1. ZAFFAR HUSSAIN MIRZA, J.-This is an appeal by leave of this Court, arising from the judgment and order of a Division Bench of the erstwhile High Court of Sind and Baluchistan, Karachi, dated 8-12- 1970, accepting the appeal filed by respondent No.1 (Messrs Pakistan Industries Limited), whereby the suit of the present appellants was dismissed with costs.
2. Leave was granted on the contentions advanced on behalf of the appellants to consider the following points;
(i) that the Letters Patent Beach had erred in holding that the appellants had not made any allegation against respondent No. 1 that they had not shipped the whole quantity of goods to the appellants ;
(ii) that since allegation of negligence and misconduct had been made by the appellants against respondent No. 1, the Court ought to have upheld the judgment of the learned Single Judge on the question of short delivery ;
(iii) that the Court had erred in placing reliance on Exh. 32/1 and ignoring the short landing certificates, Exhs. 21, 22 and 23, which proved beyond doubt that 338 bundles were short landed ; and
(iv) that the Court could grant relief to the appellants, notwithstanding the fact that no appeal was filed by them against respondents Nos. 2 to 4, in exercise of its powers under Order XLI, rule 33, C. P.
3. C.
4. The facts forming the background of this appeal briefly stated are, that respondent No. 1 undertook to ship from Karachi to Chittagong 1.923 bundles of M. S. Bars of different sizes, weighing in all 168 tons. The consignment was shipped to Chittagong, but since the consignees (the appellants) were doing business at Dacca, the consignment was reshipped from Chittagong to Dacca by train by the consignees. The goods were packed by the consigner (respondent No. 1) and the bundles were certified to be of the weight and description above-mentioned, vide certificate of inspection Exh.
5. 32/1. They were then delivered for shipment to the Steamship Company vide its mate receipts Exhs.
6. 28, 29 and 30. Three bills of lading were then duly prepared which are Exhs. 2, 2-A and 2-B. The shipment was made by S. S Marine B in December, 1956. The ship arrived at Chittagong Port on 28- 12-1956 and completed unloading on 16-1-1957, vide Discharge Report, Exh. 24, dated 23-1-1957. The Import General Manifest has not been produced in evidence but the Export General Manifest is Exh.
7. 1.
8. After the goods were discharged at jetty in Chittagong, as already stated, they were trans-shipped under an arrangement made by the consignees/ appellants themselves by train to Dacca arriving at destination on 14-2-1957. From the Railway Station at Dacca, they were further trans-shipped to the godown of the consignees. It was at this point, i.e. At the godown of the con--signees that the appellants found the alleged short delivery of the goods. According to the appellants only 1585 bundles were delivered and they were short by 39 tons. Thus 338 bundles weighing 32 tons were not received at all. On discovering this shortage, the appellants filed two suits, one at Dacca and the other at Chittagong. Nothing is known as to what happened to the suit filed at Dacca in which the consignor was not impleaded as a party. The other suit, which was filed at Chittagong against the Insurance Company, the Steam--ship Company, the respondent No. 1 herein i.e. Pakistan Industries Limited, and the Islamic Republic of Pakistan, was returned by the Court at Chittagong on 25-2-1959 for presentation before a Court of competent jurisdiction. The plaint in this suit was accordingly presented to the High Court of West Pakistan. Karachi Bench at Karachi, on 6-3-1959 and was registered as Suit No. 62 of 1959. The claim in the suit was for Rs. 68,500, with costs and pendente lite interest against defendants or any of them who will be found liable.
