AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 13-11- 1970 passed by a learned Single Judge of the High Court of Sindh in 11-Appeal No.2 of 1987, filed by the respondent allowing the same and thereby setting aside two concurrent judgments of the two Courts below decreeing the appellant's suit for Rs.35,982. Leave to appeal was granted to consider, the question, whether the High Court should not have interfered in second appeal with the concurrent finding of fact when the same. Was based after evaluation of evidence and material brought on record keeping in view the ratio in the case of Mir Abdullah v. Muhammad Ali and others 1977 SCM R 280 and Shamshad Ali Shah and others v. Hassan Shah and others PLD 19(A SC- 143.
2. The brief facts are that the appellant imported 383 reels (hereinafter to be referred as the consignment) of mechanical printing papers in sizes of 2 x 17" and 2 x 27" weighing 81,258 Kgs. At a total cost of US $ 44,691.90 which was remitted through a letter of credit dated 3-9-1974 established by M/s. Habib Bank Limited. The goods werL shipped on board, "GWARDIA LUDOWAO"
(hereinafter to be referred to as the Vessel) under Bill of Lading No.2642 dated 24-5-1974 under marks and numbers mentioned therein. It seems that the vessel arrived at the Port of Karachi on or about 25-11-1984 and discharged the cargo in the custody of the Karachi Port Trust. The respondent was appointed as the clearing agent for taking delivery after getting the same cleared from the Customs and the Karachi Port Trust. It appears that the respondent in the first week of January, 1975, confirmed that the above consignment had been received and stored in his godown under lien' of M/s Habib Bank Limited. It further appears that the appellant took piecemeal delivery of the consignment from the respondent between 31-12-1974 and 21-12-1975 on various dates. It was the case of the appellant that he received cargo weighing 68,380 Kgs. Till the above date. It was also the case of the appellant that the balance weighing 7,437 Kgs. Was lying in the respondent's godown and that there was a short delivery of 5,442 Kgs. As was allegedly confirmed by the surveyor M/s. Moin & Co. It was also the case of the appellant that the respondent without his consent got the delivery orders of the shipper amended as to the marks namely, instead of No. AE 242-B-14595 Karachi made in Norway with the running number got EA 2042-A-14595 Karachi substituted. On the basis of the above averments Suit No.1506 of 1977 was filed in the Court of Vth Senior Civil Judge at Karachi, for the recovery of Rs.35,982.
The above suit was resisted by the respondent inasmuch as written statement was filed in which it was averred that the respondent was appointed by the appellant as his agent for clearing the consignment. It was further averred that some of the goods offered for delivery were damaged and under the instructions of the appellant the respondent requested the agents of the vessel for survey of the consignment which was done or conducted by M/s. J.B. Potts and Co. Ltd., who issued certificate No. 103 dated 13th January, 1975. It was further averred that the appellant had inspected the goods which were offered for delivery and authorised defendants to accept and clear the same on their risk which the appellant did orally as well as to writing through his letter, dated 11th December, 1974, a copy of which was enclosed as marked "B" to the written statement. It was further pleaded that after the respondent cleared the above consignment as per instruction of the appellant, the latter contended that the goods did not conform to the sizes represented by the shippers and the weight. It was further averred that the respondent pointed out to the appellant that he accepted the delivery of reels bearing marks as offered and that the amendment in the shipping or customs record was consequential thereto for purposes of clearance and that his contention was not valid or sustainable. It was further pleaded that at all material times the appellant or his representatives were present and were kept informed and were aware of the position and that the respondent acted upon representations and at the instructions of the appellant.
3. On the basis of the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether Anwar Enterprises is a Firm? If yes, whether the suit is barred under section 69 of the Partnership Act?
(2) What was the weight, size and value of the goods?
(3) Whether the defendant short-delivered the plaintiff 5,442 Kgs. Out of the import of 81,258 Kgs.
Thereby causing the plaintiff loss of Rs.35,982?
(4) Whether the defendant was negligent?
(5) Is the suit barred by time?
(6) To what relief is the plaintiff entitled?
(7) What should the decree be?
4. In support of the suit, the appellant examined himself Exh.5, produced various documents including Letter of Credit Exh.6, Invoice Exh.8, Bill of Entry Exh.9. The appellant also examined P.W.
