1. ' This is an application under Order I, Rule 10(2) read with section 151, C.P.C. Filed by the counsel for Defendant Nos. 3 and 4, who are Charterers with prayer for direction from the Court for striking off their names from the plaint, on the ground that in the Bill of Lading there is a Demise clause according to which contract is between shipper/consignee and the ship owners, who alone were liable. It is further stated in the application that at the time of shipment, Combined Master Certificate was issued according to which Master and Defendant No, 1 accepted liability for any contamination with lead of the suit consignment and in this context Demise clause specifically states that liability would be that of ship owners and the Master.
2. ' In this context stand taken by Defendant No, 2, who is owner of the vessel is that the vessel was given on seven years time charter to Defendant No, 3 and services of Master and the crew were placed at their disposal by the owners. The defendant No, 4 had full and effective control over the vessel which was employed by them for trading and they were actually and effectively in control of the management of the vessel including all loading and un-loading operations personally supervised by the port captain employed by them. Further defendant No, 3 concluded a Voyage Charter party with the shippers and pursuant thereto issued the relevant bills of lading, as such contract of carriage was between defendant No, 4 and shippers of the suit consignment. It was further averred in the said Counter-Affidavit filed on behalf of defendant No, 2 that Demise clause is beyond scope of Voyage Charter Party and not in accordance with the format of Bill of Lading which is violative of clause 24 thereof.
3. ' Stand is taken in the Counter-Affidavit filed by the Plaintiff in the Suit that contract of carriage is between Plaintiff and owner.
4. ' Perusal of contents of paragraphs 7 and 8 of Application Under Order 1 Rule 10(2) C.P.C. Shows that assertion was made that Plaintiffs had not specifically claimed against defendants 3 and 4' in the plaint at the time of arrest of vessel with a view to seeking vessels' release and contention was raised that they (defendants 3 and 4) were carriers and not the ship owners as such suit in rem was not maintainable. In paragraph 8 of the said application stand is taken that this contention of defendants 3 and 4 as urged in Counter-Affidavits and written statements was in fact erroneous and was resorted to merely because defendants 3 and 4 were not aware of full facts and were overly concerned about the release of the vessel since the ship-owners were not forthcoming with security for release of the vessel and subsequently when more details became available it transpired that the contract of carriage evidenced by Bill of Lading was in fact between the ship- owners i.e, defendant No, 2 and Shipper/consignee i.e, plaintiff, pursuant whereto the Master had issued "Combined Master's Certificate". In the circumstances, it was claimed in the said application made by his client were in fact admissions on the points of law which are not to be considered as admissions of facts at all and further Demise clause in the Bill of Lading saves his client from liability.
5. ' On the other hand, Mr. Kazmi, advocate on behalf of plaintiff/consignee in Suit argued that in this suit 516/1986 written statement is filed by defendant Nos. 3 and 4 in which it is claimed that they are proper parties. It is further stated in the written statement that defendant No, 3 are time charterers of defendant No, 1 vessel, whereas defendant No, 4 are Manager of defendant No, 3.
6. Furthermore, in three other suits in which defendants Nos. 3 and 4 were not impleaded, applications were filed by them and orders of the Court were obtained to join them as defendants and they filed written statements in which same plea as stated above was taken. These defendants did not apply for filing amended written statements or made applications that their written statements be struck off after they changed their stand. It is further stated by Mr. Kazmi that in the suit issues have been framed. In fact in all the Suits issues have been framed and one common issue in all the suits is whether defendant Nos. 1 and 2 are liable on the contract of carriage or otherwise. In the present Suit 516 of 1986 even evidence is recorded and application was filed on behalf of defendant Nos. 3 and 4 in the suit for examination of certain witnesses in the Court. When the Court asked as to on what point the evidence is to be laid, Mr. Osmani made statement that it was on the point that cargo as shipped in good condition. Application was dismissed and Mr. Osmani made another application that he may be allowed to withdraw his previous statement. He was not allowed to do so. Mr. Kazmi further pointed out that defendants Nos. 3 and 4 filed Admiralty Suit No, 103 of 1987 claiming damages from consignees.
7. ' It was submitted by Mr. Muhammad Naeem, advocate for defendant Nos. 1 and 2 (owners) that in suit Nos. 516 and 539 of 1986 Defendant No, 3 was impleaded as party and in remaining 6 suits he applied to be impleaded as party. Application under consideration in paragraph 4 Demise clause in the Bill of Lading is reproduced which according to Mr. Naeem is incomplete unless it is read in full alongwith the remaining portion which provides as stated in paragraph 8 of Counter-Affidavit of the owners as under:-- "If however, it shall be adjudged that any other than the said shipowner or the demise charterer is carrier or bailee of the said shipment or under any responsibility with respect thereto, all limitations of or exonerations from liability and all defences provided by law or by the terms of the contract of carriage shall be available to such other."
8. ' It is further submitted by Mr. Muhammad Naeem that it is for the Court to read and interpret Demise clause and determine as to who is the carrier. Mr. Tariq Hussain, advocate for the Plaintiff in Suit No, 701 of 1986 has adopted the arguments of M/s. Kazmi and Muhammad Naeem, advocates.
9. ' In the circumstances and for the facts and reasons stated above, I am of the view that this controversy can best be resolved at the time of final hearing of the suit after evaluation is made of evidence which is brought on the record and decision is given on the relevant issue. I, therefore, dismiss application under Order 1 Rule 10(2) C.P.C., filed by Defendant Nos. 3 and 4 in the suit.
2. C.M.A. No, 2085 of 1989.
10. ' This is an application under Rule 176 of Sindh Chief Court Rules (O.S.) (Owners) filed by defendants Nos. 1 and 2 with prayer for passing of alternate decree with cost and interest in favour of the said Defendants by way of contribution and indemnity against the Defendant No, 3 (Charterers) to the extent of any decree that may be passed against these Defendants. In affidavit in support of the application stand is taken that Defendant No, 3 concluded a Voyage Charter Party with the shippers and pursuant thereto issued relevant Bills of Lading providing inter alia that the contract of carriage evidenced by the said Bills of Lading was to take effect subject to the terms and conditions of the Charter Party. Defendant No, 3 having admittedly acted as the carriers of the goods are now approbating and reprobating at the same time and in that context after making admissions in the pleadings are now seeking to have their names struck off on the ground that they did not act in that capacity. It is further submitted that vessel being on long term time charter with Defendant No, 3, they are responsible for the alleged contamination of the cargo resulting from the nonobservance of the terms and conditions of the voyage charter party.
11. ' In the Counter-Affidavit filed against this application by defendant No, 3, stand is taken that Suit is in rem and concept of alternate decree is foreign to such suits and procedural law applicable to suits filed in admiralty jurisdiction does not provide for alternate decree. Further it is averred that defendant Nos. 1 and 2 are not entitled to any indemnity or contribution from defendant Nos. 3 and 4 as the parties have no contractual relationship with each other.
12. ' In the Sindh Chief Court Rules (O.S.) from Rule 729 to 775 procedure to be followed in such suits in the Courts of admiralty is specified. Rule 774 further clearly provides that when rules are silent on any particular point of procedure then such point shall be regulated by the rules and practice of the Court in suits brought in it in the exercise of its original civil jurisdiction. In the circumstances, the application as made appears to be competent and is allowed.