Brief facts of the case are that respondent filed a suit for recovery of Rs. 28,78,8 60/- on 04.09.2004 against the petitioner alleging therein that in order to onward shipment of a consignment, handed over by the petitioner related to Airway Bill No. 172-23854261 containing 634 cartons, weighing 12680 kg worth US$53200/-, the respondent incurred freight and other expenses to the tune of Rs. 28,78,860/- through a cheque drawn on PICIC Commercial Bank Ltd, Uggoke Road, Shahabpura Branch, Sialkot; that the respondent was approached to reimburse the said amount, however , he refused to do so. Suit was contested by the petitioner by way of filing written statement. Out of the divergent, pleadings of the following issues were framed.
ISSUES
1. Whether the plaintiff has no cause of action to file the present suit? OPD
2. Whether the alleged resolution is not according to company Ordinance which is bogus, hence plaintiff Muhammad Nauman has no power to file the, present suit? OPD
3. Whether the suit of the plaintiff is liable to be dismissed due to non joinder of necessary parties? OPD
4. Whether the suit of the plaintiff is liable to be rejected under Order VII Rule 1 1 of the CPC? OPD
5. Whether the suit of the plaintiff is time barred? OPD
6. Whether the plaintiff has filed the present suit just to harass the defendant, hence defendant is entitled special costs under Section 35-A of CPC? OPD
7. Whether the plaintiff is entitled to the decree for recovery of Rs. 28,78,860/-? OPP 7-A. Whether the defendants are entitled for recovery of one Crore as set off as their claim in Para No. 5 of the written statement? OPD
8. Relief.
Thereafter , evidence led by the parties was recorded. Learned trial Court after hearing both the parties, decreed the suit of the respondent vide judgment and decree dated 15.06.2012. Feeling dissatisfied, petitioner preferred an appeal before learned lower appellate Court which met with the same fate vide judgment and decree dated 21.04.2018. Hence, this revision petition has been filed.
2. Learned counsel for the petitioners reiterated the grounds raised in this revision petition while contending that impugned judgments and decrees passed by learned Courts below are the result of misreading and non-reading of evidence; that the suit was not filed by duly authorized person whereas, Ex.P-1, the authorization, has no legal value as is not filed in consonance with law; that the impugned judgments are not based with application of judicial mind; that the impugned judgments and decrees are against the law and facts of the case, therefore, same are liable to be set aside. He has placed his reliance upon cases reported as "Cress LPG (Pvt) Ltd. through authorized representative v. M.T. Maria III through Master/Chief Engineer/Chief Officer and others" (2018 CLD 972), "Mubarik Ali through LRs. v. Amroo Khan thorugh L.Rs. " (2007 SCMR 1714 ), "Abdul Sattdr v.
Mst. Anar Bibi and others " (PLD 2007 Supreme Court 609), "Province of Punjab through Collector , Faisalabad and another v. Rana Hakim Ali and another " (2003 MLD 67), "State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal" (2011 SCMR 1013 ), "Messrs India, Coffee and Ten Distributing Co., Ltd v. The State of Madras, represented by the Collector of Madras " (A.I.R 1954 Madras 1030) and "Commissioner Income Tax and Wealth Tax, Gufranwala Zone, Gufranwala and others v. Messrs Asif Industries, Alipur Chatta, W azirabad and others " (2005 PTD 1 145).
3. Process for service of respondents was issued but none has entered appearance on their behalf, even after proclamation in the newspaper , therefore, they were proceeded against exparte vide order dated 14.12.2018.
4. After hearing the arguments and perusal of the record, the point for consideration before this. Court is as to whether the respondent had the cause of action to file the suit and was entitled to the decree as prayed for .
5. Before dilating upon the merits of the case, certain terms, which will come under discussion, as those regulate the transactions between the parties and have been defined under the Air Cargo Tariff Manual (applicable in the terms in question), are reproduced as under: Airway Bill (A WE)
"Means the document made out by or on behalf of the shipper which evidences the contract between the shipper and carrier(s) for carriage of goods over routes of the carrier(s)."