Muhammad Aslam Exh.37 from M/s. Habib Bank for proving L/C Exh.36 and the retirement of documents by the appellant Exh.38. The appellant also examined A. Moin, the Surveyor, for proving the survey report Exh.14, whereas the respondent examined D.W.1 Akbar Ali Exh.D/1, who was Port Manager in the respondent's firm from 1972 to 1976, D.W.2 Ghulam Ali Exh.D/3, who was the Manager in the defendant's firm from 1972 to 1976, D.W.3 Abdul Jameel Exh.D/4, a traffic supervisor in the K.P.T., D.W.4 Rafiuddin Exh.D/5 from L.I.M. Department of Habib Bank Foreign Exchange Branch, who produced bank delivery orders in respect of the consignments which were pledged with M/s. Habib Bank Exhts. 41, 53, 45, 47, 49, 51, 55, 57, 59, 61, 63, 65, 67, 70, 72 and 75.
5. Issue No.l was not pressed before the learned trial Court and, therefore, it was dropped. On issue No.2 the learned trial Court held that the consignment consisted of 383 reels of 2 x 17" and 2 x 27" of 81,258 Kgs. As regards issues Nos. 3 and 4 which were taken up together, the learned trial Court held that reels of 68,380 Kgs. Were delivered to the appellant while reels of 7,436 Kgs. Were not delivered to the plaintiff and that 5,442 Kgs. Were short in weight. It was further held that the respondent acted illegally, unauthorisedly and negligently in clearing the goods in question from the K.P.T. And, therefore, the appellant was entitled to recover loss of Rs.35,982 in respect of the above short delivery of 5,442 Kgs. It was also held that the respondent had unauthorisedly applied for amendment of marks and numbers of the shippers and that he took the delivery of the consignment without requesting K.P.T. For weighing the goods at the time of delivery. Issue No.5 was not argued by the parties and, therefore, the finding in respect thereof was recorded in the negative. '
6. In view of the above findings on Issues Nos. 2, 3 and 4, under Issues Nos. 6 and 7 the appellant's suit was decreed as was prayed for: Against the above judgment/decree of the trial Court, the respondent filed above Civil Appeal No. 302 of 1985 which was dismissed through the above judgment/decree dated 21st October, 1986. Thereupon respondent filed second appeal which was upheld by the learned Judge in chamber through the judgment under appeal, inter alia, for the following reasons:- "1n 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 acceptedwithout objection. The remaining reels were in the custody of theappellant 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 isbased 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 were 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."
Against the above judgment, appellant filed a petition for leave to appeal which was granted to consider the above question,
7. In support of the above appeal, tic appellant has argued in person besides filing written arguments. The thrust of his argument was that since. There were concurrent findings of the two Courts below, the High Court in second appeal could not have reversed the above findings. In furtherance of his above submission, he has relied upon the following cases: Shanishad .All Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Mir Abdullah v.
Muhammad Ali and 2 others 1977 SCMR 281); Mst. ICubra Bcgum v. Muhammad Yasin Khan PLD 1983 SC (AJ&K) 56 and Government of West Pakistan v. Fade Haq 1983 CLC 2009.
There cannot be, any cavil with the proposition of law enunicated inthe above reports that the concurrent findings recorded . By the two Courts below after careful and elaborate consideration cannot be disturbed either by die 1-14-h ;'curt or by the Supreme Court. However. At the same time it is also well-established proposition of law that if the concurrent finding is based onmisreading o1 evidence or founded without taking into consideration, material pieces of evidence on record or is perverse or contrary to record, it is liable to be disturbed by the forum superior to the Courts which recorded such al concurrent finding.
8. We are inclined to hold that the impugned judgment of the High Court is unexceptionable, inter alia, for the reason that the two Courts below while recording concurrent findings in favour of the appellant have misread the evidence and have omitted to take into consideration material evidence and facts. It may be observed that since respondent was acting as the agent for the appellant the alleged amount of loss could have been claimed against him by the appellant if the respondent would- have acted in excess of his authority or has been guilty of breach of his duty as an agent. In this regard it may be pertinent to reproduce section 211 of the Contract Act, 1872, which reads as follows:- "An agent is bound to conduct the business of his principal according to the directions given by the principal, or, in the absence of any such directions, according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business. When the agent acts otherwise, if any hiss be sustained, he must make it good to his principal, and, if any profit accrues, he must account for it.., A plain reading of the above section shows that an agent is bound to conduct the business o: his principal according, to his directions or in the absence dl any such direction according to the custom which prevails in doing business of the same kind at the place where the agent conducts such business. It further shows that if he acts otherwise which results in loss to the principal he is obliged to make good to his principal and if any profit accrues he is liable to account for.
