1. ' This appeal arises from the judgment and decree passed by the learned IVth Additional District Judge, Karachi (South), confirming the judgment and decree of the trial Court whereby respondent's suit against the appellant was decreed for Rs,35,982. The brief facts are that the respondent imported 383 reels of mechanical printing papers in sizes of 2 x 17" and 2 x 27" weighing 81,258 Kg. At a total cost of US $ 44, 691.90 which was paid through a letter of credit dated 3-9-1974 established by Habib Bank Ltd. The goods were shipped on board `Gwardia Ludowa' under bill of lading No,2642 dated 24-5-1974 under marks and numbers mentioned therein. The vessel arrived at Karachi on or about 2511-1984 and discharged the cargo in the custody of Karachi Port Trust. The appellant was appointed by the respondent as agent for taking delivery and clear the goods from the Customs and the Port Trust. In the first week of January, 1975 the appellant confirmed that the consignment has been received and stored in his godown under lien of Habib Bank Ltd. The respondent took piecemeal delivery of the consignment from the appellant between 31-12-1974 to 21-12-1975 on various dated under delivery orders issued by the appellant. The respondent claimed that till that date he received cargo weighing 68,380 Kgs. It was further alleged that the balance weighing 7.436 Kgs. Were lying in the appellant's godown and thus there was a short delivery of 5,442. Kgs. As confirmed by survey report of Moin and Co. It was alleged that appellant had applied without knowledge and consent of the respondent to Pak Ocean Ltd. Co., the carriers, for amendment of the number of the consignment as a result of which the carriers intimated the KPT to amend the marks of the consignment to AE 2042-A-14595 Karachi made in Norway instead of AE 242-B-14595 Karachi made in Norway with running numbers mentioned therein. The respondent thus claimed a damage of Rs,35,982 from the appellant which was decreed.
2. ' The entire claim of the respondent rests on ascertaining the weight of the cargo bacause it is only on this basis that damage has been claimed. The learned counsel for the appellant has contended that from the evidence on record neither the weight of goods shipped and discharged at Karachi has been proved nor the weight of the goods delivery of which was accepted by the respondent has been established. It has further been contended that the finding is not substantiated by evidence on record and it is based on inadmissible documents.
3. ' The significant aspect of the case is that the bill of lading has not been produced by any party. A bill of lading is the initial document which describes the nature, number weight, if mentioned, of the cargo as delivered by the shipper for carriage. In the absence of the bill of lading, particulars of the cargo can be acsertained from the invoice, banking documents, bill of entry and the record of KPT or survey report. Some of these documents are available on record and I have only to examine how far these documents established that the respondent had imported cargo weighing 81,258 Kgs.
4. And that the consignment of this weight was not delivered to the respondent. The appellant has produced the invoice which mentions the weight of the cargo but Mr. Bangash the learned counsel has contended that at the time of its production admissibility was objected and it was placed on record subject to proof. As no witness from the Company which had issued it has been examined it is not admissible in evidence. The contention of the learned counsel seems to be correct. As objection to its admissibility had been taken at the earliest stage, the appellant should have proved this document which it has failed to do. Therefore, this document cannot be taken into consideration.
5. ' The learned counsel for the respondent has referred to the bill of entry which mentions the numbers, marks, number of reels and also their weight. Bill of entry is prepared by the clearing agent and in this case it was prepared by the appellant. It mentions the weight as 81.258 m.t.
6. According to Mr. Bangash the entry in this document was made from the invoice supplied by the respondent and as the invoice has not been proved this entry cannot be accepted. I am not inclined to accept this contention because if the appellant had any doubt about the correctness of the weight and particulars mentioned in the invoice, he should have refused to mention it in the bill of entry which was prepared by him. He could have ignored it and only mentioned the marks and numbers as stated in the bill of entry and the number of reels shipped. Besides this the letter of credit has also been produced from which the weight of the cargo can be ascertained. The document was accepted subject to objection and no one from Habib Bank Ltd., was produced to prove it.
