1. ' This order will dispose of Miscellaneous Application 1650/76 under Order XXXIX, rule 6, Civil Procedure Code made by the plaintiffs and Miscellaneous Application No, 1688/76 under Order VII, rule 11, Civil Procedure Code made by the defendants.
2. ' The facts relevant for the purposes of these applications may briefly be stated. The plaintiffs placed an order for supply of Wood-pulp with a supplier in Sweden. The goods, in 4,812 bales, were shipped from United States of America under an irrevocable Letter of Credit. The consignment was shipped per vessel Steplianos Veroottis. It is the consignment of the plaintiffs' that the goods were accepted on board, freight prepaid. The said vessel arrived in Karachi on or about 24th March, 1976 with the aforesaid consignment. It was then contended that the defendants represented themselves as the agents of the said vessel at the port of Karachi. The cargo was duly unloaded and was lying at the port of Karachi. The plaintiffs, therefore, through their Clearing and Forwarding Agents submitted the Bill of Lading for exchange of a direct delivery order, which was accepted by the defendants, on 20th March, 1976. The plaintiffs further alleged that in spite of the above the defendants failed/neglected to issue the delivery order without any justification. It is contended in the plaint that the cargo consists of industrial raw material on which the continuous running of the plaintiffs' paper mills at Nowshera depends with the result that if not delivered the plaintiffs will be exposed to irreparable injury including the total disruption of the functioning of the mills.
3. ' On these allegations the plaintiffs filed this suit on 1st April, 1976 praying for the following reliefs :-
(1) To declare that under the Bill of Lading defendants are bound to deliver the goods to the plaintiffs.
(2) To issue a mandatory injunction/direction to the defendants and to the Karachi Port Trust to deliver the said 4812 bales to the plaintiffs after realizing the usual port and customs dues and to all authorities to clear and deliver the said goods to the plaintiffs.
4. ' Alongwith the plaint the plaintiffs submitted the application under Order XXXIX, rule 6 read with section 151, C. P. C. Praying that an order be given to the defendants to forthwith issue the delivery order in respect of the consignment in question and if the defendants fail to issue the delivery order within 24 hours Karachi Port Trust and Customs Authorities be directed to deliver the consignment to the plaintiffs. Notice of this application was ordered to the defendants, who in response filed their counter-affidavit, on 6th April, 1976. As regards the factual aspect of the case, the contentions raised by the defendants are that they are the agents of Messrs Yamashita Shinnihon Steamship Company Limited, Tokyo, who are the time-chartered owners of the vessel M. S. Stephanos Veroottis. It is further contended that the principals of the defendants had withdrawn the said vessel from the service of Century Ship Lines Ltd. On their failure to pay charter hire and other expenses. The Bill of Lading was issued by the said Century Ship Lines Ltd. Who were the contractual carriers to whom freight, if any, has been paid but their principals had not been paid any freight.
5. According to the defendants their principals found on the said vessel the goods mentioned in the Bill of Lading in suit alongwith various other consignments, which were brought to their respective destination although the principals of defendants were under no obligation to do so. The defendants, therefore, claimed a right of lien on the cargo for freight and other expenses and charges in respect thereof. The claim is founded on allegations that the defendants' principals are bailees and finders. The defendants, therefore, deny the right of the plaintiffs to delivery of the goods until the payment of their dues which were tentatively estimated at U. S. $ 1,91,179 equivalent to Pakistan Rs, 18,92,672. The defendants further fortified their claim to lien even on the terms of the Bill of Lading. Besides these averments of fact, the defendants also raised legal objections to the maintainability of the suit and the application for grant of interlocutory order.
6. ' The other application made by the defendants is for rejection of the plaint on the ground that the reliefs claimed in the suit are grossly and arbitrarily under-valued.
7. ' I have heard Mr. Mansoor Ahmed Khan learned counsel for the plaintiffs and Mr. Haider Mota learned counsel for defendants and I must confess that both learned counsel addressed to me thoroughly well-prepared arguments extensively dealing with all the questions of law raised for consideration.
