This revision assails the order dated 14-3-1985 of the learned Senior Civil Judge, Sialkot, whereby he held that the respondent's suit for damages for loss of goods was within time.
2. Allegedly the respondent-firm consigned some surgical goods by 18 packages to the petitioner Messrs Kuwait Airways through their local agents on 30-9-1981 for being sent to a buyer in Dallas, U.S.A. Unluckily the goods did not reach the consignee; nor was anything told to the respondent/plaintiff about their transit despite its repeated reminders. Ultimately, the petitioner Airways informed through their letter, dated 25-9-1983 that they had delivered the goods to the Customs Authorities in U.S.A. On 29-10-1981 and that presumably after clearance the consignee might have received them. Since the respondent /plaintiff had no information from the consignee of receipt of the goods, nor had it been paid, therefor, it brought the present suit for damages to the tune of Rs.2,30,000 for their loss or non-delivery. Reliance was placed upon clause 11 of the contract of air-transit by which the petitioner-- carrier had agreed to give a notice of arrival of goods to the consignee and in case of refusal on his part to receive delivery, to act on the respondents instructions as shippers. It was maintained that no such notice was given to the consignee, nor were the respondent's own instructions sought in regard to the delivery or disposal of goods and that by their negligence the petitioner-carrier were liable to damages. Their local agents as well were impleaded.
3. The suit was resisted by raising preliminary objections to the effect that the joinder of local agents was misplaced and further that the suit was barred by time.
4. The findings of the trial Court in regard to issue of rejoinder of local agents was against the respondent /plaintiff while the issue a. To limitation was held in their favour.
5. It has been contended that Article 31 of the Limitation Act applied prescribing a period of one year for such suits beginning from the date when the goods ought to be delivered. Referring to para. VII of the plaint, it was urged that on the respondent /plaintiff's own showing the goods had reached the United States on 29-10-1981 when those were delivered to Customs Authorities for clearance and that the limitation starting from the said date, expired in October, 1982. The suit instituted on 29-9-1984 was thus said to be clearly barred by time. This argument was not accepted by the trial Court and for good reasons. There was no indication by any document whatsoever as to when the goods delivered on 30-9-1981 to the petitioner-carrier at Sialkot ought to have been delivered to the consignee in Dallas. This Article obviously could apply only to a situation where some expected date of delivery may have been pointed out. The respondent /plaintiff could never know it at Sialkot, because the goods had to pass many stages to become deliverable in U.S.A. Unless the petitioner could show any hard date in this behalf, it was entirely absurd to expect the respondent-consignor to know of the date of delivery. Nor was it clear if the petitioner-carrier had themselves to carry it all along or to get it transhipped through any other carrier. The indications are that even Pan-American Airways was involved for carrying the goods at least from Washington to Dallas. Manifestly the respondent /plaintiff could not know about those internal arrangements of the petitioner with any other carrier. There can be no exception taken to the view of the Court below on this point.
6.Conversely, the respondent's case was that the application of the Limitation Act was excluded as rule 29 framed under a special law, namely, Carriage by Air (International Convention) Act, 1966, applied and a period of two years for the suit from the date of arrival at the destination or from the date on which the aircraft ought to have arrived) or from the date on which the carriage stopped was provided. The expression "ought to have arrived" was construed to mean final refusal of the bailee to make delivery. Reliance in this behalf was placed on Federation of Pakistan v. Sh.
Muhammad ldrees Barry PLD 1964 (W.P.) Lah. 457; Gulzar Ahmed v. Sind Punjab Goods Trnasport Co. PLD 1966 (W.P.) Kar. 253 and Abdul Jalil Chowdhury v. The Muhammadi Steamship Company Ltd. And another PLD 1961 SC 340. On this interpretation, the final refusal in this case was made by the petitioner's letter, dated 25-9-1983 and the suit filed on 29-9-1984 was within the period of two years.
7. The contention that the respondent /plaintiff knew of the arrival of goods in U.S.A. As mentioned in para. VII of their plaint cannot be accepted. It was a recapitulation of a fact brought to its notice by the petitioner-carrier in their communication dated 25-9-1983 and was not something based upon their own knowledge. For this reason Delhi Cloth and General Mills Co., Ltd. v. Federation of Pakistan PLD 1964 (W.P.) Lah. 444 did not apply.
8. The undeniable fact is that clause 11 of the formal agreement between the consignor and the carrier placed an obligation upon the latter to inform the consignee of the arrival of goods so that he could receive delivery and in case of his refusal take further instructions of the consignor. This provision impinges upon the duty cast upon the petitioner to have acted accordingly but there is no evidence on the record to reveal if it was complied with. All the more, therefore, the respondent /plaintiff was justified ill invoking rule 29 framed under Carriage by Air (International Convention)
Act, 1966 and to start limitation from the final refusal on the part of the petitioner to arrange delivery. Considering from this premise also, the suit was rightly held to be within time.
9. There is no substance in the revision petition and the same is dismissed in limine.