Master Air W aybill "Means an Air W aybill covering a consolidated consignment showing the consolidator as shipper ."
House Air W aybill (HA WB)
"Means the document which covers each individual shipment of a consolidation. It is issued by the consolidator and contains instructions to the break bulk agent."
Consignee "The person whose name appears on the AWB as the party to whom the goods are to be delivered by the carrier ."
Charges Collect (Freight Collect)
"The charges entered on the AWB for Collection from the Consignee."
Consignment. Consolidated "A consignment of multi packages which has been originated by more than one person each of whom has made an agreement for carriage by air with another person other than a scheduled air carrier . Conditions pertaining thereto, applied to that agreement, may or may not be the same as the conditions pertaining thereto, applied by the scheduled, air carrier for the same carriage."
Consolidation "See Consignment, Consolidated."
Further term "Free on Board" (FOB)" has been defined in the International Commercial Terms known as INCOTERMS published by International Chamber of Commerce (ICC) as under: "The Seller delivers the goods on board the ship and clears the goods for export. From that point, the Buyer bears all costs and risks of loss or damage."
6. Admittedly , the respondent's company is a cargo agent with whom the petitioner entered into an agreement for dispatch of goods and a letter of instruct ions was written (produced in the evidence as Exh.P5). The respondent booked the consignment relating to Airway Bill No. 172-23854261 dated 08.06.2002 containing 634 cartons, weighing 12680 kg having US$ 53200/-. The freight and other expenses incurred thereon were statedly amounting to Rs. 2878860/-. According to the respondent, the above said amount was paid to air carrier for the transportation of consignment in question. The respon dent claimed the reimbursement of said amount through a letter dated 26.03.2003 (Ex.P-4) and a final letter dated 24.06.2004 (Ex.P-3). The petitioner controverted the contents of the plaint by filing a written statement and specifically raised the plea that as per airway bill (AWB) and letter of instructions, all the expenditures were the liability of the Consignee under the rule of free on board (FOB). It was further stated in the written statement that the respondent was cargo agent of the PEPSI-COLA MEXICANA, S.A.
D.E. A.V, VASCO, De Quiroga, No. 300 PISO 4 Col. Lomas Santa FE, 01210 Mexico D.F. R.F.0 PMC-8702010- EC8 (hereinafter referred to as "the Consignee") and therefore, the payment of freight was a matter between the Consignee and the cargo agent and the petitioner being the shipper had nothing to do with any payment made by the cargo agent. It is further asserted that the respondent/cargo agent on its own, without any instructions from the petitioner , changed the name of Consignee and the goods were not delivered to the Consignee of the petitioner which caused damages to the petitioner company .
7. After framing of issues the evidence of the parties was recorded, The PW-1 Mohammad Nouman Yahya, reiterated the contents of the plaint and produced Ex.P-1 Board Resolution, Ex.P-2 Master Airway Bill dated 12.06.2002, Ex.P-3 final notice dated 24.06.2004 Ex.P-4 letter dated 06.03.2003 and also produced documents as Mark 'A' to Mark-D. In cross-examination he stated that Ex.P-2 is the original airway bill, whereas, Ex.P-6 is house airway bill. He stated that in Ex.P-2 shipper is Pakistan Cargo Service. He explaine d the reason that when freight is to be charged from the Consignee, then in master (airway bill) the name of the receiver of money is mentioned, whereas, in house (airway bill) the name of sender is written. He admitted that the shipment was made under the principle of FOB. He denied the suggestion that under FOB the payment is to be made by the person who purchases the goods (the Consignee). He volunteered that under FOB the shipment is then forwarded when shipper undertakes to pay freight if the goods are not collected by the Consignee. The stance of the respondent becomes crystal clear that the cargo agent can only claim the freight from the shipp er when the consignment goods are not received by the Consignee.