8. ' Mr. Haider Mota in support of his application referred to the prayer clause in the plaint and contended that the suit from the averments in the plaint is patently for recovery of goods of the value of about Rs, 40 lacs. He accordingly submitted that in substance the suit is of the nature mentioned in section 7 (ii) of the Court Fees Act for moveable property having a market value and, therefore, the valuation for the purposes of court-fees would be the market value of the goods.
9. Learned counsel went on to argue that even if the suit fell within the purview of section 7 (iv) (c) of the Court-Fees Act, the plaintiffs cannot be permitted to arbitrarily value the suit at any fanciful valuation and the Court always retains the power to correct such arbitrary valuation. He referred to the provisions of Order XX, rule 10, C.P.C. Which provide that in case of a decree for delivery of movable property the decree shall also state the amount of money to be paid as an alternative if delivery of such property cannot be had.
10. ' Mr. Mansoor Ahmed Khan on the other hand attempted to justify the valuation and submitted that the suit in substance is a suit falling under section 7 (iv) (c) of the Court Fees Act which relates to suits for movable property where the subject-matter has no market value, as, for instance in the case of documents relating to title. The argument of the learned counsel was that in terms of Bill of Lading Clause 28 after the goods are discharged at the port of destination, the carrier is bound to exchange the Bill of Lading for a release or delivery order and, therefore, the relief claimed in the suit is for obtaining the delivery order which constitutes the document of title, so far as the plaintiffs are concerned counsel went on to submit that the goods are admittedly the property of the plaintiffs and but for the negligence or refusal of the defendants to issue the necessary delivery order, the port authorities who are the statutory bailees of the plaintiffs would deliver the goods to them.
11. ' During the course of the arguments, on 13th April, 1976 the learned counsel for the plaintiffs submitted an application under section 149 read with section 161, C. P. C. Offering to pay court-fees upon the amount found due and payable by the plaintiffs 'if any' to the defendants. In this connection learned counsel submitted that the suit was valued at Rs, 30,000 as the defendants refused to disclose the reason for not issuing the delivery order with the result that the plaintiffs were not aware of the claim of the defendants.
12. ' The perusal of the prayer clause of the plaint clearly shows that the plaintiffs are seeking delivery of the goods admittedly valued at Rs, 40 lacs. There is no doubt that the form in which the relief clause has been couched is that of a suit for declaration and consequential relief. Normally, therefore, the plaintiff has the right to value the suit according to his own choice. However, it is now well-settled that the Court is not powerless to correct arbitrary valuation given by the plaintiff. The Court can always A direct the plaintiff to correct such valuation. Thus, it was observed in!
13. Muhammad Siddique v. Haji Ahmed and Co. (1) as follows :- "It seems to us that ordinarily in suits falling under section 7 (iv) (c) a plaintiff is entitled to put his own valuation but in case the Court comes to the conclusion that it is arbitrarily fixed it can put its own valuation and ask the plaintiff to pay court-fee on the valuation. We are in respectful agreement with the view of Davis, J. C. That absence of rules under section 9 of the Suits Valuation Act is not bar to the exercise of the power under Order VII, rule 11, C. P. C. And that the question as to what is proper valuation depends upon the circumstances of each suit and the judicial decision of the Court. To hold otherwise would mean to give unlimited power to litigants in drafting their powers so to include or exclude relief with a view to confer jurisdiction in the Court to try the suit."
14. ' The question for consideration, therefore, is whether this Court shall exercise the power to direct the correction of the valuation of the suit, if the suit is of the nature, as it purports to be, a suit falling under section 7 (iv) (c) of Court Fees Act. On the other hand if the suit is one falling under section 7
(iii) obviously it must be valued according to the market value of the goods.
