Suits Nos. 630/83, 127/86 and 768/88, involve more or less similar controversies. These are suits filed by the Trustees of the Port of Karachi, for recovery of moneys on the basis of an allegation that m.v. "Trauggut", a ship under Polish Flag, due to FORCE MAGEURE, on 18-6-1979, beached at Clifton "within the plaintiffs' area". It is said that the Ship in question is in an unserviceable state and not seaworthy. It is pleaded that the defendants who, allegedly, purchased the said stranded ship, being desirous to break it up and dispose of the scrap, applied to the plaintiffs, on 13-2-1980, for permission to dismantle the said ship under Section 30 of the Ports Act, 1908. On 19-4-1980, plaintiffs forwarded a draft agreement to the defendants for acceptance and execution within 15 days, so that the required permission could be granted. Such proposed agreement contemplated a bank guarantee for Rs.10,00,000, which later was sought to be reduced by the defendants and reduction to the tune of Rs.5,00,000 was allowed. The defendants, however, allegedly, without executing the said agreement, without due permission and without payment of the plaintiffs' charges and dues, started dismantling the ship in question whereupon the plaintiffs filed Suit No.52/81, for permanent injunction in the Court of the learned Vth Senior Civil Judge at Karachi. In such proceedings, which at the mis-cellaneous level, also went in appeal, the defendants were, ultimately, allowed to dismantle break the ship, subject to furnishing of security in the sum of Rs.1,00,000. The plaintiffs' case further is that in each of the present suits, involving claims for successive periods, the plaintiffs billed the defendants "on account of Hard Fees for using the holdings of the plaintiffs which the defendants are liable to pay under rules and regulations framed by the plaintiffs under the K.P.T. Act, 1886."
It is such Hard Fees, for various periods, in respect of the stranded Vessel, which is claimed by the plaintiffs in each suit.
2. In each of these suits, the defendants submitted applications under Order 7 Rule 11 C.P.C. for rejection of the plaint, on the ground of lack of cause of action. Such applications are numbered as CMA-6369/88 (Suit No. 630/83), CMA-6465/88 (Suit No. 127/86) and CMA-6979/88 (Suit No. 768/88). On 11-12-1988, it was, by consent of the learned counsel for the parties, ordered in Suit No. 768/88, that Suits Nos. 630/83 and 127/86, shall be placed alongwith that Suit. Subsequently, these cases, have come up together. It need hardly be pointed out that the claims in these suits pertain to the same stranded Vessel, the only difference in the controversy being with regard to various successive periods, and claims have, apparently, been filed, one after the other, with a view to avoid the bar of limitation.
3. Mr. Abbas Ahmed says that the only application under Order 7 Rule 11 C.P.C., which can be considered is the one which is pending in Suit No.768/88, because, in so far as Suit No. 630/83 is concerned, an order dated 20- 9-1988, was passed by S.Abdul Rehman, J., whereunder my learned brother had declined to reject the plaint, at that stage, and directed that relevant objections be incorporated in the Issues at the time of framing the same and be decided alongwith other Issues in the suit. On scrutiny, I further find that in Suit No. 127/86, the relative application under Order VII, Rule 11 C.P.C., stands struck off by an Order of the Registrar (0.S.) dated 16-2- 1989, on account of non-payment of process fees. However, it seems to me that in so far as the Order dated 20- 9-1988 in Suit No.630/83 is concerned, such was only a tentative order and no Issues have yet come to be framed in that case. Besides, my learned brother S.Abdul Rehman, J. Purposely, left relevant CMA-6396/88 undisposed of while passing the aforesaid orders. As such, this application is pending and may be considered, Even otherwise, question of rejection of the plaint under Order VII, Rule 11 C.P.C. has an element of priority, has to be disposed of at the earliest and can always be considered even Suo Motu, without a formal application, and, thus while in Suit No. 127/86 such an application lies struck off, on account of non-payment of costs, the matter under Order 7 Rule 11 C.P.C., can still be examined and, if a case for rejection of the plaint is made out under that provision, adequate orders can be passed. No limitations as to stage or time are relevant in that context. Such recourse, however, must always be preceded by due hearing of the parties and an order of rejection would, for obvious reasons, be bad if passed without according due hearing. Accordingly, having heard the learned counsel, I would consider each of these cases in relation to the bar, if any, occurring under Rule 11 of Order 7 C.P.C.
