1. These two civil revision applications may be disposed of by a common judgment because they raise the identical question and arise from suit instituted by respondent No.1.
2. The facts leading to the filing of the above revisions are that the respondent No.1 Filed suit being Suit No.1552 of 1975 for recovery of Rs.18,000. A consignment of 40 bags cardamom was entrusted by the shipper at the port of Dar-es-Salarn to the petitioner through their agents at the port of shipment for the purpose of carriage on board the vessel s.s. "KARANJA" deliverable to the consignees M/s. M.Y. Khan & Co., at Karachi who are plaintiff/respondent No.l. The defendant No.1/petitioner having received the said consignment in good order and condition, issued their Bill of Lading No.15 incorporating therein the marks and numbers and the description of the consignmentantion charged freight in foreign exchange in advance consideration of the carriage of the consignment under the contract, of affreighment the defendant No.1/petitioners were duly bound to load, stow, carry, discharge and deliver the said consignment, to the consignee at Karachi and/or their clearing agents exactly in the same quantity and the good order and condition in which it was shipped. The said consignment was insured with the defendant No.3/respondent No.2 under their Insurance Policy No.VIA/KM/4400/9/7-3 dated 12-9-1973 on the terms and conditions against the perils of the sea and for the sum insured as stated in the said insurance policy. The vessel "KARANJA" arrived at the Karachi port on or about 8-9-1973 and subsequently discharged the consignment under Bill of Lading No.15 and under Index No.27. The respondent No.1 after completing all the formalities obtained the delivery order in lieu of original Bill of Lading.
3. It is the case of the respondent No.1 that out of the consignment of 40 bag the clearing agents of respondent were delivered 31 bags only and the remaining 9 bags were not available fur delivery in respect of which letters of enquiry were addressed to the petitioner and the KPT authorities. The latter 'through their shordanded report dated 9-1-1974 confirmed that 9 bags out of the consignment of 40 bags appeared to have been shortlanded at Karachi Pon under Index No.27 and the same would be shown in the outturn report of the Vessel issued by the KFIT to the defendant No.2/petitioner No.2 as per rules and regulations of KPT. The respondent No.1 lodged claims with the petitioner No.2 and the petitioner No.2 informed the respondent NoYs clearing agents, that their 9 bags had been correctly landed from the Vessel KARANJA and the same were lying uncleared without marks in shed No.2, West Wharf, KPT, r, . Karachi. The clearing agents of the respondent No.1 accordingly inspected the consignment of 9 bags allegeldy offered by the petitioner No.2 against the required quantity of 9 bags of the respondent No.1's consignment and it was found that the same did not pertain to the particulars of the consignment imported by the respondent No.l. In this connection protracted correspondence was exchanged between the clearing agents of the respondent No.1 and the petitioner No.2 who insisted that the 9 bags which were short declared by the KPT were in fact discharged under art marks and lying as Assess cargo in the KPT premises. It is the further case of the respondent No.1 that the petitioner No.2 on 7-6-1975 for the first time issued such movement if the delivery order and further requested the surveyors to, survey the consigmnent alleged to be lying under nil mark and alleged to be belonging to 'the respondent No.1's consignment. This was further confirmed by the petitioner No.2 through their letter dated 12- 6-1975 addressed to the clearing agents of the respondent No.l. A legal notice dated 20-6-1975 was served on the petitioners wherein the compensation for the loss suffered by the respondent No.1 on account of the non-delivery of the consignment was claimed but none of the defendants compensated the respondent No.1 for the loss suffered by them. The petitioner No.2 through their letter dated 25-&1975 repudiated their liability in categorical terms for the loss suffered by the respondent No.l. In the facts and circumstances, the respondent No.1 instituted the above suit on 1- 7-1975. The petitioners and respondent No.3 contested the suit. The petitioners contended that the suit was barred by time. On the pleadings of the parties, the trial Court framed the following issues:-- "(1)Whether the suit is time-barred?