15. ' I have considered the respective contentions of the learned counsel for either side and have come to the conclusion that for the present purposes it is not necessary to give a finding as to the exact nature of the suit and to whether the suit is insufficiently valued for the purposes of court-fees. That question if raised in the written statement of the defendants might well be decided as an issue at the trial. To my mind it is premature to decide whether the suit is in proper form so far as the raliefs claimed are concerned. If at the trial the plaintiff is not found entitled to the relief of declaration or injunction in the manner in which they are sought it will be for the Court at the trial to refuse to give a decree for these reliefs. Be that as it may, the substance of the dispute between the parties is whether the defendants are entitled to the payment claimed by them by way of lien. It is not disputed that the goods being to the plaintiffs and subject to the claim if any for the payment of charges demanded by defendants, the plaintiffs are entitled to get delivery of the goods. The plaintiffs, therefore, really seek adjudication of the validity of defendants' claim and the fate of the suit inevitably depends upon the decision of the question. The principle governing the valuation of the suit in the context of the above circumstances to my mind, depends upon the real value of the subject-matter of the suit. In other words it is to be seen what liability asserted by the defendants or right claimed, the plaintiffs seek to avoid. Applying these principles it is quite obvious that the plaintiffs are seeking to avoid the payment claimed by the defendants and, therefore, the value of the subject-matter of the suit should be the amount claimed by defendants.
16. As stated above in their counter-affidavit the defendants claimed Rs, 18 lacs but in the course of arguments their learned counsel revised this figure and reduced it to Rs, 11 lacs. In exercise of the powers of this Court to correct the valuation, therefore, I would order the plaintiffs to value the suit at Rs, 11 lacs and pay court-fees ad valorem on that amount. I have not found any warrant for the submission that the plaintiffs be permitted
(1) PLD 1967 Kar. 46S to pay court-fees on the amount eventually found due and payable to the defendants. .
17. ' Coming now to the application by plaintiffs, it has been made under Order XXXIX, rule 6, C. P. C. For a direction to the defendants to issue the delivery order in respect of the goods to the plaintiffs. Mr. Haider Mota, learned counsel for the defendants has vehemently opposed this application and has raised the following contentions :-
(1) That the application in substance is for a mandatory injunction, which in the facts and the circumstances of this case cannot be granted.
(2) That the granting of this application would tantamount to not only passing a decree in favour of the plaintiffs without a trial but also to executing the same.
(3) That the plaintiffs have no present right to deprive the defendants of their right to withhold delivery of the goods by virtue of their right of lien.
(4) That the suit is barred under section 42 of the Specific Relief Act.
(5) That the suit is barred under section 56 of the Specific Relief Act.
18. ' On the facts learned counsel contended that the defendants took over the ship after the goods were on board and were under no obligation to carry them to Karachi. He therefore contended that they were finders of the goods and accordingly under section 71 of the Contract Act they were entitled to all the rights of a bailee including the right of lien under section 170 of the Contract Act for charges incurred or remuneration for carriage of goods to the destination. He also referred to section 168 and section 70 of the Contract. Act in support of the right of the defendants to retain the goods until the compensation demanded by them is paid by the plaintiffs. Counsel went on to argue that besides the statutory right of lien or retention of goods, as stated above the defendants have a general lien on the goods under the common law.
19. ' Elaborating his contentions the learned counsel for defendants argued that if once the goods pass out of the custody of the defendants, in the event of suit being dismissed, the Court will not be in a position to restore the defendants to their present position. He further argued that the prayer for declaration is not competent under section 42 of Specific Relief Act as no legal character or right to property was claimed. The plaintiffs merely seek the declaration of the obligation of the defendants to deliver the goods and do not, in terms, seek the declaration of a right to property. As regards the permanent injunction the counsel argued that the suit is not maintainable as money compensation would be adequate relief of the injury complained of. Finally the learned counsel submitted that even in the Bill of Lading which the plaintiffs were seeking to enforce the carrier's right to a lien for freight and other charges was fully preserved in Clause 26 thereof. Therefore, under any circumstances, the counsel urged, there was no escape for the plaintiffs to avoid the payment demanded by defendants before they could claim delivery of the goods.