9. The defendants in the suit including the present appellants contested the suit and filed separate written statements in denial of the claim by the plaintiff. The learned Single Judge, who tried the suit on the original side of the High Court framed as many as 18 issues on the pleadings of the parties. But the most important issue was Issue No. 12, which relates to the question whether the present appellants shipped the contracted quantity of goods comprising 1923 bundles and if so what was their weight. The parties led oral evidence and produced a number of documents. The important documents, which have a material bearing on the case were the Inspection Certificate Exh. 32/1, the mate receipts Exhs. 28, 29 and 30, bills of lading Exhs. 2, 2-A and 2-B, the Export General Manifest Exh. 1, the report of discharge Exh. 24, the short landing certificate Exh. 21, the survey report Exh. 17, and the short landing tally sheets Exhs. 18, 19 and 20. The learned Single Judge observed in his judgment that the appellants aid not press the case against defendant No. 1 (The Insurance Company). On considering the evidence, the learned Single Judge held that the suit was barred by limitation against the Steamship Company (respondent No. 3 herein) and as to defendant No. 4, the Government of Pakistan, the learned counsel for the present appellants conceded before the learned trial Judge that "the evidence on the record has fully established that defendant No. 4 had delivered the same number of bundles in the condition in which they had received them to the plaintiffs and, therefore, were not liable". There--fore, the only remaining defendant in the suit was respondent No. 1 herein. The learned Single Judge, then after considering the evidence on record produced by the parties carne to the conclusion that there was no evidence to establish that respondent No. 1 had consigned the full quantity of the goods. This finding was based on the admitted po6ition that the three bills of lading only mentioned the number of bundles 'said to be' 1923 and the weight of the bundles was also described as 'said to be" 168 tons. Besides admittedly the bundles were neither counted at the time when they were put on board the ship nor were they weighed. The bundles were only counted and weighed by the General Superintendent in the godowns of the consignor but do loading tally sheets were produced in proof of the number of bundles put on board and their weight. Reliance was placed on the certificate issued by the Port Authorities for short delivery, vide Exhs. 21, 22 and 23. From the aforesaid evidence, the learned Judge came to the conclusion that only 1585 bundles were received by the. Appellants. For coming to the conclusion that 39 tons were short even from 1-185 bundles received by the appellants, the learned Single Judge relied upon survey report Exh. 17, which showed a shortage of tons 28-19-1 in weight, the value of which was shown to be Rs.
10. 23,794/3/5. In view of these findings, the learned Judge by his judgment, dated 23-9-1964, passed a decree for a sum of Rs. 61,794/3/5 with costs against respondent No. 1 only with interest at 6 % per annum up to the date of realisation. On a letters patent appeal filed by respondent No. 1, the learned Division Bench of the High Court by the impugned judgment, upset the findings of the learned Single Judge and dismissed the suit of the appellants. Hence the present appeal.
11. In support of the appeal, learned counsel sought to support the judgment of the learned Single Judge and contended that the consignor, respondent No. 1, had failed to establish by any evidence that he had shipped the entire stipulated quantity of goods comprising 1923 bundles weighing 168 tons. Strong reliance was placed in support of this submission on the bills of lading in which the number and weight of the bundles was qualified with the words `said to be' which, according to the counsel, clearly show that respondent No. 1 had not shipped the actual stipulated quantity and weight of the goods. He further argued that if the said respondent had produced in evidence the tally sheets, both in respect of number as well as weight of the bundles, that were prepared at the time of loading of the goods on the ship, the burden of proof may have been shifted to someone else to prove the fact in question. To reinforce his submissions he referred to the evidence produced by the appellants showing that 1585 bundles out of 1923 bundles were received by the appellants which points to the fact that the goods were short loaded. He also placed reliance on the short landing certificates issued by the Port of Chittagong Authorities.
12. Now the contention that the loading tally sheets not having been produced in evidence conclusively shows that the entire quantity of goods was not shipped, which seems to be the sheet-anchor of the argument advanced on behalf of the appellants, is based on an erroneous assumption that the loading tally sheets were prepared and could be made available for production in evidence. However, as pointed out in the Division Bench judgment, it was in the evidence of D. W. 2 Abdul Jabbar, the Tally Supervisor of the Steamship Company that the iron bundles were neither tallied nor was the weight of goods checked, because of a prevailing practice that M. S. Bars are neither weighed nor the number of bundles is counted. D. W. 5 Musa who was the Assistant Manager of respondent No. I has testified to the fact that he prepared the bills of lading and explained that these were prepared on the basis of the mate receipts. According to him also the qualification to the effect 'said to be' in the mate receipts and the bills of lading was added because of the aforesaid practice. From these facts, the learned Judges of the Division Bench rightly concluded that the quantity of goods of the con--signor cannot be said to be doubtful for that reason alone. In any case this fact renders wholly immaterial the question of non-production of loading tally sheets. It was also pointed out by Mr. Fakhruddin G. Ebrahim, learned counsel appearing for respondent No. 1 that the Export General Manifest contained entries which show the full quantity of the goods.