4. (2)Were not the particulars mentioned in the Bill of Lading those declared by the shippers? If so, to what effect?
5. (3)Whether defendant No.2 are personally liable to make good the loss suffered by the plaintiff?
6. (4)Whether the consignment in suit was lying in the custody of Karachi Port Trust for over 3 months? If so, what is its effect?
7. (5)Whether 9 bags were excess landed under nil marks? If so, what is its effect?
8. (6)Whether the consignees/plaintiff were justified in refusing to accept delivery of 9 bags alleged to have excess landed under nil marks?
9. (7)Whether 9 bags were short-landed, as alleged?
10. (8)Whether the value of the said excess landed 9 bags is Rs.18,000 as alleged?
11. (9)To what compensation, if any, are the plaintiffs entitled?
(10) Did the plaintiffs commit breach of the terms and conditions and/or warranties of the policy* of insurance? If so, what is the effect?
(11) Is the suit barred by limitation against defendants 1, 2 and 3?
(12) Reliefs?"
12. The parties led evidence in support of their respective contentions. The trial Court decided issues 1 and 11 together. The trial Court on assessment of the evidence on the record came to the conclusion that the suit was barred by time. In that view of the matter, he did not decide the remaining issues'. He dismissed the suit vide judgment dated 31-3-1985. Against the judgment and derriere of the Trial Court, the respondent No.1 went in appeal before the. District Judge, Karachi which was ultimately heard by , the 1st Additional District Judge, Karachi South.
13. The Additional District Judge on re-assessment of the evidence came to the conclusion that the cause of action continued till riling of the suit. According to him, suit could have been filed within the period of three years --and not within a year. In that view of the matter, he set aside the judgment and decree of the trial Court and remanded the suit to the trial Court for giving findings on the remaining issues. The petitioners being aggrieved filed above Civil Revision No.194 of 1987.
14. On remand, the trial Court on assessment held that the consignee for the value cannot be denied the benefit of Bill of Lading Ex. 11 issued by the petitioners. Issues 4, 5, 6 and 7 were discussed together. He came to the conclusion that shortimiding of 9 Gap was proved by the respondent No.1 and the petitioners failed to prove that 9 bags landed under the excess cargo under nil marb were in conformity with the contents of 31 bags delivered to the 'consignee. He found that petitioners were liable for the loss of 9 bags which were in fact not delivered to the respondent No.l. On issue No.3 he came to the conclusion that section 55 of the Customs Act prescribes the liability of the local agent once such liability against the principal carrier is established. On issue No.8, he held that the compensation of Rs-18,000 as claimed by the respondent No.1 stands proved. On issue No.10, he came to the conclusion that the respondent No.2 did not prove that the respondent No.1 committed any breach of terms and conditions of the insurance policy. In that view of the matter, the suit was decreed as prayed. Against the judgment and decree passed by the III rd Senior Civil Judge, Karachi, the petitioners filed Civil Appeal No.139 of 1987 which was ultimately heard by the 1st Additional District Judge, Karachi South. .
15. The learned Additional District Judge on re-assessment of the evidence on the record affirmed the findings of the learned Senior Civil Judge on issues Nos. 2, 3,"4, 5, 6, 7, 8, 9 and 10 and dismissed the appeal. Hence the petitioners filed the above Civil Revision No. 22 of 1991.
16. I have heard Mr.Lbrahim Pishori, learned counsel appearing for the petitioners in support of the revision petitions and Mr. Ghula n Mohammad Ibrahim, learned counsel appearing for the respondent No.i, Mr. Jamal Khan, learned counsel appearing for respondent No.2 remaindered absent. I have perused the judgments of the Courts below and have gone thoroughly through the R & P of the case.
17. The learned trial Court on assessm ent of the evidence came to the conclusion that 3~ bags were delivered on 9-1-1974 and 9 bags were not delivered to the respondent No.1 and in accordance with Article 31 of the Limitation Act, the respondent No.1 could have filed the suit within a period of one year when the goods ought to have been delivered but the suit was filed on 1-7-1975. The suit was hopelessly barred by time.