4. The contention on this score, from the side of the defendants is that the plaint, in each of these cases, suffers from want of cause of action; inasmuch as, there is no right vesting in the plaintiffs of the kind pleaded in the suit which could be violated, giving rise to any cause of action. It is urged that the relevant provisions for raising a claim of the kind in suit are covered by Sections 43, 43-A and 43-B of the Karachi Port Trust Act, 1886, wherein, and more particularly, under the last mentioned Section, such a charge or levy can be raised only if and when such charge or levy, with the prior sanction of the Central Government, is published in the official Gazette. It is an admitted position that pursuant to Section 43-B, a Notification dated 13-8-1979, was published in the Official Gazette which, in the various Tables appended to it, indicates the taxes, charges, fees, etc., which the plaintiffs would be entitled to claim in terms of the aforementioned provisions in the Act. One of these Tables is Table IX and in such Table is provided the "Hard" and "Foreshore" fees, inter alia, for shelter or breaking up of ships and the charge is to be made on the basis of per net registered ton per month or part thereof. In this Table, as in others, there are Notes which are part and parcel of such Table and in Note 6, thereof, it is provided that "areas of the Foreshore and Hard will be specifically demarcated and notified by the Deputy Conservator from time to time for the purposes", inter alia, of "shelter and breaking of vessels and crafts and these operations will only be permitted at such specifically notified demarcated areas". (Underlining is mine). It is the case of the defendants that no such areas of the "Foreshore" and "Hard" were demarcated and notified by the Deputy Conservator and/or, if notified, the area where the "TRAUGGUT" lies, having run aground, was not included and that being the position, the breaking and other activities appertaining to the stranded ship did not give rise to any cause for claim of fees in terms of Table IX aforesaid. It is next urged that the concept of "Fees" necessarily involves rendering of corresponding service(s) and the Clifton beach, where the ship drifted and got stuck has no such facilities to qualify for the claim of any "Fees". It is also contended that, in law, only the Conservator can raise a claim, if any, and plaintiffs have no such right. Lastly, bar of jurisdiction is claimed on the ground that separate forum and procedure for recovery of such dues is contemplated, spelling implied bar of jurisdiction of Civil Courts. As to the last two contentions which may be disposed of first, no provision, has, however, been referred attributing any exclusive right of the Conservator to raise claims of the kind incorporated in these suits nor is the right of K.P.T to register such-like claims shown to have been barred. It is true that where a statute creates new rights and also provides a special tribunal for their enforcement recourse to Civil Courts may, impliedly, be barred. The bar, however, will not operate even in such a case where the special tribunal, in its very nature, is a forum of summary remedy. All that the Karachi Port Trust Act, 1886, envisages is a form of recovery which is summary in nature and, therefore, the ground of implied bar advanced by the defendants is found to be un- sustainable. It is held that jurisdiction of civil Court in these matters, which, on principle is to be jealously guarded, remains un-impugned.
5. Now, it an undisputed proposition that, under Article 112 (1) (a) of Qanun-e-Shahadat, in so far as "Pakistan Laws" are concerned, a Court has to take judicial notice of the same. Likewise, Articles 89 and 92 of the Qanun lay down the rules regarding proof and presumptions relevant to public documents. Accordingly, I enquired from Mr. Abbas Ahmed for the plaintiffs, whether there was any follow up Notification as conforms to the requirements in Note 6 of Table IX, aforesaid. Today, in answer to the query, the learned counsel has filed a letter dated 22-5- 1989, from the plaintiffs. Such letter discloses that while there is no such Notification, there being a bar on ship breaking, "the question of demarcating the Hard and Foreshore area for breaking purposes could have been resolved" had the owners executed due agreement, which they "refused" to do. Mr. Abbas Ahmed contends that the referred Note 6, does not contemplate any Notification at all and all that is required is that the effect of demarcation etc., is notified by the Deputy Conservator. Learned counsel further contends that a Plaint can be rejected only on an assumption that whatever is stated therein is true for the purposes of Rule 11 of Order 7, C.P.C. For the proposition last mentioned, learned counsel refers to Seven Stars Goods Transport Co. v. Adm.
KMC (PLD 1976 Karachi 21), Mohd. Bashir and others v. Allahdad PLD 1980 Lah. 141), M/s. Zor Engineering Ltd. v. State Bank of Pakistan (PLD 1980 Lahore 534), and M/s. Shahnoor Studios v. W.Z. Studios (1980 CLC 433). All of these citations support what the learned counsel says and there is, in fact, no cavil in so far as the proposition advanced by him is concerned. But the matter does not end there, for in the plaint nowhere is it mentioned that the place where the ship is beached, in a stranded state, is an area in respect of which there is a due Notification, as contemplated in Section 43-B aforesaid. This is not to concede that if such pleas were incorporated in the plaint that circumstance, by itself, would have been enough to preclude the Court from examining the law and Notifications involved therein for a question of law, in its very nature, is capable of determination irrespective of what is pleaded and a notional admission of all facts, as pleaded in the plaint, for the purposes of an examination under Order 7 Rule 11 C.P.C. cannot be construed to include an admission as to any law. If that were so, the results would be preposterous. However, that there is, in fact, such a Notification under Section 43-B of the Act is a question which, on argument, stands concluded.
