereby judgment and decree dated 18- 5-2005 and 24-5-2005 passed by IIIrd Senior Civil Judge, Karachi West, in Suit No,251 of 2000 was set aside.
2. The facts leading to this appeal briefly stated are that respondent imported 1500,000 M. Ton RBD Palm Oil from Malaysia under Letter of Credit No,MPB/LC/99/11075, dated 8th March, 1999 established by it through Metropolitan Bank Limited, Main Branch, Karachi. The respondent paid a sum of US $ 7,26,000.00 being the invoice value of the consignment, to the beneficiary / shippers of the goods. The consignment supplied by the shipper was in good condition received by Appellants Nos.1 and 2 on board their vessel "CHANGI" at Port "SANDAKAN" under Bill of Lading No,SAN/QAS/02 dated 18th March, 1999 for carriage and delivery to the respondent at the Port Qasim, Karachi. The vessel carrying the consignment arrived at the Port of Karachi on or about 13-4-1999 and, as required under the law, discharged it in bulk in the custody of Port Authority which they have received as statuary bailee in Customs Bonded Warehouse/Shore Tanks, owned and operated by Port Qasim Karachi. The discharge of commingled shipment including the suit consignment from the ship in the shore tank was supervised by appellants' surveyors and other concerned parties attending surveyors and after its completion the bulk of the cargo discharged from the ship into the shore tanks, was jointly surveyed, examined and its quantity assessed and ascertained by the representative/ surveyors of appellants, consignees and port authority or their licensees, shore tank owner and found it to be 2982.637 metric tons only as against its manifested quantity of 2999.857 metric tons RBD Palm Oil. Thus, the relevant shipment was short landed in total to the extent of 17.220 metric tons and the suit consignment was accordingly short landed proportionately from the ship into the shore tank to the extent of 8.610 metric tons. The claim was lodged for the afore-said short landed quantity by the respondent upon the present appellants. The present appellants repudiated the claim, hence the respondent was forced to file Suit No,251 of 2000.
3. In the afore-said suit after framing the issues the learned IIIrd Senior Civil Judge, Karachi-West, who was ceased of the matter recorded the evidence of the parties. The respondent side examined Fayyaz Qureshi, Customs representative, as P.W.1, Javed Iqbal, Pacific Surveyor, as P.W.2, Syed Waseem Ahmad, Bank Officer, as P.W.3, Safdar Hussain, representative of Pakistan Customs Terminal, as P.W.4, and Akhtar Hanif, respondent representative, as P.W.S. The present appellants only examined one witness Abdul Qayoom, Surveyor, as D.W.1. After the afore-said evidence of the parties the arguments were heard and the learned IIIrd Senior Civil Judge, Karachi-West, dismissed the suit vide judgment and decree dated 18-5-2005 and 24-5-2005.
4. The respondent felt itself aggrieved and filed Appeal No,76 of 2005 before Ist Additional District Judge, Karachi-West, who after hearing the parties allowed the appeal vide judgment and decree dated 27-2-2007 and 27-3-2007, set aside the judgment and decree passed by the learned III- Senior Civil Judge, Karachi-West, in Suit No,251 of 2000 and decreed the suit of the plaintiff as prayed. The afore-said judgment and decree of the learned Ist Additional District Judge Karachi- West, passed in Civil Appeal No,76 of 2005 has been challenged by the present appellants.
5. I have heard Mr. Siddiq Shahzad, learned counsel for the appellants, and Mr. Mazhar Imtiaz Lari, learned counsel for the respondent, and have gone through the record with the assistance of learned counsel for the parties.
6. Learned counsel for the appellants has argued that:--
(i) The judgment and decree passed by the learned IIIrd Senior Civil Judge, Karachi-West, in Suit No,251 of 2000 was strictly in accordance with law and the evidence available before the learned Judge.
(ii) The judgment and decree of learned Appellate Court are based on no evidence and the findings recorded by the learned Appellate Court are sketchy and do not take care the evidence available on record.
(iii) The learned Appellate Court exceeded his jurisdiction while setting aside the judgment and decree passed by the learned IIIrd Senior Civil Judge, Karachi-West, in Suit No,251 of 2000 as according to learned counsel the said judgment and decree were perfect in all respect and did not call for any interference by the learned Appellate Court.