8. As per statement of PW-1, Ex.P-2 is master air freight bill showing the name of Pakistan Cargo Services (Pvt)
Ltd. (respondent) as the shipper but perusal of Ex.P-2 clearly reflects that it is airway bill and not master airway bill and the petitioner company is not the shipper . In this document, the name of Consignee is RR. Shipping and Chartering S.A. DE.C.V . MEXICO. The Ex.P-4 which is letter dated 06.03.2003 suggests that the shipment was confiscated by the local authorities and further that under Rule 2.8 IATA Rules and Regulations, the shipper is liable for all charges and expenses relating from or in the connection with the failure to take the delivery of the shipment by Consignee. But there is no evidence on record which could establish that the consignee did not receive the consignment on its own and the consignment was confiscated on any fault of the consignee.
9. When this Ex.P-4 is read in juxta position with cross-examination conducted upon PW-4 it becomes crystal clear that the shipment was not delivered to the Consignee i.e. PEPSI COLA, Mexicana. It is noticed that PW-1 made inconsistent statement in order to prove his case but instead of proving he damage d the entire case. He stated that the name of shipper and Consignee had not been changed, whereas, name of shipper on Ex.P-2 is Pakistan Cargo Services Ltd. and in Ex.P-5 name of shipper is Ihsan Sports and Consignee is PEPSI COLA, Mexicana.
Furthermore, Ex.P-6 airway bill is dated 08.06.2002, wherein, MAWB number has been mentioned as 172-2385- 4261 and it is astonishing that when this Ex.P-2 is dated 12.06.2002 then how that number could be mentioned in Ex.P-6 which is dated 08.06.2002 execut ed earlier than Ex.P-2. In rebuttal DW-1 Muhammad Shahbaz stated on oath that Pakistan Cargo did not take any permission from the petitioner for sending the shipment to any other than the Consignee/PEPSI COLA Mexicana. This statement was not cross-examined by the respondent and no suggestion was put that the consignment was delivered to the Consignee who did not pay the freight or that the consignment was confiscated by the authorities due to any act of the Consignee. It has never been the case of the , respondent that consignment was delivered but the Consignee refused to pay the charges/freight. In this regard, the clause-III of shipper letter of instructions for dispatch is relevant which is reproduced as under: "(iii) Undertakes and d binds themselves legally to pay Air Freight Amount mentioned in Airway Bill under which consignment is booked WHEN the AWB of the consignment is executed by Pakistan Cargo Services (Pvt.) Ltd. and pay all charges at once on intimation, incurred on the transportation of consignment if it is on chares collect basis and the consignee refuses to make payment at destination. We shall make this payment irrespective of any other dispute with PAKIST AN CARGO SERVICES (PVT) L TD or the carrier concerned ."
(Emphasis provided)
10. In view of the above discussion, I am of the considered opinion that the consignment was not sent to the Consignee at the proper address nor there is an iota of evidence that the Consignee did not receive the consignment willingly and refused to pay the charges. The respondent miserably failed to establish through any evidence that he had any cause of action against the petitioner . Further , the findings of the learned Courts below on Issue No. 7 which is core issue are result of misreading and non-reading of evidence as well as a result of ignorance of law. Both the learned Courts below failed to appreciate the term 'FOB' and distinction between the terms `AWB', HAWB' and `MAWB', which resulted into miscarriage of justice. There is no cavil to the proposition that normally this Court does not interfere in the concurrent findings of fact recorded by two Courts below but when there is gross misreading and non-reading of evidence and patent violation of law, floating on the surface of such concurrent findings, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings. Reliance can be placed upon the judgments reported as "Nazim ud Din and others v. Shaikh Zia ul Qamar and others" (2016 SCMR 24) and "Ghulam Muhammad and 3 others v.
Ghulam Ali" (2004 SCMR 1001 ).
11. Keeping in view of what has been discussed above, I feel no hesitation to observe that both the Courts below badly failed to analyze the facts and law on the subject and committed grave irregu larity and illegality while passing the impugned judgments and decrees, which cannot be sustained in the eye of law. Both the Courts below have erroneously decreed the suit filed by the plaintif f while being contrary to law and to usage having the force of law cannot be sustained and same are liable to be interfered with by this Court. Consequently , this revision petition is allowed , impugned judgments and decrees passed by learned Courts below are hereby set aside and suit filed by the plaintif f is hereby dismissed . No order as to cost.