18. Before the Appellate Court it was contended that the suit was barred under Article 31 of the Limitation Act.
19. The learned Appellate Court found that the cause of action arose to the respondent No.1 on 8-9- 1973 and on 12-9-1973 and continued till filing of the suit. According to the learned Appellate Court such a suit could have been filed by the plaintiff/respondent No.1 within the period of three years and not within a year as observed by the learned trial Judge.
20. Mr. Ibrahim Pishori, learned counsel for the petitioners challenged the correctness of the decision of the Appellate Court and contended that this being a case of short delivery, it is governed by Article 31 of the Limitation Act and limitation has to run from 9-1-1974 when the short-landing certificate was issued by the KPT, the date of non-delivery of 9 packages and as such the last date of riling the suit was 9-1-1975 and the suit having been filed on 1-7-1975, it was clearly barred by the law of limitation.
21. At the outset I must say that the learned appellate Court has committed error of law and error of record also. No doubt it is settled by authorities that in cases governed by Article 30 the onus lies on the carriers to prove that the. Loss occurred beyond one year from the date of the suit so as to non-suit the plaintiff, but. It is equally settled by authorities that Article 31 applies to case of short delivery as in this case. He was of the opinion that such a suit could have been filed by the plaintiff within the period of three years. Here there is a complete error of law. The suit is filed on 1-7-1975 and therefore it was beyond one year. Thus, the suit is clearly barred by limitation.
22. According to the plaintiff a consignment of 40 bags was consigned to them under Bill of Lading No.15. The vessel s.s."KARANJA" arrived at Karachi Port on or about 8-9-1973 and subsequently discharged the cargo. Out of the consignment of 40 bags the clearing agents of the plaintiff/respondcnt No.1 delivered 31 bags only and the rcmaining,9 bags were not available for delivery in respect of which letters of enquiry were addressed to the petitioners and the KPT authorities. The KPT through their short-landing certificate dated 9-1-1974 confirmed that 9 bags appeared to have been short-landed at Karachi Port under Index No.27. The case of the defendants 1 and 2/petitioncrs, however, was that this being a case of non-delivery of the 9 bags, it was.
23. Governed by Article 31 of the Limitation Act. The packages alleged to have been short-landed were in fact, lying under nil marks in the KPT shed and the same should be cleared by the consignees and/or their clearing agents. Article 31 of the Limitation Act runs thus:--
31. Against a carrier for compensation for non- delivery of or delay in delivering goods.One year When the goods ought to be delivered.
24. Article 31 thus provides that a suit for compensation for non-delivery of, or delay in delivering the goods, has to be filed within one year from the date "when the goods ought to have been delivered". It is well settled by authorities that to such cases of non-delivery Article 31 applies and the period of limitation has been computed from the date where a portion of the consignment was delivered as that is the date on which the remaining goods .Ought to have been delivered" within the meaning of that Article.
25. The words "when the goods ought to be delivered" within the meaning of Article 31 can only mean the reasonable time taken in the carriage of goods from the place of despatch to the place of destination. There may be no difficulty in finding out reasonable time where bulk of goods have been delivered and only a part has not been deliverud, for in such a case, in the absence of the special circumstances, it should be easy to see that "reasonable time is that within which the bulk of the goods have been delivered".
26. In a case reported in PLD 1956 (W.P.) Lahore 1039, a Division Bench of Lahore High Court held that "the term under Article 137 of the Limitation Act runs from the definite refusal of declaration of inability to deliver the goods made by the defendant".
27. In Federation of Pakistan (Owner of North Western Railway) v. Messrs Abdul Rehman Abdul Ghani (PLD 1958 (W.P.) Karachi 130), a learned Single Judge of erstwhile High Court of West Pakistan, Karachi Bench held that "according to Article'31, time runs from the date the goods ought to be delivered". In that case major portion of consignment had actually arrived on or before 1-8-1950 when the delivery was actually taken, and it was found on that day that one bag had not arrived and hence it became a case of short--delivery. The suit was filed on 15-12-1951. It was held that the suit was barred by time.