' In support of his contentions learned counsel for the appellants has relied upon the following judgments':---
(1) Messrs Pakistan Edible Oils Corporation Ltd. Karachi v. Universal Transport Corporation and others 1999 YLR 1828,
(2) Collector of Customs and another v. Messrs Fatima Enterprises Limited and others 2005 SCM R 1493, (3) Trading Corporation of Pakistan -v. Inter-Continental Oceanic Enterprises Corporation and others 2000 CLC 1892, (4) Messrs Foremost Trading Company v. Messrs Caledonian Insurance Company Limited and others PLD 1988 Kar.131.
7. As against the above submissions of learned counsel for the appellants Mr. Mazhar Lari, learned counsel for the respondent, has submitted as under:---
(A) The judgment and decree passed by the IIIrd Senior Civil Judge, Karachi-West, in Suit No,251 of 2000 are based on no evidence and on ignorance of material evidence available on record and the same were not sustainable in law.
(B) Learned counsel further submitted that judgment and decree passed by the learned Appellate Court is in accordance with evidence and law and takes care of all the aspects of the matter. The learned Appellate Court has rightly set aside the judgment and decree passed by the learned Court below.
(C) Learned counsel has further invited my attention to the fact that short landed quantity of the Edible Oil was established on record, hence judgment and decree passed by the learned Appellate Court does not call for any interference through the present appeal.
8. Now taking-up the submissions of learned counsel for the appellants it will be advantageous to quote the relevant portion of the evidence of Surveyor Javed Iqbal, P.W.2:-- "...... The suit consignment was part of commingled parcel. As per our record B/L quantity of suit consignment was 1500.000 M.t. As per our record total B/L quantity including suit consignment was 2999.857 M.Tons. On arrival of vessel in suit, suit consignment was discharged into plaintiff nominated shore tank, Messrs Pakistan House Int. Where a joint survey was carried and joint dip statement was prepared. I produce survey report along with joint dip statement Ex.P/9 original seen and returned. (I see joint dip statement along with Exh.P/9 and it bears the signature of shipment surveyor, consignee surveyors, terminal surveyors. As per joint survey at shore tank against total B/L quantity a quantity of 2982.637 M. Tons was discharged from ship into shore tank, and total short landing was recorded to the extent of +7-110 M. Tons suit consignment proportionate landed from ship into shore tank to the extent of +1491.390 M. Tons. And as per our record plaintiff received shortage of a quantity of 8.610 M. Tons). The Chief Officer disclose loaded quantity as 2996.645 M.
Tons and the arrived quantity of relevant shipment was assessed of quantity of 2997.020 M. Tons."
' The afore-said witness in the cross-examination has stated as under:-- " It is correct entire arrived quantity was discharged from ship. It is correct when we found ships tank empty then empty tank certificate was issued."
9. P.W.4 Safdar Hussain in his evidence has stated as under:-- " As per our record the suit consignment is 1500.000 M/tons against this quantity 1491.390 M/cons was discharged from the ship into the shore tank and accordingly 8.610 M/tons was short received from the ship into the shore tank). We have not received any complaint regarding pilferage and leackage. The delivery cannot possible without delivery order as well as permission of the port authority. Delivery order to be issued by the shipping agent. I am deposing evidence on the basis of documents which I have produced."
10. The other witness P.W.5 Akhtar Hanif in his examination-inchief has deposed as under:- " Our Company imported 1500.00 M/tons RBD Palm Oil from Malaysia for importing the suit consignment a L/C No,MPB/LC/99/11075 dated 8-3-1999 was opened in Messrs Metropolitan Bank Ltd. Main Branch Karachi for US $ 7,26,000.00. The shipping documents were received from the Bank against payment of Rs,36588195. I see Exh.P/12 to P/15 are same and correct. The custom authority assessed the import value of suit consignment as Rs,3,75,72,02 and we paid as Rs,20,97,4377 as a Custom duty. I produce four bills of entries as Exh.P/23 to P/26 (0.S & R). For survey of suit consignment we appointed Messrs Pacific Surveyor. Our surveyor surveyed the suit consignment jointly along with ship surveyor. I see Exh.P/9 is same and correct for assessment landed quantity at shore tank a joint survey was carried out and joint dip statement was prepared. According to joint survey our consignment 1491.390 M/tons was discharged from the ship into the shore tank instead of 1500.00 M/tons thus the 8.610 M/tons short discharged from the ship into the shore tank.
