The present admiralty suit has been filed in this Court on 7-8-1980 by the plaintiff against the Vessel s. s. "NBDON" for the recovery of Rs.2,45,75,481.30 as damages. Briefly the facts alleged by the plaintiff are that plaintiff's Vessel m. v. "BANGLAR BAANI" commenced unloading its cargo on 25-7- 1980 while berthed at Berth No. 2, East Wharf, Karachi. The defendant vessel came alongside plaintiff's vessel on 26-7-1980 and remained there. Plaintiffs case is that on 1-8-1980 sparks from the funnel of the defendant vessel erupted and blew towards the plaintiff's vessel and caused a fire in its cargo resulting in extensive damage to the cargo as well as the ship. Hence the present suit claiming damages for loss to the cargo and the ship on the account of wrongful act and negligence of the defendant.
2. Messrs Ruta Azul Maratime Inc. Of Panama, claiming of the owners of the defendant have filed a written statement in this suit on 15-11-1980. The present application C. M. A. 3232/80, has been filed by the plaintiff' under Order VIII, rule 1 read with section 151, C. P. C. Praying that the written statement filed by Messrs Ruta Azul Maritime Inc. May not be accepted on record unless an application is made by them for joining them in the suit as defendant and the question of ownership of the defendant vessel is decided. The facts and grounds on which the plaintiff has based their case in the application are mentioned in paragraphs 2 to 5 thereof and the same are reproduced here `Paragraph 2.-That Messrs Ruta Azul Maritima Inc. Were never impleaded in the suit as defendant and this fact is evident from the plaint itself.
Paragraph 3.-That without making an application for joining them in the suit as defendant or seeking permission of the Court to defend the suit on behalf of the defendant, Messrs Ruta Azul Maritime Inc. Can not describe themselves as defendant and file the written Statement.
Paragraph 4.-That the plaintiff has already denied the fact in its counter affidavit that Messrs Ruta Azul Maritime Inc. Are the owners and to that counter-affidavit no Rejoinder was filed. From the various affidavits counter-affidavits. Re-joinders, etc., it is evident chat the defendant vessel is owned by Nedon Navigation Company Ltd. Who it appears have abandoned the defendant vessel.
Paragraph 5.--That the plaintiff has already filed an application for the cross-examination of the master of the defendant vessel that the Master may be allowed to be cross-examined by the plaintiff."
An affidavit in support of the application has been filed contents whereof are a repetition and confirmation of the contents of application.
3. Mr. M. H. Kazmi, learned counsel for the plaintiff strenuously contended that Messrs Ruta Azul Maritime Inc. Are not the owners of the defendant vessel and are more or less strangers and in the circumstances have no locus stands to represent the defendant vessel, file any written statement or defend the suit. According to learned counsel, after service of summons and warrants of arrest were duly affected, Master of the vessel appeared and filed his counter-affidavit challenging the orders of arrest. This counter-- affidavit was filed in Court on 9-8-1980 and great reliance has been placed by learned counsel on Annexures D-1, D-2 and D-3 to this counter-affidavit dated 9-8-1980.
All these three documents, which are signed by the Master of the vessel, Captain Nicolas A.
Zografos, bear the rubber stamp of "Nedoa" Navigation Company Ltd., Famagusta,' underneath the signatures of the Master. Annexures D-1 is dated 1-8-1980 and D-2 and D-3 are of 5-8-1980. The precise argument of Mr. M. H. Kazmi was that the use of the rubber stamp of Nedon Navigation Company Ltd., by the Master of the vessel on these documents can point to only one conclusion and that is that at least till 9-8-1980, when the said counter-affidavit was filed by the Master placing reliance on these documents, the vessel belonged to Nedon Navigation Company Ltd., and Messrs Rutt Azul Maritime Inc. Could not possibly be the owners of the vessel.
4. In their written statement Messrs Ruta Azul Maritime Inc. Have taken the stand that they are owners of the vessel having purchased the same on 18-7-1980 from Nedon Navigation Company Ltd. The previous owners and that its name was changed from "NEDON" to "ALMAM". Document D-1 to the written statement is the bill of sale dated 18-7-1980 showing the sale of the vessel "NEDON" to Messrs Ruta Azul Maritime Inc. The Bill of sale is executed on behalf of Nedon Navigation Company Limited and bears the rubber stamp of this Company.
5. The other document, Annexure D-2 to the written statement, is a copy of the registration certificate issued by a Department of the Republic of Panama. The registration certificate is dated 24-7-1980, and it shows the previous name of the vessel as "NEDON" and the new name as "ALMAM", and gives the name of the owner as Ruta Azul Maritime Inc. Panama if these two documents are taken to be genuine and correct, the Company which has filed the written-statement is then the owner of the vessel in question with effect from 18-7-1980.
6. However, according to Mr. M. H. Kazmi, learned counsel for the plaintiff, these documents are doubtful documents, as the Master of the vessel, when he had appeared in this Court as late as 9- 8-1980 and filed his counter-affidavit, did not disclose that Ruta Azul Maritime Inc. Bad become the new owners of the vessel and the annexures to his counter-affidavit are stamped with the stamp of Nedon Navigation Company Ltd. The contention, of learned counsel is that this would show that as late as 9-8-1980, Nedon Navigation Company Ltd., is the owner of he vessel and Ruta Azul Maritime Inc. Could not possibly be the owner of the vessel on a date prior to 9-8-1980 and, therefore, the documents filed alongwith the written statement are doubtful documents and cannot be relied upon. His further contention was that these two documents, namely the bill of sale and the registration certificate are foreign documents and unless these as proved in the manner provided by our law they cannot be admitted. Evidence.