28. In Abdul Chowdhury v. The Muhammadi Steamship Company Ltd and another PLD 1901 SC _W, it was held as follows:-- "In accordance with clause (6) of Article III of Schedule to the Carriage of Goods by Sea Act, 1.925 a suit is to be filed within a year of the 'date when the goods should have been delivered'. These words obviously have reference to the time when it was the obligation of the carrier, in accordance with the terms of his contract, to deliver the goods, and this time has to be determined in accordance with the provisions of the Contract Act. A contract for carriage of goods being. Only a contract is subject to the provisions of the Contract Act except to the extent to 'which there may exist some --special provision. In accordance with the Contract Act every contract is to be performed on the date which has been agreed to by the parties and, in the absence of such a date, within a reasonable time."
29. Again it was held:-- "The section will apply to a case where there is originally a date fixed for the performance as also to a case where no date has been fixed and the contract is to be performed within a reasonable time.
30. Therefore, in all cases of carriage of goods by sea the terininus a quo for limitation will be affected, if the promisee agrees to have performance at a date later than that originally fixed or later than that which constituted a reasonable time."
31. It was further held as under:-- "Article 31 of the Limitation Act is in almost identical terms with clause (6) in question and there is no reason to place on this clause an interpretation different from that which has been placed on Article 31. There arc a large number of decisions under Article 31 wherein it has been held that limitation starts only when the Railway authority either refuses or expresses its inability, to give delivery.
32. If a party continues to represent that it is prepared to perform a contract into which it has entered, after the expiry of the period fixed for performance, it cannot contend that it was not bound to perform the contract, in the absence of a legal bar which deprives the undertaking of all legal effect. There is nothing in the Carriage of Goods by Sea Act which prevents the parties from making fresh binding agreements. It would be quite open to the carrier in a case, for instance, where the goods could not be found, to undertake to trace the goods and deliver them at such future date as may be agreed upon. Clause (6) is not intended to force the parties to come to Court. They can adjust their disputes in any manner they like and they can make fresh agreement in any difficult situation." . In Holland Bengal Burmahline v. Dawood Corporation Ltd. PLD 1961 Dacca 39, it was held as under:- - "We think, therefore, that it is clear in this case that when the ship left Karachi on the 2nd May, she had delivered her cargo to the consignees within the meaning of para. 6, Article 3, above referred to, and that it is not open to the appellants to take advantage of a survey, which appears to us to have been unduly delayed, in order to extend the period of time."
33. In Delhi Cloth & General Mills Co. Ltd. v. Federation of Pakistan (PLD 1964 (W.P.) Lahore 444), a Division Beach of the erstwhile High Court of West Pakistan, Lahore Bench held as under:-- "The word 'ought' connotes an obligation, a duty moral or contractual - to do what is agreed or is proper - befitting or naturally expected. Where a time is specified in a carriage contract, goods have to be delivered at that specified time, but where no such period is specified, they ought to be delivered within a reasonable time, according to the natural expectations depending on the circumstances of each case. Where the goods are admittedly lost or damaged, there is no question of their delivery. The argument that the period during which a carrier may put off the settlement of the matter by promising an inquiry and giving hopes to the consignor of making compensation should be excluded from computation of the period under Article 31 amounts to the importation of an extraneous consideration into the context of that Article."
