' This is a revision application against the judgment passed by the learned Judge Small Causes Court, Karachi against the applicant Malik Feroz Proprietor of New Malik Goods Forwarding Agency (Regd.) decreeing the claim of the plaintiff in the sum of Rs,,4,283.18. According to the plaint some Kiryana goods namely four bags of coconut, one bag of black pepper, one bag of alum totalling six bags weighing 10 Maunds and 17 seers were sent by the plaintiff to Messrs Muhammad Sadiq Muhammad Jamil Kit'yana Merchants, Chowk Bazar, Bahawalpur through the defendant's transport i.e, New Malik Goods ForWarding Agency (Regd.), Karachi on 9th January, 1978. It is admitted position in the case that the goods did not reach their destination nor were delivered to the consignee. According to the plaint the plaintiff protested to the defendants and it is alleged that a sum of Rs,,2,000 was paid by the defendants to the plaintiff leaving a balance of Rs,,4,307 for which the plaintiff filed a suit being Suit No, 75 of 1980 which has been decreed by the learned Judge of Small Causes Court. The contentions raised by the learned counsel for the applicant- defendant are (1) that the goods were entrusted to New Malik Goods Forwarding Agency which is a registered body. His position in this registered firm is that of only an employee. Neither he is proprietor nor the partner of this firm (2). That the claim in suit was barred by limitation. (3) That no statutory notice which is mandatory was ever served on the appellant.
' The learned counsel relies on section 10 of the Carriers Act, 1865 which is as follows:- "Section 10. No suit shall be instituted against a common carrier for the loss of, or injury to, entrusted to him for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of time when the loss or injury first came to the knowledge of the plaintiff . "
' It is stated that according to para. 11 of the plaint the cause of ation arose in the month of April, 1978 when the documents were returned by the Bank and the right to claim back the cost or return of the goods had accrued to the plaintiff. But notice according to the plaintiff himself was issued on 8th October, 1980 as is evidenced from para 8 of the plaint.
2. The learned counsel further contends that under Article 31 of the Limitation Act the suit should have been filed within a period of one year from the date when the goods ought to have been delivered but in the present case it has been filed beyond the statutory period of one year. These points are questions of law to be determined on appraisal of evidence to be produced by the parties. The learned Judge in the impugned judgment has disposed of this case ex parte as is evidence from the following portion of his judgment:- "The sole point for determination is whether the plaintiff is entitled to the amount claimed in the suit.
' The plaintiff examined himself and produced the documents. The defendant is called absent. No evidence was summoned or produced by the defendant. An application for adjournment was left in the Court which was dismissed and order passed thereon."
' The learned counsel contends that the defendant was busy in a case before a Tribunal and had made an application for adjournment of the case. I am not going to disturb the findings of the learned Judge on question of adequacy or inadequacy of the grounds for adjournment because it is his sole discretion whether to adjourn a case or to accommo date a counsel and allow adjournment. This discretion has been exercised against the counsel and 1 cannot overrule his decision on this point. A such the order of the learned Judge on this question cannot be set aside.
But the learned counsel for the appellant contends that even if adjournment was refused these questions which were on the record ought to have been examined by the learned Judge and a finding to have been recorded against the appellant. Unfortunately that approach has not been brought to hear by the learned Judge in his impugned judgment. If all these points were taken into consideration and the decision was given on all of them there would have been no option for me to reverse this judgment. But that is not so.
3. In the circumstances I would remand the case to the learned Judge of Small Causes Court, Karachi to consider whether he should allow further opportunity to the counsel for the appellant or he would himself decide those points which are involved in the case without re-opening the case and as the material on record.
4. with these remarks this petition is disposed of. Case to be sent back for disposal in these terms.
The learned counsel want that the surety which he has furnished in this Court should be discharged as there is a decree against him and the case is being remanded, he should approach the trial Court for the discharge of this surety.