7. ' In the absence of the bill of lading which mentions the weight also the entries in the bill of entry should be taken as correct and binding. From the evidence it is clear that the goods were not cleared on weighment basis. It is also established from the evidence that the respondent cleared the goods and took delivery from the appellant without any weighment. The survey report of Moin and Co. Has been relied upon the respondent, but this survey report so far as weight is concerned can hardly be treated to be an authentic document. The surveyor has admitted that actual weighment was not carried out and only weight as mentioned on the reels was noted down. The surveyor who had actually carried out the survey had prepared notes but these notes were neither produced nor referred at the time of evidence. Mr. Bangash has contended that their survey was ex parte and without any notice to the appellant therefore, it is not binding. It seems that the surveyor had examined part of the cargo in the appellant's godown and part of it in the respondent's godown. So far the examination in appellant's godown is concerned it must have been with his knowledge. The surveyor carried out at the respondent's godown was without notice to the appellant. In view of the aforestated discrepancies this survey report cannot be treated as an authentic document to prove the weight of the cargo delivered to the responderit.
8. ' The appellant was appointed agent by the respondent for clearance of the goods. It seems that the goods with marks and numbers as mentioned in the bill of lading were not available at the port but similar goods with different marks and numbers were available. In these circumstances the appellant applied for amendment in the delivery order for obtaining delivery of the goods bearing different marks and numbers or nil marks. It has commonly been observed that often cargo is shipped with wrong marks and numbers or the marks and numbers are obliterated. In such circumstances as delivery cannot be given according to marks and numbers the consignee approach to accept delivery according to the specifications without marks and numbers. The identity of the goods is therefore ascertained from the description mentioned in the shipping documents and not merely by marks and numbers. It thus becomes necessary that proper care should be taken to identify the goods, so that wrong goods are not taken from the custody of the Karachi Port Trust. In such situation heavy responsibility is cast upon the clearing agent to ensure that proper goods are cleared. It therefore becomes necessary that while delivery of goods is accepted by description and not by original marks each and every particular should be examined and if the weight has been mentioned in the bill of lading, it should be ascertained and ensured that the goods which are identical are also of the same weight. Any negligence in this direction is likely to cause damage to the consignee. In this case admittedly the goods with marks and numbers were not available and therefore the appellant without the knowledge and the consent of the respondent got the delivery order amended and obtained the goods of different marks or with nil marks. The respondent started taking delivery of those goods from the appellant from time to time. The respondent has not claimed that the goods delivered to him were of different quality or nature from the goods which were imported. The only dispute is about their weight. From the survey report of Moin and Company it is clear that delivery of 337 reels has been taken by the respondent without any objection. The same were not weighed and the survey report is also not authentic with regard to the weight of the reels delivery of which was accepted without objection.
9. The remaining reels were in the custody of the appellant and therefore as the survey was conducted in his godown he cannot deny that he had no knowledge or notice of such survey. But even the weight of these reels as mentioned in the survey report is based on the weight printed on it. No actual weighment of these reels was carried out. Be that as it may, the weight of the reels which were lying in the godown of the appellant was not correctly ascertained. In the absence of authentic evidence with regard to the weight of the goods delivered to the respondent and weight of goods which remained undelivered, it is difficult to assess what loss was caused to the respondent. No doubt the appellant has been negligent in performance of his duty but mere negligence is not sufficient to burden him with damages unless it is proved specifically and with clear evidence. As the weight of the goods has not been ascertained at any stage the damage suffered by the appellant has not been proved.
10. ' Mr. Dewan Bashir Ahmed, the learned counsel for the respondent contended that as there is a concurrent finding, this appeal is not competent. Second appeal will lie where the decision is contrary to law or there is substantial error in the procedure provided by law which may possibly have produced an error or defect in the decision of the case on merits. Where the decision is not based on any evidence or is based on irrelevant or inadmissible evidence the Court commits error of law. PLD 1955 Lah. 420, AIR 1937 Sind 36, AIR 1923 Lah 630. In second appeal even finding of fact can be set aside if it is based on inadmissible evidence AIR 1940 Lah.
11. 245.
12. ' This R.SA. Arises from the judgment and decree dated 2-7-1989 of the Judgments and decrees passed by the Courts below are set aside. The parties to bear their cost.
13. The appeal is allowed.