34. In Deutsche Dampschiffaharts-Eschatology and another v. Central Insurance Company Ltd., Karachi PLD 1975 Karachi 819, a Division Bench of this Court held as under:-- "Now, as I explained, Kaikaus, J., also held that the Chittagong Port was the statutory agent of the first respondent for delivering to the appellant its cargo; therefore, in my humble opinion, the true ratio of the case is firstly that the carrier can extend the date for the performance of the contract of affreightment, and secondly, that the parties can enter into a fresh contract for delivering the cargo. But, in the instant case, as the consignee had received its cargo nearly two years before the respondent filed its suit, there can be no question of extending the time for the performance of the contract of affreightment, nor of entering into a fresh contract for the delivery of what had been delivered. Accordingly, the judgment cited is completely irrelevant to the instant case, and, as the consignee had admittedly received its cargo nearly two years before the respondent' filed its suit, its claim is hit by limitation."
35. Again it held "Act Accordingly, this does not mean that the parties can extend the period of limitation by agreement, and similarly, if a consignment has been delivered to the consignee, whether damaged or undamaged there cannot be any fresh agreement to deliver it, because that would be impossible."
36. Again it held as under:-- "I may pause here to point out that, in its letter of 4th May 1963 (Exh.19), the respondent had only sought an extension 'of six months in the limitation period', and in reply to this (vide Exh.2), the second appellant had agreed to grant 'an extension of time'. Now, once again, by this letter, the respondent sought 'further extension of three months in the limitation period'. So, with full' knowledge of the judgment in Abdul Jalil Chowdhury's case, the respondent sought an extension of the limitation period. In the circumstances discussed, even though the appellants agreed to this extension in good faith, the agreement was illegal under our law;..."
37. In Messrs United Electric & Refrigeration Company v. Veb Deutsche, Seeree Dercx Rostock, East Germany and another (1980 CLC 921 (Karachi)), a learned Single Judge of this Court held as under: "After dealing with various Pakistani, Indian and English cases, their Lordships were pleased to hold that an agreement to extend the period of limitation is illegal and is not enforceable. It was also held that the parties by mutual agreement may extend the time for the performance of the contract of affreightment or that they can enter into a fresh contract for the delivery of the cargo shipped, but this was possible only as long as the delivery had not been completed. It was further held that if a consignment has been delivered to the consignee, whether damaged or undamaged, there cannot be any fresh agreement to deliver it, because that would be impossible. A distinction was made between the cases of short delivery and/or partial delivery on the one hand and the cases of the completed delivery of the damaged goods.
38. The above case on all fours is applicable to the instant case inasmuch as the plaintiffs have pleaded extension of time simpliciter."'
39. In National Insurance Corporation v. National Shipping Corporation 1083 CLC 888 (Karachi), it was held as under:-- "Normally the goods are to be delivered by the vessel when it calls at the port of discharge but situations may arise when this date may not be treated as the date from which the period of limitation starts running. Where time of delivery is specified in the contract of carriage, the goods ought to be delivered on that specified time. But where no such time has been specified the delivery should be effected within a reasonable time. The determination of reasonable time shall depend upon the facts and circumstances of each case. Difficulty has arisen in' determining the, date of delivery where time of delivery has not been specified and the parties have entered into correspondence and negotiations and the carriers have asked for time for making inquiries or searching the goods. In such cases the time shall be computed from the date when the carriers inform that the goods have been lost or that they are unable to deliver the goods. This is so because the carriers by such correspondence extend the time for delivery at a future date."
40. In National Insurance Corporation v. Pakistan National Shipping Corporation (1985 CLC 360 (Karachi)) it was held as follows:-- "In these circumstances it is obvious that the consignee had notice on 1-8-1982 when the short- landing certificate was issued to them by Karachi Port Trust, that the defendant was not in a position to offer them the delivery of the two missing cases and, therefore, the period of limitation started. Running on Ist August, 1982. The suit for compensation of non-delivery of the said consignment, accordingly, should have been instituted within one year of the said date, namely, 1st August, 1983. The present suit has been filed in this Court on 10th September, 1983, which is beyond one year and is, therefore, beyond time."
41. It was further held as under "It is clear from reading of Article 31 of the Limitation Act, that the period prescribed for filing of suit for compensation for non-delivery of consignment starts running from the date when the goods ought to be delivered. The Courts have consistently interpreted the expression 'when the goods ought to be delivered' as the date on which the consignee has notice that the goods could not be delivered to him. Therefore, the date of acceptance of claim of consignee by the 0 consignment has no relevance to the starting point of Limitation for the suit under Article 31 of the limitation Act."