The landed cost of short landing quantity is US$ 7430 equivalent to Pak Rs,3,76,491 it includes loss of profit octria charges taxes duties wharfage charges and etc."
' The said Akhtar Hanif in his cross-examination has stated as under:-- " The total consignment of 1500.000 M.Tons was purchased at the of U.S. Dollars 484.00 per M.Tons.
The alleged S/lan mentioned in para 9 of the plaint is 8.610 M.Tons. It is correct to suggest that the consignment in question was not insured with E.F.U. Insurance Co....It is also correct in presence of our surveyor the operation of the discharge of the consignment from the vessel in the shore tanks was completed It is correct to suggest that dry tank certificate was issued and signed jointly by our surveyor after completion of discharge of the cargo from the vessel into the shore tanks. He voluntarily says the shortage is also jointly signed by all the surveyors. It is correct to suggest that the said shortage was manifested by the surveyor upon the basis of measurement obtained from the shore tanks. It is correct to suggest that the dry tanks certificate was issued by the surveyor on the basis that no quantity of oil was lying in the tanks or the vessel. It is correct to suggest that the consignment in question was discharged in commingled form."
11. Similarly, the only witness appeared on behalf of the present appellants, namely, Abdul Qayoom, Surveyor, who deposed in the examination-in-chief as under:-- " I produce the said authority letter as Exh.D/2. (As per our survey report the bill of lading quantity of the commingled consignment was 2999.857 M/Ton. The consignment in question was inspected / surveyed as well as other surveyor of the concerned parties on board the vessel and the commingled quantity of oil available in the tanks of the vessel was measured as 2997.020 M/tons.
The loaded quantity of the said commingled consignment at the port of shipment, was measured as 2996.645 M/tons already short by 3.212 M/tons."
' The afore-said witness in the cross-examination has admitted as under:-- ' It is correct to suggest that for assessment of landed quantity at shore tank a joint survey was carried out and joint dip statement was prepared. (I see Exh.P/20 the said joint dip statement was signed by ship surveyor along with all concerned parties surveyor). I have not produced any document discharging of cargo from the vessel into the shore tank). It is correct to suggest that the manifested quantity of commingled parcel is 2999.857 M/tons. I do not know 2982.637 M/tons was discharged from the vessel into the shore tanks. It is correct to suggest that the arrived quantity is more than loaded quantity and arrived quantity is less than the manifested quantity. It is correct to suggest that the cargo of the parties is tankwise B/L wise and namewise is mentioned in our survey report which is delivered to ship agent and I have not brought the said survey report today. (I do not know that the B/L quantity of suit consignment is 1500 M/tons). Against the quantity 1491.390 M/tons was discharged from the vessel into the shore tanks and 8.610 M/tons was short discharged from the vessel into the shore tanks accordingly its percentage is 0.57%. It is correct to suggest that Exh.D/4 the dry tank certificate is not bearing the signature of terminal representative or their surveyor. It is correct to suggest that the survey was not conducted in my presence and I am deposing on the basis of documents. It is 'correct to suggest that those documents I produced do not reflect the figure of the suit consignment. It is correct to suggest that shore tanks figure is authentic than the loaded quantity and arrived quantity."
12. From the reading of above quoted pieces of evidence it is proved on record that short landing of 8.610 M.Ton RBD Palm Oil was established through cogent evidence including documentary evidence. The case of respondent was not only proved through evidence of the P.Ws. But the only witness examined by the appellants as D.W.1 has also admitted the quantum of short landing i,e, 8.610 M.Ton RBD Palm Oil. In spite of the above material available on record, the learned IIIrd Senior Civil Judge, Karachi-West, in his judgment concluded as under:-- "Plaintiff has failed to establish his case against the defendant as evidence brought on record by the plaintiff is incomplete and insufficient and could not stand on its own legs. It was held in 1999'
YLR 1188 Karachi that "Suit for recovery of damages, Breach of contract, plaintiff in order to establish such breach, was required to clearly establish the terms agreed between the parties. Where such terms were not available on record, it was not possible to record any finding about any breach of agreement committed for claiming damages, onus to prove loss lay upon' the plaintiff who could not succeed without producing evidence in positive terms Suit was dismissed in circumstances." It was also held in PLD 1962 (W.P.) Kar. 227 that "Burden lies on plaintiff to prove loss" it is al'o held in PLD 1996 SC 737 that "person claiming any damage has to prove same through evidence". Plaintiff in his case has failed to discharge his burden to establish or bring on record the terms settled between the parties and to establish shortage or any loss allegedly suffered by them nor has been able to produce material sufficient to establish that the liability of the defendants to pay any damages."