20. ' In support of the application Mr. Mansoor Ahmed Khan the learned counsel for the plaintiffs refuted the contentions of the learned counsel for defendants. He submitted that although the purport of the application is that of on application under rule 6 of Order XXXIX, C. P. C., the prayer in substance falls under rule 10 of Order XXXIX, C. P. C. He vehemently contended that the defendants have no right to withhold the delivery order as they have no locus standi to illegally interefere with the operation of the contract of carriage between the plaintiffs and the Century Shiplines Ltd.
21. Counsel submitted that the Bill of Lading very clearly shows on its face that all freight and other charges under the contract were prepaid and that nothing was due to the carriers. Learned counsel further submitted that the contract of carriage relating to the goods came to an end as soon as the goods were free from the tackle of the ship and with that all rights of lien, if any, also ceased to operate and could not outlive the contract. In this connection learned counsel referred to the definition of "Contract of Carriage of Goods" in Article I (h) of the Schedule to the Carriage of Goods by Sea Act. 1926 which provides that such contract applies only to contracts of carriage covered by a Bill of Lading or any similar document of title, insofar as such document relates to the carriage of goods by sea from the moment at which such Bill of Landing or similar document of title regulates the relation between a carrier and a holder of the same. He then referred to clause
(e) of the same Article which says that "Carriage of Goods" covers the period from the time when the goods are loaded on the time when they are discharged from the ship. In support of the proposition counsel cited New Jubilee Insurance Company Limited, Dacca v. United Oriental Steamship Company, Karachi (1) and East and West Steamship Company v. Hossain Brothers (2).
22. ' On these premises learned counsel went on to submit that the goods after being discharged from the ship are in the custody of the port authority and the defendants have no dominion over them.
23. Accordingly, the counsel urged, in terms of the Bill of Lading the defendants are legally bound to exchange the Bill of Lading for the delivery order. If they had any right of lien they had to give notice to the Karachi Port Trust under section 47 of the Karachi Port Trust Act, 1886. On the authority of New Jubilee Insurance Company case the counsel contended that the Karachi Port Trust is not the agent of the carrier, but is the statutory bailee of the goods PLD 1974 Kar.
24. 321.
25. ' To these contentions learned counsel for the defendants replied by submitting that the Carriage of Goods Act only invalidates the contract to the extent of repugnancy and that section 47 of the Karachi Port Trust Act is an enabling provision. It was contended that if no notice under section 47 was given the contractual rights of lien are not destroyed. Learned counsel for the defendants also questioned the validity of the view held in New Jubiles Insurance Company case on the plea that the learned Judges had... Which amount is a charge on the goods.
26. ' Now the first question to consider is as to the nature and scope of the interlocutory relief prayed for in the application. It goes without saying that the facts and the circumstances of this case do not warrant the exercise of power under Order XXXIX, rule 6, C. P., C. For the conditions of that Rule are totally absent in this case. It is also true that if this is an application for injunction, it would be of a mandatory nature and would; therefore, not be sustainable in law. It is well-settled that injunction in the mandatory form can only be issued to restore .Status quo as on the date of institution of the
(1) PLD 1975 Kar. 547 (2) PLD 1968 SC 15 suit and not so as to bring about a new state of things. However, the learned counsel for the plaintiffs has pressed the application as falling under Order XXXIX, rule 10, C. P. C. And looking to the prayer I am of the opinion that the application is in substance one under rule 10 of Order XXXIX, C. P.
