' This is a suit in rem under Section 4(7) read with Section 3(n) of the Admiralty Jurisdiction of High Courts Ordinance,1980 for recovery of 4,740 U.S. Dollars equivalent to Rs,71,100 on account of unpaid wages of the Plaintiff.
2. The case of the plaintiff is that he was duly certified in terms of sections 12 and 13 'Merchant Shipping Act 1923 and was appointed as Chief Officer of the ship m.v. Gem Carrier in terms of section 2(4) of the said Act and section 2(f) of the said Ordinance with effect from 24th November, 1983 under the Government Shipping Article of Agreement at Karachi. The defendant No,1 is owner of the said ship which was registered at Sharjah (U.A.E.) flying U.A.E. Flag which ship was standing at Karachi Harbour at the time of the filing of this suit. The defendant No,2 is the agent of the defendant No,1 and has office at Karachi, where in accordance with the agreement the plaintiff signed the Article of Agreement on 24-11-1983. The appointment of the plaintiff as Chief Officer of the said ship commenced from 24-11-1983 on monthly wages of 900 U.S.Dollars besides leave money, other usual and customary emoluments as per section 2(4) of the said Act. On 23-7-1984 the defendant No,2 without any rhyme or reason and without giving any notice, in breach of agreement and in express violation of the said Act and Ordinance stopped Plaintiff's wages and other emoluments. The plaintiff made contact several times with `the defendant No,2 in this behalf but all in vain. Due to complete stoppage of supply of provisions and due to non-payment of wages and other emoluments the plaintiff wished to sign off under protest. The defendant No,2 allowed the plaintiff to sign off through the Master of the ship under protest an 21-10-1984 and the letter of Release on Termination of service showing the date of engagement and termination of service and wages was given to the plaintiff. Even afterwards the plaintiff approached the defendant No,2 time and again to make the payment but was kept on false and sweet promises.
Hence this suit.
3. On filing of the suit this Court arrested the ship on 10-2-1985 and released it on furnishing bank guarantee in the sum of Rs,75,000 by defendant No,3.
4. Defendants Nos.1 and 2 were served but they have chosen to remain absent. The suit has therefore proceeded ex parte against them. The defendant No,3 alone has filed Written Statement in which he has stated that Annexure "A" (C.D.C.) is neither signed by the owners nor their authorised Master. It was further stated that defendant No,1 was not the owner of m.v. Gem Carrier.
It was alleged that m.v. Gem Carrier was purchased by Dewan Sons of Karachi which was owned by M/s. Nautical Surveyors Company Limited Sharjah. It was further alleged that the plaintiff was never appointed as Chief Officer either by M/s.Nautical Surveyors Company or any other authorised person. M/s.Nautical Surveyors are not party to any agreement or to this suit. The Vessel was owned by M/s.Nautical Surveyors who had sold it to M/s.Dewan Sons and they are not a party to this suit.
5. On the pleadings of the parties the following issues were framed:-
(1) Whether the plaintiff was appointed/employed as Chief Officer on the ship Gem Carrier (defendant No,3) w.e.f. 24-11-1983 to 21-10-1984?
(2),r Whether defendant No,3 is liable, to pay the wages of the plaintiff amounting to Rs,71,100?
(3) What should the decree be?
' My findings on these issues with reasons therefor are as under:- REASONS. ISSUES Nos.1 and 3.
' On this issue the plaintiff has examined himself as exhibit 5. He has stated on oath that he had signed the agreement on 24-11-1983 and started working as Chief Officer on m.v. Gem Carrier from 26-11-1983. He resigned the job on 20-10-1984. His resignation was accepted on 21-10-1984 and he was given release order. He had produced the photo copy of the release order. The Advocate for the defendant No,3 has objected to the production thereof. The question of admissibility of the documents was deferred. Subsequently the original Release Certificate has been produced through the Superintendent Government Shipping Office Karachi Mirza Rais Baig. The objection is therefore over-ruled. The Plaintiff has also produced his continuous certificate of discharge (CDC) as exhibit 6. He has then examined Mirza Rais Baig, Superintendent Government Office Karachi as exhibit 7, The evidence of this witness is very important. I, therefore, reproduce the following passage from his evidence:- "I am a -Superintendent of the Government Shipping Office. Whenever a Pakistani Seaman is employed on any ship, the agreement between the parties is registered within the Shipping Office. I have brought the original agreement which was filed in our office. This agreement was between Abdul Rahim Plaintiff and Ameeje Waliji and Sons who were the local agents of the ship m.v. Jem Carrier the defendant No,3. According to this agreement the plaintiff was employed as a Chief Officer on the ship m.v. Jem Carrier, at a salary of U.S.$ 900. The Master of this ship has filed a statement of wages of the employees of the ship for the period 24-11-1983 to 23-7-1984. According to this statement the plaintiff Abdul Rahim had to be paid by the ship as balance of his salaries and emoluments U.S.$ 4,740. Whenever the employee is paid his dues at the time of discharge, this payment is to be made in presence of the shipping Master. According to my record, the dues of the plaintiff as mentioned by me earlier were never paid. The agreement does not mention anything about leave money."
