NASIR SAEED SHEIKH, J. --- This R.F.A. Is directed against the judgment and 30.7.2001, passed by the learned Civil Judge 1st Class, Faisalabad, whereby the suit instituted by the appellants for the recovery of damages against the respondents was dismissed.
2. Briefly stating the facts of the case are that the appellants Nos. 1 to 6 purchased tickets from the respondent No. 1 for their onward travel to England. They were to complete their travel in England before 26.2.1993. The tickets which were purchased by the appellants from Faisalabad to. England were confirmed on 22.2.1993. When the appellant's reached Karachi Airport from Faisalabad after completing one leg of their travelling from Faisalabad to Karachi, the respondents did not allow them to board the plane on 26.2.1993. The reason forwarded' by the respondents and its staff was that the England visa, which the appellants were holding was to expire on 26.2.1993 according to the local time of England 13.35 p.m., and that sufficient time was not available to the appellants to travel from Pakistan to England before expiry of the said visa duration. The denial by the respondents to the appellants, the opportunity to travel from Karachi to England against their confirmed air tickets, was the main grievance of the appellants, therefore, they instituted civil suit for the recovery of damages of Rs. 50,00,000/- (Rupees fifty lac only) as detailed in paragraph-12 of the plaint.
3. The suit was contested by the respondents through their written-statement and the learned Civil Judge framed the following issues:--- ISSUES: (1) Whether the plaintiffs are entitled to recovery of Rs. 50,00,000/- as stated in the plaint?
OPP
(2) Whether this Court lacks jurisdiction to try the suit? OPD
(3) Whether the suit is bad for mis-joinder of parties? OPD
(4) Whether the suit is bad for mis-joinder of causes of action? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is bad for non-joinder of necessary party? OPD
(7) Whether the defendants Nos. 1 and 2 are entitled to recover special costs under Section 35-A of C.P.C.? If so to what extent? OPD.
(8) Relief.
4. The parties produced their respective evidence. The crucial issue in this case is Issue No. 1 and the learned Civil Judge dismissed the suit of the appellants through the judgment and decree dated 30.7.2001 after recording finding mainly on the above issue.
5. This R.F.A. Is directed against the judgment and decree dated 30.7.2001, passed by the learned Civil Judge, 1st Class, Faisalabad.
6. It is contended by the learned counsel for the appellants that the reason prevailing with the learned Civil Judge for dismissing the suit of the appellants was that the appellants did not produce any document or any independent evidence before the learned Civil Judge to prove that the plaintiffs/appellants had sufficient time to reach on 26.2.1993 in England before the expiry of their visas. The learned counsel submitted that after issuing the confirmed tickets in favour of the appellants, the appellants were carried from Faisalabad to Karachi and later from Karachi to England, they were to commence their travelling through the. P.I.A. And sufficient time was available to them to reach England before expiry of their visas. The learned counsel drew the attention towards the statement- got recorded by the witness of the defendants itself, who appeared as DW.1 Muhammad Ayub Butt, Deputy Manager Passenger Service P.I.A. And in his cross-examination at pages Nos. 169 and 170 of the paper book, the said witness admitted the following facts:--- {{URDU TEXT}} The learned counsel for the appellants contended that this portion of the statement of the DW.1 has been completely overlooked by the learned Civil Judge. The learned counsel further argued that the other reason prevailing with the learned Civil Judge .For the dismissal of the suit of the appellants was that the appellant No. 1 did not personally appear in her evidence. The learned counsel for the appellants contended that the appellants Nos. 2 to 5 were minors and the appellant No. 6-Abdul Hameed Chaudhry was their next friend and the suit was instituted through the said appellant No. 6 by the appellants Nos. 2 to 5. It is ,further contended that the appellant No. 6-Abdul Hameed Chaudhry appeared as PW.1 and fully established the case as built up in the plaint and he was supported by the statement of other witness PW.2 Saeed Ahmad, who is also one of the plaintiffs/appellants. The learned counsel contended that it is the intrinsic value of the evidence which was to be assessed by the learned Civil Judge and not the number of witnesses to be produced. The contention precisely raised by the learned counsel for the appellants is that the case as built up in the plaint has been fully established by the evidence of PW.1 and PW.2 coupled with the fact that the respondents' own witness DW.1 admitted this facts noted above and there was no justification with the learned Civil Judge to have dismissed the suit of the appellants.
7. The learned counsel for the ,respondents has controverted the arguments of the learned counsel for the appellants by arguing that according to the Rules of IATA, the passengers have to commence their travelling at least twenty-four hours before the expiry of their visas, which the passengers claim to be holding in their favour. The learned counsel submitted that the visas of the appellants were to expire before their arrival in England, therefore, the respondents were justified in refusing boarding of the appellants to the plane. The learned counsel thus contended that the suit has been dismissed rightly by the learned Civil Judge. It is also, contended that the appellant Na 1 did not appear in support of her case and the learned Civil Judge rightly held that non- appearance of the appellant No. 1 in her evidence has materially affected her case.
8. We have considered the arguments of the learned counsel for the parties and have perused the record. 9.
The learned Civil Judge has dismissed the suit of the appellants primarily on the grounds that the, appellants were unable to produce any documentary or oral evidence to the effect that their journey to England was to complete before expiry of their visa durations. The statement of Muhammad Ayub Butt, Deputy Manager Passenger Service P.I.A. Of the respondents airliners is very important in this context wherein he admitted that flight, which the appellants were to board was to reach in England at 1:30 p.m., and there were ten hours more left in the expiry of visa durations of the appellants on their arrival in London. This admission on behalf of the respondents has been completely overlooked by the learned Civil Judge and he dismissed the suit without discussing this portion of the evidence of DW1. The next reasoning of the learned Civil Judge that merely because the appellant No. 1 did not appear in her evidence to make a statement is not a sound and valid reason for the learned Civil Judge to have dismissed the suit. Two of the plaintiffs have appeared in the evidence and they have fully supported their case as built up in the plaint. The evidence produced by the appellants has been further strengthened by the statement made by DW.1 so there was no factual or legal justification for the respondents to have refused boarding to the appellants.
10. The learned counsel for the respondents could not point out any statutory provision even by making reference to IATA Rules justifying the refusal of boarding to the appellants. However, since the witness DW.1 as produced by the respondents has himself admitted that the flight through which the appellants were to travel must have reached ten hours before expiry of the visa periods of the appellants. There was no justification for the respondent to have refused boarding to the appellants in the flight for which they were issued confirmed tickets by the respondents.
11. In view of the above, we are convinced that the learned Civil Judge has not legally passed the impugned judgment and decree of dismissing the suit of the appellants and the reasons, which have been forwarded by the learned Civil Judge in the impugned judgment and decree for dismissing the suit of the appellants are not sustainable. The impugned judgment and decree dated 30.7.2001 therefore is set aside.
12. However as the learned Civil Judge has to undertake the exercise of deciding the merits of the claim of the appellants keeping in view the evidence produced before him. Therefore, the matter is remitted back to the learned Civil Judge to decide the question of the entitlement of the appellants to the damages as claimed by them on the basis of evidence which has been produced before the learned Civil Judge and also keeping in view the provisions of Carriage by Air Act, 1934. No further evidence will be allowed to be produced to the parties. The learned Civil Judge shall hear the arguments on the basis of material already available on the file and shall decide Issue No. 1 as soon as possible within a period of FOUR MONTHS. The parties shall appear before the learned Senior- Civil Judge, Faisalabad on 22.7.2010 without any further notice. The R.F.A. Stands disposed of with no orders as to costs. .