27. C. I would accordingly consider the case in the light of the provisions of that Rule.
28. ' This rule is contained in 0;der XXXIX of the Code of Civil Procedure which regulates, as its heading shows, the powers and procedure of the Court in regard to temporary injunctions and interlocutory orders. The leading provision summing up the general powers of the Court in regard to the various kinds of interlocutory orders in the Code is section 94 which is in the following terms :- "In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, -
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the Civil prison ;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property ;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold ;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property ;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient,"
29. ' Under rule 10 the Court has the power to order money or other property capable of delivery to be deposited in Court or delivered to any party. This Rule is as follows :- "Where the subject-matter of a suit is money or some other thing capable of delivery, and any party thereto admits that he holds such money or other thing as a trustee for another party, or that it belongs or is due to another party, the Court may order the same to be deposited in Court or delivered to such last-named party, with or without security, subject to the further direction of the Court."
30. The conditions for application of the Rule are :-
(1) The subject-matter of the suit is money or some other thing capable of delivery.
(2) The opposite party admits that he holds such money or thing as a trustee or belongs or is due to another party.
31. ' If these conditions are present the Court has the power to order the thing to be delivered to the party entitled to it with or without security, subject to further direction of the Court. On the true construction of the section it seems to me that on the principles governing the exercise of power, the key words are found in section 94 clause (e) C. P. C. That such interlocutory orders ought to be made when it is "just and convenient." These same words occur in Order XL, rule 1, C. P.
32. C. In regard to the appointment of receiver and in that connection have received extensive judicial interpretation by the superior Courts in the Sub-continent. In fact section 503 of the old Code restricted the powers of the Court in making appointment of receiver to certain specific purposes but the present Rule has brought it into line with the powers exercised by the English Courts under the English Law. The provision of the English Law corresponding to this rule viz. Section 25 of the Judicature Act, 1973, new section 45 of the Judicature Act, 1925 uses the words "just or convenient", which have been interpreted to mean "just and convenient". The principles deducible from the judicial pronouncements of the Courts in the Sub-continent and English are that a plaintiff applying for relief must show prima facie that he has a strong case and good title to the property or a special equity in his favour that the property in the hands of the defendants is in danger of being wasted. Further the power to pass an order of this nature is within the judicial discretion of Court. The words "just and convenient" have been construed as meaning that "it is practicable and interests of justice require it." (19 2 K B 1903).
33. ' The next question, therefore, in the present case is whether the interlocutory order for direction to deliver the goods to the plaintiffs is necessary for the protection of some rights of the plaintiffs. The glaring fact is that the goods. Were imported by the plaintiffs for use as industrial raw material in their paper manufacturing factory. It is also true that there are very few paper mills in the country and that there is shortage of paper. In these circumstances the anxiety and the urgency shown by the plaintiffs to obtain the consignment at the earliest is patently understandable. Also the situation inherently negatives the possibility easy access to alternate arrangements for procuring supplies locally. It is also obvious that the goods were imported at the cost of valuable foreign exchange under an import licence which must have been granted according to entitlement of the plaintiffs in the scheme of overall import capability of the country and foreign exchange position obtaining at the relevant time. In reply to the Court question the defendants counsel stated at the bar that if the payment demanded by them is not paid by the plaintiffs the defendant shall sell the goods in the open market in order to realize their dues. It is, therefore, clear that either the plaintiffs will be compelled to make the payment or the goods may eventually fall in the hands of buyers who may not have been entitled to import the goods in the first instance.
34. ' On the other hand the controversy raised by the defendants if analysed resolves itself into a money claim. They do not claim any other interest in the goods but the alleged lienery right to retain the goods until the money claim is satisfied. Therefore, the controversy is not in any way concerned with the title in the goods which admittedly vests in the plaintiffs. As finders of the goods, the defendants are subject to the same responsibility as bailees as provided by section 71 of the Contract Act. The right of the finder of goods to sell the goods for his charges is contained and circumscribed by section 169 of the Contract Act which reads as follows :- "When a thing which is commonly the subject of sale is lost, if the owner cannot with reasonable diligence be found, or if he refuses, ' upon demand, to pay the lawful charges of the finder, the finder may sell it-
(1) When the thing is in danger of perishing or of losing the greater part of its value, or,
(2) When the lawful charges of the finder, in respect of the thing found, amount to two-thirds of its value.