13. The short landing certificates (Exhs. 21, 22 and 23) are of not much assistance to the case of the appellants, inasmuch as they too contained the similar qualification by addition of the words 'said to be' short landed. This lends further support to the submission on behalf of respondent No. 1 that M. S. Bars are neither weighed nor their bundles are counted. It is legitimate to draw an inference from these documents that at the time of discharge the bundles were neither weighed nor counted. All that these certificates show, at the maximum, is that the goods discharged were not in accordance with the marks and packing indicated in the Export General Manifest. But what has been ignored by the learned counsel for the appellants, is the undisput--able evidence on record of the fact that a large quantity of goods was found in loose condition at the jetty which was not examined for purposes of identification. This further deprives the short landing certificates of their conclusive nature. In view of the fact that there was a quantity of goods in loose condition at the jetty, the survey report, which was prepared at the consignees' premises, has no material bearing on the question of the quantity of goods actually shipped. For all these reasons, we find no force in the contentions raised on behalf of the appellants.
14. Additionally, it was pointed out by Mr. Fakhruddin G. Ebrahim, learned counsel for respondent No. 1 that the contract in this case was a C & F contract and, therefore, the delivery of the goods, so far as respondent No 1 is concerned, was complete on handing over the shipping documents which were negotiated between the parties. These documents were retired and payment was made through the Bank. The appellants cannot, therefore, make a grievance against respondent No. 1. He also pointed out that there is no evidence that the goods were counted or weighed when they reached Chittagong. Also there is nothing in the evidence that when 1585 bundles were delivered to the agent of the appellant by whom they were weighed and who counted them. As against that the manifest of the ship stated entire quantity of bundles and there was no mention of loose iron bars therein. We have already dealt with this aspect of the case in the foregoing part of this judgment.
15. Mr. Ali Akbar, learned counsel for the appellants further submitted that if the Court had come to the conclusion that respondent No. 1 was not liable, his claim should have been decreed against the other defendants in his suit who were before the Court as respondents under Order XLI, rule 33, C. P.
16. C. In the first place as already pointed out, the appellants did not press their case against respondent No. 2, the Insurance Company, and respondent No. 4 Government of Pakistan. As regards the remaining respondent, i.e. Respondent No. 2 the Steamship Company, nothing has been pointed out in the evidence in support of the claim for liability on the said respondent. The learned Judges of the Division Bench in the High Court repelled the contention in the following words: ---- "We do agree with counsel that the power which is conferred by rule 33 is exercisable in suitable circumstances but it is exercised when the decree is indivisible or cannot be granted in several parts. But in this case, the question of the liability of the defendant was in each case, a separate question of that defendant's liability and the decision which has been given by the learned Single Judge in favour of the defendants .In this appeal we are required to examine the liability or otherwise of defendant No. 3 who is now the appellant. Our decision about the liability of the present appellant does not involve the examination of the liability or otherwise of the other defendants, therefore, there is no reason for going into the alleged liability of the other defendants and reopening the matter in spite of the fact that the plaintiff/respondent No. 1 itself has shown any interest in doing so. On the contrary there are observations of the learned Single Judge to the effect that counsel for the plaintiff did not press the case against defendants Nos. 1 and 4. In these circumstances we think that we must confine the examination of the ease to the questions raised by, the appeal.
17. Additionally we may' point' out that the power invoked on behalf of the appellants is a discretionary power conferred on the Appellate Court and the reasons assigned by the learned Judges declining to entertain the prayer of the appellants cannot be held to be an improper exercise of the discre-- tionary power.
18. No other point was urged in support of the appeal.
19. In the result, this appeal fails and is accordingly dismissed, with no order as to costs.