1. ' This suit has been filed by the plaintiffs for recovery of Rs,85,804.
2. ' Briefly the facts of the plaintiffs' case are that they had imported Black Pepper from Singapore in two consignments of 141 and 140 bags each under Bills of Lading dated 1-5-1975 and 7-6-1975 respectively, which were handed over to the carriers, the defendant No,1 at Singapore in good order and condition for carriage to and delivery at Karachi to the order of the shippers. The goods were shipped per vessel "Yamafuku Maru". The said consignments were also insured with the defendant No,4. The vessel arrived at Karachi on 28-6-1975 and began discharging its cargo immediately thereafter. However, it was revealed that out of the said two consignments, 42 and 23 bags respectively were received with contents found short. The plaintiffs' agent applied for survey to the Customs Authorities and to the defendant No,3 and accordingly a survey was carried out by Messrs Siraj D.S. Jamal. It is also claimed that the defendant No,2, who are local agents of the defendant No,1 had also appointed their surveyors and a joint survey was held. The result of the survey showed that a quantity of 4,414 lbs. And 2,941 lbs. Was short landed in respect of the two consignments and thus the plaintiffs claimed the loss amount of Rs,51,494 and Rs,34,310 respectively, which was not paid and, therefore, they have filed the present suit.
3. ' The defendants Nos.1 and 2 filed their written statements denying the claim of the plaintiffs. They mainly asserted that the loss was caused as the vessel had encountered rough sea and heavy weather. The defendants Nos.3 and 4 also filed their separate written statements while defendant No,5 did not file the written statement as admittedly no relief was sought against them by the plaintiffs and they were only pro forma party. On the above pleadings of the parties, the following issues were framed; What were the contents, condition, weight and value of the bags in question?
4. Whether the contents of 42 and 23 bags were found short? If so to what extent?
5. Whether the loss/shortage was caused due to the negligence of the defendant No, 1?
(4) Did the vessel experience rough and heavy weather during the voyage? If so, are the defendants Nos.1 and 2 liable for shortage/damage?
6. Whether the defendant No,4 are liable to compensate the plaintiffs under the Policy of Insurance?
7. Whether any notice of shortage or deficiency was given to K.P.T. Under Bye-Law No,43 of the Karachi Port Trust Act? If not, its effect?
8. Whether any notice under section 87 of the K.P.T. Act was served on defendant No,3 ? If not its effect?
9. Whether the defendant No,3 were negligent as bailees of the goods in performance of their duties?
10. Whether Al-Noor Traders lodged delivery documents and accepted delivery in full in same order and condition as landed from the ship?
11. Whether the survey allegedly held is binding on the parties?
12. Whether the plaintiffs suffered a loss of Rs,85,804? If so, from which defendants are they entitled to recover?
13. Are the defendant No,4 entitled to a third party decree under Rule 176, C.C.R. Against the defendants Nos.1 and 2?
14. What the decree should be?
15. ' The plaintiffs examined their employee Abdul Sattar, who produced a number of documents. The plaintiffs thereafter closed their side. When the matter came up for defendants' evidence Mr. Khalid Rehman, Advocate stated no instructions on behalf of the defendants Nos.1 and 2. The learned counsel for the plaintiffs has then made a statement in writing that under instructions from the plaintiffs he does not press the suit against defendants Nos.3 to 5 and would drop their names from the suit. The side of the defendants Nos.1 and 2 was recordingly closed. I have proceeded to hear the arguments of the learned counsel for the parties on the above issues. Only the plaintiffs' counsel made his submissions.
16. ISSUES Nos.1 to 3: These are connected issues. The plaintiffs in order to support their claim have produced the "receipt of packages delivery" from Karachi Port Trust as Exts.6/21 and 6/22. These exhibits show that in case of first consignment of 141 bags the survey of 19 bags was made on 15-7- 1975 while remaining 23 bags were surveyed on 23-7-1975. The second document also shows that in case of the second consignment the survey of 6 bags was made on 15-7-1986 and the survey of remaining 17 bags was made on 17-3-1975. The case of the plaintiffs is also corroborated by the report of surveyor Ext. 6/7. As against this, there is no evidence in rebutal from the defendants.
17. Accordingly, I answer these issues in favour of the plaintiffs holding that contents of 42 and 23 bags respectively were found short as claimed by the plaintiffs.
18. ISSUE No, 4: The burden to prove this issue is on the defendants Nos.1 and 2, who have not led any evidence. Accordingly, I answer these issues as not proved.
19. ISSUES Nos. 5 to 9 and 12: These issues pertain to defendants Nos.3 and 4 against whom the plaintiffs have not pressed their claim. Accordingly, these issues have become redundant and are answered as such.
20. ISSUE No,10: In para.8 of the written statement, the defendant No,2 has admitted that they had acceded to appointment of surveyor while the surveyor's report Ext. 6/7 shows that survey was carried jointly with the carriers' Surveyor Messrs Oceanic Surveyors. Accordingly, this issue is answered in affirmative to the effect that the survey report is binding on the parties.
21. ISSUE No 11: In view of my findings on issues Nos.1 to 3, this issue is also answered in affirmative.
22. ISSUE NO. 13: In view of the above findings, the suit of the plaintiffs is decreed as prayed.
23. ' Above are the reasons for the short order announced in Court today.