' He has also produced the original agreement for foreign going ships signed between the plaintiff and the agent of the owners of m.v. Gem Carrier and filed with the Shipping Master as exhibit 7/1.
He has also produced the account of wages dated 23-7-1984 as exhibit 7/2. Besides this, he has produced the release form in original as exhibit 7/3. He has made it clear that according to rules and practice whenever an employee wants to resign on account of non-payment of p his dues he is to put a note of protest on the release form (Shipping Office Form 17). This form is to be signed by the employer and the employee before the Shipping Master and is retained in Shipping Master's record. In this case such a form was signed by the plaintiff and M/s.Diamond Mubarik who were the local agents of the ship at that time. The witness has categorically stated that according to his cord no wages have been paid to the plaintiff as yet. Mr. Abbas Ali, the Advocate for the defendants had objected to the examination of this witness vide application C.M.A. No,350/87. The Court deferred the decision of the objections raised in this application. The main contention of the Advocate for defendant No,3 was that the name of this witness was not given by the plaintiff in the list of witnesses and as a matter of fact no list of witnesses was filed by the plaintiff at all. The summons were got issued from the office in the absence of such a list. The documents produced through this witness were not filed in time after the issues were framed. It may be pointed out that the office of the Shipping Master is a very important office from the point of view of admiralty jurisdiction. Almost all the important transactions between various parties coming under this jurisdiction are to be compulsorily registered with this office. It is not disputed by the Advocate for the defendant No,3 that the witness is not th.) Superintendent of Government Shipping Office Karachi. As such it will not be proper to exclude the evidence of such an important witness as well as the documents produced by him merely on the technical grounds that his name was not disclosed in time or the copies of the relevant documents were not produced. Most of these documents were not in possession of the plaintiff and therefore he was not expected to file the copies thereof. I therefore dismiss this application and order that the evidence of this witness as well as documents produced by him be treated as properly admitted and be now taken into consideration and objection is over-ruled.
6. The witness has categorically denied that the suggestion of the defendant that M/s.Ameeji Waliji were not the agent of the ship on 24-11-1983 and has stated that according to their record M/s.Ameeje. Waliji were the agent of the owners of the ship. He has also made it B clear that in the absence of Master of the Ship the agent of the Company can also sign the release and termination of service forms which was actually signed by M/s.Diamond Mubarik who were the agents of the company at the time of discharge of the plaintiff from service. He has also asserted that no payment was made to the plaintiff and that according to the procedure all such payments were to be made in presence of the Shipping Master.
7. It would, therefore, appear that the plaintiff has proved that he was an employee and appointed as Chief Officer on the ship m.v. C Gem Carrier on 24-11-1983 and was released on 21-10-1984.
8. The defendant No,3 has neither disputed the salary of the plaintiff nor has he alleged to have paid the same to him. In his deposition exhibit 8 Mohammad Imran Farooqui D.W.1 who claims to be a partner of a ship breaking concern admits to have purchase this ship and to have paid the dues of all the crew of that ship. He has alleged that he had purchased the ship from M/s. Nautical Surveyors Company Limited. He has produced certificate of registery given to him by the sellers of the ship. The delivery of the ship was given to them by Wadlay Middle East Bank Karachi. He has himself admitted that when the ship was delivered to them the agent of Wadley Middle East Bank came to them and asked them to settle the dues of the employees of the ship. He, therefore, cleared the dues of all the members of crew of this ship. It is admitted by the witness that the payment was not made in the presence of any officer of or at the office of the Shipping Master. He has admitted that a list of crew of the ship to whom he was required to make payment was given to him. He has stated that the name of the plaintiff was not there in the list but he has not produced the list. The suppression of the list creates adverse presumption against the defendant No,3 and in favour of the plaintiff. Similarly the fact that the payment was not made in presence of Shipping Master as required by law and procedure also adversely reflects on the case of the defendant No,3. The Advocate for defendant No,3 has tried to make much capital out of the photo copy of the document exhibit 8/2 which the plaintiff had tried to produce through him. This document was a letter purported to have been written by Nautical Surveyors Company Limited appointing Mustafa Karim as their Shipping Manager and showing that 43,000 U.S.Dollars be paid to Diamond Mubarik from the price, who was their agent. It was pointed out that the letter head of this document appeared to be forged in that the visiting card of General Marine Services Mustafa Karim Shipping agent was forged on it through photographic device. It may be pointed out that in the absence, of the original letter no finding one way or other can be given of course the Court will refuse to look into the document exhibit 8/2 on the ground that its original is not produced.
9. From the above evidence, I am fully satisfied that the plaintiff has proved his case and that the defendant No,3 has failed to substantiate his allegations.
' I, therefore, hold both these issues in favour of the plaintiff and decree the plaintiff's suit for an amount in Pakistani rupees equivalent to 4,740 U.S.$ against the defendants jointly and severally and along with interest at per annum from the date of filing of the suit till the payment of the amount. The costs of the suit shall be borne by the defendants.