6. The next question, which pertains to adoption of all steps in respect of and in furtherance of the Notification, if any, if pleaded, may involve a mixed question of facts and law for no right may come to establish in the plaintiffs unless essential requirements and follow up steps have been taken and it is only if such a right comes to vest, that its violation would give rise to a cause of action. I Such matters, for obvious reasons, have to be pleaded.
This has reference to the argument advanced by Mr. Abbas Ahmed that as regards areas of "Hard" and "Foreshore" demarcated for levy of "Fees" claimed in these suits no further Notification was required and all that was needed was demarcation of such areas and notifying thereof by the Deputy Conservator. Even if mere putting the information across through a notice board was involved neither demarcation has been pleaded nor any such notifying, resulting in, apparent, lack of causes of action for the Suits.
7. As seen above, there is a Notification under Section 43-B of the Act of 1886, but then that Notification further contemplates, prima facie, another Notification in terms of Note 6 of Table IX and, admittedly, there is no such Notification. Now, what has to be seen is whether the word "notified" occurring in such Note as aforesaid, does not involve, as contended, a Notification, as such. The word "Notify" is one which has manifold connotations. It literally means "to make known, to declare; to give notice or information of whereas "the act of notifying the notice given; the paper containing the notice" is the equivalent of "Notification". It has consistently been held that the best rule for construction of statute law consists of plain reading of the provisions with regard to words used and ascribing their ordinary meanings within context so as to grasp the true intention of the legislation and where words are not defined dictionary can be referred for determining their meanings. If reference is needed a comparatively recent Full Bench decision of the Lahore High Court in the case of Ghulam Murtaza v. Md. Ilyas (PLD 1980 Lah. 495) may be cited. Applying these principles when used in the context of specified persons or group of persons, such word ("notify") may mean a mere notice or information but where no such persons or group of persons are specified and where something is done to be generally in respect of public or property, by an authority named, the word may have different implications. In such context the respository of power may also lend itself for scrutiny. Thus when he is a public functionary connected with the affairs of the Federation, Province, or a local authority what he notifies may not only take the form of a Notification but should, normally, also require publication in the Office Gazette.
8. As to what is, conventionally, meant by a Notification and what requirements are to be fulfilled in that context, Mr. M. Ashraf Bhatti, for the defendants, makes reference to two decisions of the Supreme Court of Pakistan, reported as Province of East Pakistan v. Hasan Askary (PLD 1971 S.C. 82), and Md. Suleman v. Abdul Ghani (PLD 1978 S.C. 190). In the first of these cases, on exhaustive examination of case-law, Wahiduddin Ahmed, J., who delivered the judgment of the Court, held that where a Notification requiring to be published in Official Gazette, was duly printed, in such Gazette mere printing thereof was not enough, for what was required was publication in manner usually required for publishing such documents, whereas in the second of these decisions, Chauhan, J., who spoke for the Court, repelling the contention that where a Notification did not expressly require to be published in the Official Gazette mere declaration, in the way of Notification, may suffice, laid down that what was intended was "a public declaration and not a private declaration in the secrecy of the Office of the Board of Revenue". In the later of these cases assistance was taken by the Hon'ble Judge from the definition of "Notification" occurring in Section 2 (41) of the West Pakistan General Clauses Act, VI of 1956, as the construction involved was of a provincial statute. Such recourse was made even though interpretation of the Punjab Pre-emption Act of 1913, an earlier statute was required. Here, too, the principle is invocable since the Karachi Port Trust Act, 1886, is a provincial legislation of the Bombay Presidency. Thus where a Notification under Bombay Act VI of 1886 requires further notifying that may imply issuance of a follow up Notification.
9. However, as has been said earlier, the essence of notifying lies in making known to those concerned and, in any view of the matter, neither was the requisite demarcation asserted nor any overt act of notifying pleaded in these cases. While I, respectfully, hold that dictum of Chauhan, J., applies to this case, the highest level at which the plaintiffs' case can be placed would be a requirement of at least a notice of sorts to all concerned. In point, in such context, would be the cases of the Queen v. Wolferstan (1893-2 Q.B 45) and Johnson v. Sargant and Sons (1918 1 K.B 101). In Wolferstan's case it was said that the relevant highway parish, having no Church, a highway rate was duly published if notice thereof was affixed in some public or conspicuous place or situation in the parish. Even this is not alleged to have been done here. In Johnson's case, on the other hand, an order under the Defence of the Realm Regulation was declared to be effective only when it became known to the parties. Not even this has happened in this case and nothing on this score has even been pleaded in these suits.