42. In Messrs Kuwait Airways Corporation v. Messrs Union Surgical Company (1986 SCM R 890) the expression "when the goods ought to be delivered" was considered. The Hon'ble Supreme Court after referring to its earlier decision reported in PLD 1961 SC 340 and decision of Indian Supreme Court reported in AIR 1962 SC 1716 held at page 896 (sic) as under:-- ' "in the case in hand there was no extension, either explicit or implied. On the contrary, the plaintiff on his own showing had been informed as early as 1-11-1981 that the packages had reached the destination/consignee. There was thereafter - no modification, alteration or change in the position on the part,of the appellant or its agents."
43. Again at page 897 it held as under:- "Taking an overall view of the facts of the case, it is clearly established that the plaintiff was unequivocally informed on 1-11-1981 of the arrival of the goods at the destination. On the part of the appellant there was no change in this statement of facts even up to the stage of hearing of appeal in this Court, where both the parties were allowed to rile such documents as they considered necessary and in response they did rile the documents to supplement their respective'claims.
44. Further, established is the fact that the consignee was informed of the arrival of goods at the destination and he refused to take delivery. He had reasons for that. The contention of the learned counsel for plaintiff-respondent that the plaintiff had certain rights over the goods, which rights got interrupted only when the right of consignee started is true and borne out by rules 12 and 13 but to contend on its basis that starting point of limitation prescribed by rule 29 got extended till the refusal was communicated by the carrier is not correct. The date when 'the aircraft ought to have arrived' being not in dispute in this case, the time started to run from 1-11-1981 and two years came to an end on 1-11-1983. The right to claim damages got extinguished thereafter. The suit instituted on 29-9-1984 was time-barred."
45. Applying the above principle to the facts of the instant case, it is clear that the vessel s.s. "KARANJX arrived at Karachi Port on 8-9-1973 and thereafter bagan to discharge. The cargo destined for Karachi including the plaintiff/respondent No. 1's consignment. The defendants Nos.1 and 2 petitioners' case was that the plaintiff/respondent No.1 for reasons best known to them failed to clear the consignment with reasonable despatch with the result that after discharge, the consignment was lying in the care and custody of KPT for over three months at the risk of respondent No.1 duly exposed to loss/damage. The petitioners contended that out of the total consignment of 40 bags, 9 bags were landed as excess cargo under nil marks. The clearing agents of the respondent No.1 sent inquiry letter dated 2-1-1974 (Exh.20) to the petition4s as well as KPT. The KPT issued short-landing certificate dated 9-1-1974 (Exh.21). The respondent No.1 averred in paragraph 12 of the plaint as under:-- "12.That the cause of action arose at Karachi. Within the local limits of P.S. Mithadar in the jurisdiction of this Hon'ble Court, on or about 8-9-1973 when the vessel arrived and subsequently failed to discharge and deliver 9 bags out of the consignment of 40 bags belonging to the, plaintiffs under B/L No.15 and has been accruing since then on each and every approach made by the consignees/plaintiffs and/or their clearing agents to the said defendant No.2 for the delivery of their consignment or for payment of loss suffered by them on account of the non-delivery of the part of the consignment. The cause of action against the defendant No.3 accrued on or about 12- 9-1973 when the defendant No.3 issued their insurance policy and subsequently the loss was suffered by the plaintiffs thereunder and has been accruing since then on each and every approach made by the consignees/plaintiffs/their clearing agents to the said defendant No.3 for the payment of claim under the insurance policy and thedefendant No.3 failed to make the payment in respect thereof."
46. The suit was instituted on 1-7-1975. The vessel arrived at Karachi on 8-9-1973. The vessel completed its discharge subsequently. The respondent No.1 received the bulk delivery of 31 bags on 7-1-1974.