13. Now taking-up the judgment passed by the learned Appellate Court it is noticed that entire evidence on record has been appreciated in its proper perspective. The evidence of the parties has been discussed in detailed. Independent judicial mind has been applied to the material present before the learned Appellate Court and learned Appellate Court recorded its findings as per law and has concluded as under:-- "The bare reading of above provisions of law clearly indicates that once the carrier loads consignments on board the vessel and issues in Bill of lading, which is not claused in any way, then he is deemed to have certified that the goods that he has received are as described in the bill of lading and he undertakes to take care of the goods and also discharge the same at the port of discharge. This Bill of Lading, therefore, is a prima facie evidence of the goods as described in the bill of lading. In other words an estoppel is set up against the carrier. This is of course a rebuttable presumption inasmuch as it is for the carrier to show that the goods were in fact not as described in the Bill of Lading. If carrier is not able to rebut the presumption and if he is not able to deliver the consignments as described in the bill of lading he is liable for any shortage for any damage to the cargoes. This principle equally applies to dry cargo as well as oil cargo and no distinction can be drawn between the liability of a carrier for one cargo or the other.
' It is admitted by the defendant/respondent's witness that short landing occurred and the liability is upon carriers, therefore, I am of the opinion that the appellant/plaintiff has established short landing of suit consignment. Hence I answer this issue as IG affirmative."
14. The argument of learned counsel for the appellants that judgment and decree passed by IIIrd Senior Civil Judge, Karachi-West, in suit No,251 of 2000 was strictly in accordance with law and the evidence available on record is not supported from the material on record. From the perusal of above quoted extract from the judgment of learned trial Court it would be seen that same does not take care of the evidence available before the learned Judge, hence the contention of learned counsel for the appellants fails. Similarly, the argument of learned counsel for the appellants that findings recorded by the learned Appellate Court are based on no evidence also oppose to record for the reasons stated hereinabove. As stated that learned Appellate Court has applied his independent mind to the record and has reached to a just conclusion which does not call for any interference in Second Appeal under section 100, C.P.C. The learned counsel for appellants is not right in contending that learned Appellate Court exceeded his jurisdiction while setting aside the judgment and decree passed by the learned trial Court. As held above, the findings recorded by the learned Original Court were contrary to record and were based on misreading of evidence and non-considering the material available on record, hence the same was rightly disturbed by the learned Appellate Court. The judgments cited by the learned counsel for appellants are distinguishable on facts as the point involved in the present case has not been dealt with in the judgment cited by the learned counsel for appellants, hence of no consequences.
15. With regard to the contentions of learned counsel for the respondent as held in the anove paras that the findings recorded by the learned Original Court were not based on correct appreciation of evidence but the same were based on ignorance of material evidence available before it, hence need no further debate on the issue in view of my findings noted above. The learned counsel for respondent has also attacked the jurisdiction of this Court under section 100, C.P.C. Learned counsel for the respondent has submitted that High Court while hearing second Appeal under section 100 C.P.C. Normally not to interfere on the findings of facts recorded by the Courts below unless there is error apparent on the record. He has also submitted that reappraisal of the evidence in second appeal is not permissible. Since in the present case leaned Original Court has overlooked the material evidence and has reached to a wrong conclusion and such error was corrected by the learned Appellate Court which cannot be disturbed in second appeal. Learned counsel for the respondent has further submitted that if there is conflict of judgment between trial Court and Appellate Court and the view expressed by the Appellate Court is more in line with the evidence on record ordinarily appellate judgment is to be preferred unless the same was contrary to evidence on record. As held above, the learned Appellate Court has recorded the findings strictly in accordance with the evidence available on record hence judgment and decree passed by the learned Appellate Court does not call for interference by this Court. Accordingly, the appeal fails, which is dismissed with no order as to costs.