1. ' The plaintiff has sought the following reliefs against the defendants Nos.3, 4 and 5:--
(a) To declare that the plaintiff is entitled to obtain the delivery of the consignment covering Bill of Lading No,081 dated 30-6-1977 issued by Spanship Achiffahri-sagenturen fur internationale Liniendienste GmbH for the Master as per Annexure 'B' without any let or hindrance by the defendants Nos.3, 4 and 5.
(b) An order in the nature of mandatory injunction directing the defendant No,4 to issue delivery order in favour of the plaintiff or its clearing agents against the tender of original Bill of Lading.
(c) Costs of the suit.
(d) Any other relief or reliefs that this Hon'ble Court deems the plaintiff entitled to.
2. ' Briefly stated the facts of the case are that the defendant No,1 is an exporter dealing in several merchandise including fluting paper. He had appointed the defendant No,2 to act as its local agent in Karachi for the purpose of sale and purchase of the articles in which the defendant No,1 used to deal. The defendant No,3 who is said to be the owner of motor vessel Sofia has its principal place of business in Greece. The defendant No,4 is the local agent of defendant No,3 and is also the agent of m.v. Sofia.
3. ' Pursuant to a contract between the plaintiff on the one hand and the defendants Nos.1 and 2 on the other the latter exported a consignment consisting of 91.090 K.Gs. Of fluting paper for the total C&F Karachi price of Date 18,582.36. The payment of the said goods was to be made by a letter of credit in terms of the said contract. The defendant No,1 had shipped the said consignment by m. v.
4. Sofia on 30-10-1977 as per Invoice No,19.136 dated 30-6-1977 and Bill of Lading No,081 dated 30-6- 1977 copies of which have been filed with the plaint as Annexures 'A' and 'B' respectively. The price agreed to be paid was inclusive of the freight payable for shipment from Hamburg to Karachi.
5. ' On 28-8-1977 the defendant No,4 addressed a circular letter to all consignees of cargo arrived by the said vessel m.v. Sofia and claimed that the owners, the defendant No,4 had withdrawn the charter party from defendant No,5 and that the defendant No,3 was entitled to receive an additional freight at the rate of Rs,280 per ton. A copy of such circular has been filed with the plaint as Annexure 'C'.
6. ' Thereafter, the plaintiff, tendered the original Bill of Lading dated 30-6-1977 to the defendant No,4 requiring it to issue a delivery order in respect of the consignment represented by the said Bill of Lading but the defendant No,4 refused to do so until the plaintiff unconditionally paid a sum of Rs,25,480 to the said defendant. The case of the plaintiff is that the defendant No,4 was not justified to demand additional freight from the plaintiff as after signing of the Bill of Lading on behalf of the Master, the defendants Nos.3, 4 and 5 were estopped from claiming any sum in addition to the freight which had already been paid by the defendant No,1 and hence the suit.
7. ' Written statements were filed only on behalf of the defendants Nos.2, 3 and 4 whereby their liability to the plaintiff was disputed. It is also pertinent to point out that as no written statement was filed on behalf of the defendants Nos.1 and 5 the suit against them was ordered to proceed ex parte vide order of this Court dated 10-5-1980.
8. Be that as it may, but on the basis of the respective pleadings of the parties the following issues were framed by the Court:--
(1) Whether the defendant No,3 had withdrawn a charter party from defendant No,5, if so, what is the effect?
(2) Whether the defendants Nos.3 and 4 hankie a lien over the goods shipped under the Bill of Lading in question which incorporated the terms of charter party?
(3) Whether the plaintiffs are liable to pay freight at the rate of Rs,280 per ton to defendant No,4 according to circular Annexure 'C'?
(4) Whether the defendant No,3 is claiming freight and other charges at actuals as alleged in the plaint in paragraph 15, if so, what is the effect?
(5) Whether the terms of the charter party and Bill of Lading binding are on the plaintiff?
(6) What should the decree be?
9. Today when the case was fixed for recording of evidence, the plaintiffs examined Qurban Hussain, one of their Directors. However, no evidence was led on behalf of the defendants Nos.2, 3 and 4. So far as the defendant No,2 is concerned, it may be pointed out that no relief has been sought by the plaintiff against the said defendant. Furthermore, Mr. Mohsin Tayabaly, learned counsel for the plaintiff has given up any claim against the said defendant. However, decree has been sought by the plaintiff only against the defendants No,3 and 4. So far as defendants Nos.3 and 4 are concerned, although, Mr. A.H. Mirza who was holding brief for Mr. Liaquat Merchant, their learned Advocate, did appear in the Court but he has pleaded no instructions from the said defendants. It may also be pointed out that none else was present on behalf of the defendants. Consequently, after Mr. Mohsin Tayabaly closed the plaintiff's case, the case of the defendants was also closed.
10. ' As far as the issues framed by the Court are concerned, it has been pointed out by Mr: Mohsin Tayabaly and rightly so that the burden of proof in this regard is entirely on the defendants Nos.3 and 4. Since no evidence has been produced on behalf of the said defendants, the defendants have failed to discharge such burden. Under the circumstances none of the issues raised by the said defendants can be answered in the affirmative. On the other hand, the case of the plaintiff appears to be fully proved by the evidence of their witness Qurban Hussain.
11. ' In view of the circumstances just enumerated by me although there should be no difficulty in decreeing the plaintiff's suit in terms of the prayer made in the plaint but before the same is done it is pertinent to point out that the second relief claimed by the plaintiff as per para. (b) of the prayer clause was earlier granted in effect to the plaintiff vide order of this Court dated 11-10-1977 as the plaintiff was permitted to receive delivery of the goods against furnishing of a bank guarantee in the sum of Rs,25,400 which it did. Consequently, the relief claimed by the plaintiff as per clause (b) of the prayer clause has already been granted to it. So far as the remaining relief sought by the plaintiff is concerned, the plaintiff has asked for a declaration to the effect that it is entitled to obtain the delivery of the consignment in question against the Bill of Lading dated 30-6-1977. In view of the circumstances of the case, the plaintiff, in my opinion, is entitled to get such a relief from the Court. Consequently, declaration as prayed for in para (a) of the pray of clause is granted in favour of the plaintiff. Since, as pointed out earlier, the plaintiff has already got the consequential relief from the Court vide the interim order dated 11-10-1977, suffice it to say that the bank guarantee furnished by the plaintiff stands discharged and the Nazir is directed to treat the said guarantee as cancelled. The plaintiff is also awarded costs of the suit against the defendants No,3 and 4. The suit against the defendants No,1, 2 and 5 is dismissed as no relief has been claimed against them.