47. The KPT issued short--landing certificate on 9-1-1974 (Exh.21). The outturn report was prepared on 641-1973 (Exh.61) a perusal thereof would show that out of 40 bags, only 31 bags were discharged by the vessel and 9 bags were short-landed.
48. It wag contended on behalf of the respondent No.1 that Exhs. 38, 40, 42 and 44 being acknowledgement of liability by the petitioners, time has to run from the date of these documents and as such the suit is well within time, the. Date of Exh.44 being 21-6-1974 the suit having been filed on 1-7-1975.
49. This contention, however, cannot be accepted. Exhibit 88 is a letter dated 26-2-1974 written by the petitioners informing the respondent No.1 that all the bags were correctly landed Exh. s.s. "KARANJA".
50. Similarly in Exh.40 is dated 16-5-1974, Exh. 42 is dated 14-6-1974 and Exh. 44 is dated 27-6-1974 that 9 bags are lying under "NIL" marks in "D" Auction Shed, M.T. Yard.
51. None of these letters can be said to be an acknowledgement of the liability on the part of defendants 1 and 2 petitioners. They can at best be said to be acknowledgement of the respondent No.1's enquiry regarding loss of the part of consignment. Had there been any unconditional acceptance of the liability in any of the aforesaid documents, then the suit should have been deemed to have been filed within time.
52. In the instant case, the suit was for recovery of damages that there D caused in respect of 9 bags out of 40 bags delivered to the consignee. Thus, inview of the aforesaid position of law, I must hold that the suit is governed by Article 31 and therefore clearly barred by limitation.
53. The learned Additional District Judge has apparently overlooked this aspect of legal position. The learned trial Court has rightly come to the conclusion that the suit is barred by limitation. In appeal, the learned Appellate. Court took a- wrong view of law. Ordinarily the attention of the learned Appellate Court was not drawn to the correct position in law by the Supreme Court on their decision reported in PLD 1961 SC 340 which was followed by this Court in a case reported in' PLD 1975 Karachi 819, 1980 CLC 1921 and by their Lordships of Supreme Court in 1986 SCM R 890.
54. It is thus clear that the decision of the Ist Additional District Judge, Karachi South is contrary to law.
55. On the authorities cited before me and on the facts and circumstances of the case, I am of the opinion that the suit is barred by limitation. In this ' view of the case, the decision of the Ist Additional District E Judge is set aside and that of the trial Court on issues I to 11 is restored. The plaintiff's suit is dismissed as barred by limitaition. This Civil Revision No.194 of 1987 is allowed. In the facts and circumstances of the case, the parties are directed to bear their own costs.
56. The learned counsel appearing for the petitioners has contended that respondent No.1 has not proved the value of the 9 bags. On the other hand, Mr. Ghulam Muhammad has submitted that the value as duly proved by the plaintiff/respondent. P.W. 1 Badar Karim (Exh.5) has stated that the respondent No.1 established letter of credit through Netherlands Bank for U.S. $7510/- for import of 40 bags from Tanzania. He has produced L/C as Exh.7. He has produced the bank advice for release of documents as Exh. 8 and their bill as Exh.
9. The payment was made to the bank. He has produced draft of amount remitted by their Bank as Exh.
10. He has also produced invoice as Exh. 12 and certificate of quality as Exh.
13. He has further produced weighment certificate as Exh.
14. On the basis of this evidence, the trial Court came to the conclusion that the respondent No.1 plaintiff has proved the value of 9 packages.
57. This finding of the trial Court is affirmed by the learned Appellate Court. The learned 1st Additional District Judge has rightly come to~'the conclusion that the value of 9 bags was proved by the respondent No.l. Therefore, under these circumstances it is rather hard to say that the Additional District Judge has taken into consideration some matters which were not on the record. Thus the Additional District Judge was justified in coming to the conclusion that the first respondent had proved the value of 9 bags. Therefore on the facts, the present revision fails.