10. It would, therefore, seem that the right of the kind claimed by the plaintiffs has, manifestly, not come to vest in them, so far as that area is concerned where the ship in question stands stranded. It may well be that the plaintiffs, have general rights over the entire area of which the area, in dispute, may be a part but then the claim in suit is not based on such a right which would be, if so, give rise to a bare claim for damages for use and occupation of land belonging to the plaintiffs. Plainly, pursuit of such a right would be based on another set of grounds entirely distinct from those involved in this suit, rights which the plaintiffs enjoy under the general law of keeping their property and their space free and inviolable, any transgression thereof giving cause for damages and even eviction.
11. Now, defendants' plea regarding the implications of the levy in this case may be examined. It is contended that the charge, being in the nature of "fees", it necessarily involves rendition of due corresponding service in lieu thereof. Mr. Bhatti relies upon the cases reported as Abdul Majid v. Province of East Pakistan (PLD 1960 Dacca 502), Sudmindra T.S. v. Commissioner (AIR 1963 SC 966), Mohd. Ismail & Co. v. Chief Cotton Inspector (PLD 1966 SC 388) and Mahboob Yar Khan v. Municipal Committee (PLD 1975 Lah. 748) whereas Mr. Abbas Ahmad refers to Nagpur Kshatriya K.S. v. Corp. of Nagpur (AIR 1959 Born 112). The distinction between the concepts of "Fees" and "Taxes" is now well established. It is irrelevant by what name the levy is called; it is the substance thereof which has to be examined. While imposition of a "tax", being essentially a burden, has no elements of any QUID PRO QUO, charge of "fees" must be co-relative with rendition of some services which need neither be commensurate with an advantage to the person, charged nor necessarily uniform. Since elements of factual inquiry are necessary incidents of his question, plaint cannot be rejected outright on that ground.
12. In the last analysis, without due application and without specifying any particulars whatever, learned counsel sought amendments in these suits. My attention was drawn to the decision of the Supreme Court of Pakistan reported as Manager, J & K State Property v. Khuda Yar (PLD 1975 SC 678), where, inter alia, referring to the observations of Cornelius, CJ., in the case of Province of East Pakistan v. Sirajul Haq Patwari, it was declared that technicalities should not be allowed to stand in the way of justice unless they present a hurdle brushing aside which might lead to unsettlement and uncertainty of law. Citation is also made to the case of Wazir Begum v. Sardar Begum 1979 CLC 72 to urge that there is no universal rule barring consideration of a plea of amendment at a belated stage. The move for projected amendment does not impress me for several reasons.
These cases have been heard, over and over again, by me since the 30th of January, 1989. Plaintiffs were always at liberty to move for amendments during the intervening periods, if that was necessary and if that arose in the context of things but they did not do so. Even today a passing request, during the course of arguments was made without submitting due applications. An amendment to pleadings, under Order 6 Rule 17 C P C, is a serious matter and requires careful consideration. Proceedings on an application under Order 7 Rule 11 are still more serious. Normally, a move to amend the plaint should not be allowed to thwart such proceedings. Still, justice of a case may require, in appropriate matters, even such a course to be adopted but then the request should not only be real but earnest. Even though plaintiffs' request does not satisfy these requirements I would still have considered the same yet, as seen above, there is so demarcation and no information in terms of Note 6 to the Table and no amount of indulgence can cure that defect. While under Order 7 Rule 11 C P C only the plaint may be looked at for the purposes of Order 6 Rule 17 C.PC. namely, amendment of pleadings, all factors come up for examination and in the context of these cases, I am unable to pursuade myself that, short of fresh proceedings, any legitimate amendment would serve the purpose of the plaintiffs. As such, it is not possible for this Court to allow any hypothetical request at this belated stage.
13. Notwithstanding the above plaintiffs would not be prejudiced materially since in spite of failure to secure amendments they would be entitled to institute fresh proceedings on different grounds and bar of limitation may be met by invoking the provisions of Section 14 of the Limitation Act, for it is a bar, analogous to want of jurisdiction on the basis of which the plaints in these suits are being rejected. Reference, on the point, may, advantageously, be made to the decisions reported as Kilachand Devenchand v. M/s. Md. Allah Box (PLD 1962 Kar. 510), A.F.A. Kutubuddowla v. Md. Sadeq (PLD 1961 Decca 246) and Mst. Umerunnisa v. Faten Ali (PLD 1971 Kar. 553). This, though, I say, tentatively, because to apply Section 14 aforesaid would be a question, pre-eminently, in the domain of the Court which comes to be seized of such lis, if and when it materialises.
14. As a result, the plaint in each of these suits shall stand rejected with a right to the plaintiffs to file a fresh suit, either on the basis of entitlement to claim compensation for use and occupation of land belonging to them or on the basis of a Notification, in the broadest of its connotations, which may be issued now but as regards the latter course of action, a Notification cannot be retroactive and may not cover the claims for the periods passed and gone by.