35. ' The perusal of this section shows that the finder can sell the goods either when they are in danger of perishing or losing their value or when the finder's charges amount to 2/3 of their value. It is therefore yet to be seen whether in the circumstances of this case the defendants would have the right of sale specially when their claim is admittedly less than 2/3 of value of the goods.
36. ' In the background of these circumstances it is to be seen whether the Court can avail itself to pass the order prayed for. As stated above the plaintiffs are undoubtedly the owners of the goods and the claim by the defendants upon the goods is limited, at the most to Rs, 11 lacs. Learned counsel for the defendants very fairly conceded at the bar that the defendants have the fight to retain only so much quantity of goods which is sufficient to satisfy their claim and further stated that he would have no objection to delivering the rest of the goods to the plaintiffs. So far as objections to the maintainability of the suit are concerned, besides the relief of declaration the plaintiffs have also prayed for a mandatory injunction or direction to the defendants to deliver the goods to them. Even if the relief of declaration is held to be not competent under section 42 of the Specific Relief Act, the nature of the relief of injunction is such that it may be found to be sustainable independently and by way of consequential relief. I also find no force in the contention that the injunction sought for would be barred by section 56 of the Specific Relief Act, for, in substance the relief sought in suit is for delivery of movable property under section 7 of the Specific Relief Act. In these circumstances there appears to be no controversy with regard to the delivery of the goods in excess of goods of the value of the claim of the defendants. So far as this quantity of goods is concerned the defendants as obviously holding the same as trustees for the plaintiffs latter are entitled to immediate delivery thereof. As regards the quantity of goods that the defendants wish to retain in order to satisfy their claim, it is undeniable that these goods also belong to the defendants. The only right claimed in regard to these goods is the right of retention by way of lien for compelling payment of a money claim. I cannot subscribe to the view of the learned counsel for the defendants that if they are compelled to deliver these goods they will permanently be deprived of their right of lien. Order XXXIX, rule 10, C. P. C. Amply empowers the Court to safeguard the interests of the party against whom an order under that provision is made, by order in security to be furnished by the party in whose favour the order is made subject to directions at the time of judgment for payment of money found due and payable to the first mentioned party. I do not think that it would be necessary for the defendants, in such case, to file a counter claim or a separate suit for recovery of the amount claimed under the lien. No party can be made to sutter injury by the act of the Court.
37. In this view of the matter I have come to the conclusion that the 'G plaintiffs have made out a strong prima facie case and a special equity in their favour for interlocutory relief. Having regard to the circumstances of this case, as discussed above, I am clearly of the opinion that it would be just and convenient to order delivery of the goods by the defendants to the plaintiffs. But in order to protect the rights of the defendants the plaintiffs must be required to furnish a bank guarantee for an amount of Rs, 11 lacs to be applied to the payment of the amount found due and payable by the plaintiffs to the defendants on the decision of this suit.
38. In the result, both applications are allowed. The plaintiffs shall correct the valuation of the suit to Rs, 11 lacs and pay court-fees as per that valuation within 7 days from this date failing which the plaint shall be rejected. If the plaintiffs value the suit as above and pay the court-fees an order shall issue directing the defendants forthwith to issue the delivery order in lieu of the Bill of Lading mentioned in the suit to the plaintiffs through their Clearing and Forwarding Agents, Messrs United Aids in respect of the consignment in suit consisting of wood-pulp subject to the plaintiffs furnishing an unconditional and unqualified bank guarantee undertaking to pay to the defendants the amount, not exceeding Rs, 11 lacs that may be adjudicated by the Court as payable by the plaintiffs to the defendants, I further direct that after the pleadings are completed the defendants shall be entitle to apply for early date for the trial of the suit.