7. On a question from the Court, Mr. M. H. Kazmi stated that a suit filed under the Admiralty jurisdiction of this Court for the arrest of a ship, can be defended and written statement filed either by Master of the vessel or by the owner of the vessel. On a further question from the Court, learned counsel accepted the proposition that even if the sale of the vessel in such admiralty suit takes place during the pendency of the suit, the new owner would be entitled to defend the suit.
8. By the present application C. M. A. 3232/80, the plaintiff wants that the written statement filed in the suit should be rejected and should not be kept on record. In my view the question of genuineness of the two documents, bill of sale and the registration certificate, and their admissibility in evidence being foreign documents, would be one of the issues at the regular hearing. Suffice it to say that this is not a case where a defendant has come without any document showing its ownership of the vessel. It has filed and relied upon two documents, bill of sale and the registration certificate, and in case these documents are not accepted or admitted by the plaintiff it would be the burden of the defendants to prove these documents in accordance with the law of evidence applicable in Pakistan or through other evidence establish that they are the owners of the vessel having purchased the same from the previous owner, Nedon Navi_ation Company Ltd.
There are no doubt three documents filed by the Master of the Vessel on which he has put a stamp of Nedon Shipping Company Ltd. Underneath his signatures but this would not for all intents and purposes make an open and shut case that Ruta Azul Maritime Inc. Could not possibly be the owners of the vessel on 9-8-1980 or thereafter. There could be possible explanations for such stamps. I may give some hypothetically possible explanations. For instance the vessel having sailed from Cyprus or some other country at a time when Nedon Shipping Company Ltd. Were the owners of the ship with rubber stamps of that Company in possession of the Master on board the vessel, and after the sale of the vessel in favour of Ruta Azul Maritime Inc. There may not have been a contract between the Master and the owner, and the Master may be continuing to use the rubber stamp of Nedon Shipping Company Ltd. In the circumstances. Another situation can be contemplated and that is that the Master having no other rubber stamp, may have gone on using the rubber stamp of the Nedon Company Ltd. A third possible situation that could be contemplated is that the Master knowing that the vessel had been sold to another Company may still for mala fide or for some other reason bent on using the rubber stamp of Nedon Shipping Company Ltd.
9. In my view it would not be a proper exercise of jurisdiction by this Court, at this stage of the proceedings when evidence is still to be recorded, to come to a final decision or conclusion that the two documents, namely, bill of sale and the registration certificate are bogus and false documents. I may only state that by reason of these documents it is possible to say at this stage that the defendants, who have filed the written statement, have an arguable case to go for trial on the point that they are the owners of the vessel having purchased the same from Nedon Shipping Company Ltd. It is also significant to -note that Nedon Navigation Company Ltd. Have not come forward to defend the suit or file any written statement.
10. The other point raised by learned counsel for the plaintiff was that the written statement is not in proper form inasmuch as Ruta Azul Maritime Inc. Have shown themselves as defendants whereas in the plaint the vessel "NEDON" is shown as the defendant. The complaint of counsel for the plaintiff is that by filing written statement the company which has filed such a written statement is attempting to amend the plaint. According to Mr. Kazmi the suit that he has filed is a suit in rem and if the written statement remains on record in its present from the suit will, just by the factum of the present written statement stand converted into a suit in personam.
11. I do not find any merit in these contentions. Learned counsel for the plaintiff, as observed earlier, has admitted that the owner of a vessel, against whom an admiralty suit has been filed, is entitled to defend such suit. This Company is claiming to be the owner of vessel, and although it has been challenged by the plaintiff that the documents relied upon by this Company are not genuine, I am of the opinion, as I have observed earlier. That at this stage the two documents relied upon by the defendants are sufficient to make out an arguable case in favour of the defendant to entitle to defend the suit. If at the trial, after evidence has been led, it is found that this Company is not the owner of the vessel, necessary consequences will follow. Having decided that this Company has the right to defend the suit, the objection that the written statement is not in proper form, in as much as the Company should rile the written statement in the Name of the-- vessel, loses force. If this Company is entitled to defend this suit, the fact whether it files the written statement in its own name or in the name of the vessel is in law of no consequence. I may clarify here that the form in which the written statement has been filed would not, on account of this fact alone, defeat the contention of the plaintiff that the suit filed by them is a suit in rein. The filing of a written statement in a certain form would not change or alter the nature of the suit. The suit stands on its own feet and will be considered on its own merit under the law, and its legal position or status cannot be affected, prejudiced or mutilated just because of the form of the written statement that is filed.
12. I am, therefore, of the opinion that there is no merit in this application, which is accordingly dismissed. I may make it clear that the question of ownership of the vessel arises out of the pleadings of the parties and the plaintiff will be entitled to get an issue framed on this point at the time the Court frames issues in this suit.