1. This is a suit filed by the plaintiff for the recovery of US $ 1,310 equivalent to Pak Rs.17,030 being the alleged amount of wages of salary. The break up of the above claim is given in para 9 of the claim which reads as under:- " That upto date amount of wages/salary which the Plaintiff is entitled to get from the Defendant is as follows: Balance upto 5-3-1983 US $ 950.00 Wages from 6-3-1983 to 16-3-1983 (12 days @ $ 30.00 per day)US $ 360.00 Total US $ 1310.00 (Equivalent to Pak Rs.17,030.00)"
2. It is the case of the plaintiff that Mr. Shakilur Rehman the Manager of the owner firm of the vessel forcibly obtained resignation from him on 24-2-1983 while he was still on board of the vessel at the outer anchorage at Karachi, whereas the case of the defendant is that the above resignation was voluntarily. Be that as it may, the plaintiff was brought at the Port on 5-3-1983. Since the plaintiff's accounts were not settled by the defendant, he filed above suit for the above amount. The above suit has been resisted by the defendant and inter alia it has been pleaded that the resignation was voluntarily given by the plaintiff and that the plaintiff was entitled to a total salary of U.S. $ 614 at the time when he resigned. On the basis of pleadings of the parties the following issues were framed: (1)Did the Plaintiff join the Defendant ship on 27-1-1983 so as to be entitled to claim wages from 27th January, 1983?
3. (2)Was the Plaintiff forced to submit his resignation from service of the Defendant as alleged in paragraph 2 of the plaint? If so, its effect?
4. (3)Has the Plaintiff been signed off in accordance with the provisions of the Merchant Shipping Act, 1923? If not, upto what period of time he is entitled to receive his wages from the Defendant ?
5. (4)What amount is payable by the Defendant to the plaintiff on account of salary/wages?
6. (5)To what relief is the Plaintiff entitled ?
7. ISSUE No.1: There is testimony of the plaintiff that he joined the vessel on 27-1-1983. The above statement of the plaintiff has not been challenged in the cross-examination nor there is any evidence in rebuttal. I would therefore answer the above issue in affirmative.
8. ISSUE No.2 The plaintiff in his deposition has stated that Mr. Shakilur Rehman came on board of the vessel while it was at the outer Anchorage of Karachi Port twice and shouted at him and threatened him and asked him to resign and because of that he tendered resignation on 24-2-1983. Neither the plaintiff nor the defendant has produced the original or the copy of the above resingation. The fact that the above resignation was obtained under threat is also mentioned in a complaint made by the plaintiff to the Shipping master Government Shipping Office Karachi on 10-3-1983 Ex.5/5 which was made after about four days from the date when the plaintiff applauded from the board at the Port of Karachi. The defendant has not produced any evidence as stated by me herein above. The Master of the vessel had issued wages of account Exs. 5/2, 5/3 and 5/4 under section 44 of the Merchant Shipping Act, 1923 which indicate the period from 27--1-1983 upto 5th March, 1983. The above certificates negate the factum of resignation on 24-1-1983. The preponderance evidence seems to be that the above resignation was not accepted by the Master of the vessel for the purpose of the discharge of the defendant liability to pay wages. I would therefore hold that in the absence of the production of the resignation and in the absence of any evidence contrary to the above evidence referred to my finding would be that the resignation cannot be relied upon.
9. ISSUE No.3: There is no evidence from the side of the plaintiff to prove that he could not have obtained a job because that he had not been signed off by the defendant or the Master of the vessel in accordance with the provisions of the Merchant Shipping Act. On the contrary the application dated 16-3-1983 filed by the plaintiff in this Court indicates that M/s. Gokul & Company were willing to employ the plaintiff but were not inclined to employ him for the reason that the above suit was pending and because of that the plaintiff obtained a certificate from this Court for getting employment. I would therefore decide the above issue in the negative.
10. ISSUES Nos.4 & 5: As observed hereinabove the claim of the plaintiff is for two items namely wages from 27-1-1983 upto 5-3-1983 and the wages from 6-3-1983 to 16-3-1983. In support of the above claim Mr. Shujat A.I learned counsel for the plaintiff has vehemently contended that the plaintiff is entitled to above both the claims whereas Mr. Abdur Rauf learned counsel for the defendant has submitted that since the plaintiff has signed Ex-5/7 a receipt for final settlement of his claim for wages for the period from 31-1-1983 to 5-3-1983 this Court should hold that no amount is due and payable by the defendant to the plaintiff. In this regard, it may be observed that there two pieces of documentary evidence on record apart from ocular evidence of the plaintiff, namely the accounts certificate issued by the Master of the vessel under section 44 of the Act namely 5/2, 5/3 and 5/4 and the above receipt 5/7.
11. It has been vehemently added by Mr. Abdur Rauf that since the Exs.5/7 is a subsequent document accepted by the plaintiff it is more evidentiary value and it is to prevail upon Exs.5/2, 5/4. At this stage it may pertinent to refer to the order dated 17-3-1988 passed by the then Hon'ble Chief Justice in relation to the payment of the above amount witnessed by aforesaid Ex.5/7 which reads as follows: "Without prejudice to the contentions to be raised hereafter, Mr. A. Rauf has produced a cheque No. K.C.A. 171640 dated 12-3-1983 drawn on Dubai Bank Limited for a sum of Rs. 7,696 in favour of the plaintiff. This cheque is handed over to the plaintiff. In addition the defendant undertakes to furnish security in the sum of Rs.9,500 to the satisfaction of the Nazir of this Court within a week.
12. Mr. A. Rauf gives an undertaking in this Court that the vessel shall bot be removed from Karachi before giving security. This undertaking is accepted. Breach of this undertaking shall be construed as breach of injunction.
13. The cheque is handed over to the plaintiff."
14. I am unable to accept the contention of Mr. Abdur Rauf that the above receipt can be treated as the final payment for wages upto 5-3-1983, for more than one reason. Firstly the period of the service mentioned in the above receipts seems to be incorrect as 1 have already held hereinabove under issue No.2 that from 27-3-1983 and not from 31-3-1983 and therefore the period shown is incorrect. Secondly, if the plaintiff had resigned on 24-2-1983 voluntarily there was no occasion for the defendant to have paid the salary upto the date of 5-8-1983 as reflected in receipty. Thirdly, account certificates issued by the Master of the vessel has been issued in terms of section 44 of the Act which carry more evideniary weight than a receipt obtained during the pendency of the above suit in pursuance of the order quoted hereinabove passed by this Court in which the payment was without prejudice to the contention of the parties and lastly the plaintiff has challenged the veracity of the above receipt in his statement. Even I were to ignore the last reason, in my view the certificates issued by the Master of the vessel will have to be preferred over the above Ex.5/7. I would, therefore, hold that the defendants are liable to pay the total amount US $ 950 towards salary upto 5-3-1983 and since they had paid a sum of US $ 614 the balance payable by the defendant is US $ 330. As regards the other portion of the claim I am not in inclined to grant the same in view of my finding on issue No.3 above. The suit is therefore, partly decreed for a sum in Pak Rupees equivalent to US $ 336 at the rate on which the plaintiff calculated his claim in plaint.
15. There will be no order as to costs.
16. H.B.T./H-135/K