In the present case, in our view, the appellant failed to prove that the respondent either acted in excess of his authority or has been guilty of breach of his duty. The basic question is as to whether the respondent as a clearing agent was obliged to take the delivery of the consignment from the Port authorities after weighment of the consignment- The appellant has not produced any document to indicate that he had instructed the respondent not to take the delivery of the consignment without weighment nor he has been able to prove that it was normal or usual that the delivery of such consignments are taken from the port authorities after weighment. On the contrary the evidence which is on record in the form of evidence of Abdul Jameel Exh.D/4. a traffic supervisor in K.P.T., indicates that normally such consignments are delivered by number of reels and no weighment is carried out. In this regard it may be pertinent to quote the following portion of his statement: "The KPT had delivered the goods to the consignee. The reels papers are generally delivered by number of reels and no weight is conducted for delivery."
It is true that in the cross-examination he stated that at the request of clearing agent the KPT also gives delivery after weighment upon payment in special case on payment of weighment charges.
As pointed out hereinabove, the appellant failed to prove that he had directed the respondent to take the delivery after weighment. The evidence on record indicates that the appellant directed the respondent to take the delivery of the consignment leaving the damaged portion of the consignment on account of rain at his risk. In this regard. It may be pertinent to reproduce the appellant's letter, dated 11th December, 1974, addressed to the respondent Exh.20 which reads as follows:-- "Anwar Enterprises Importers & Exporters Shaman Chamber Room No.13 (2nd Floor) Shahrah-e- Liaquat, Karachi-2.
Dated 11th December, 1974.
M/s MS.H. Agency Hakimsons Building Karachi.
Dear Sirs, 383 REELS MECHANICAL PRINTING PAPER PER St GWARDIA LUNDWA ' With reference to the above consignment which has unfortunately .: :" partly been damaged by rain due to being stored in the open compound by the KPT authorities on the undertaking given by the Carriers for being responsible in case of any eventuality.
The consignment has been jointly surveyed by the representative of the carriers and the Insurance Company which has also been inspected by us. We, therefore, authorise you to take delivery of the ' '' ' balance consignment which has been inspected by us on our risk andtherefore you must be careful that only those reels are lifted which are proportionally less damages.
'` Thanking you, `- Yours faithfully, ' for ANWAR ENTERPIRESES CC: M/s. Habib Bank Ltd. LIM Dept. Foreign Exchange Branch, Karachi."
It may be pointed out that the above letter was written before the respondent had taken delivery of any part of the consignment. The above letter clearly demonstrates that the appellant himself inspected the consignment and, therefore, he was aware of the condition of the consignment. We asked the appellant during the arguments to point out any of his letters prior to the date of the delivery or immediately after the delivery of part of the consignment that he had taken the delivery under protest or directed the respondent not to take the delivery without weighment. He was unable to point out any such letter though in his written arguments in para 13 he has referred to the documents at pages 191 to 207 of the paper book of the High Court. He has referred to Exhs.Ll, 12 but they relate to January 1975. He also referred to Exhs. 15, 16 and 17 which also do not relate to the period prior to the date of delivery. The appellant's above-quoted letter belies appellant's case. The documents at pages 191 to 207 of the paper book of the High Court also do not show that theappellant had protested or had taken the delivery under protest. They comprise knee of letters/telegrams for the period commencing on 9th September and endingon 29th October, 1975 Exhs. 27 to 33.
9.The High Court finding that the appellant had taken the delivery of 337 reels without any objection seems to be in consonance with the evidence on record. The above important aspect was overlooked by the two Courtsbelow.
We are also in agreement with the learned Judge in chamber that there was no reliable evidence on record to prove that factually there was short delivery of 5,442 Kgs. To the appellant. The appellant's claim was founded on the survey report Exh.14. To prove the above survey report, the appellant examined P.W.3 A. Moin Exh.39, who in his cross-examination made followingadmission:- - "My staff have conducted the survey, namely Mr. Jan Iqbal. I have not produced the notes prepared by the surveyor at the time of survey of the goods on the basis of the notes I have signed Exh.14. I did not verify the notes exact in file. I see 36 delivery orders of the consignment in suit Exh.40 to Exh.75 and say that weight of the paper received are not mentioned in the said exhibits. Voluntarily says we got the reels weighed. I am not sure if the reels were accepted at the ports, of the time of survey. It is a fact that if the reels were weighed, the fact might have been mentioned in the survey report Exh.14. We did not actually weigh the reels but we have noted the weights seeing at the lable of the reels (printed). It is a fact that the different reels had different weights and according to the size viz. 27 inches and 70 inches:'
The above admission indicates that A. Moin was not the person who carried out the survey. It also indicates that no weighment of the consignment was done at the time of carrying out the above survey. In this view of the matter, there was no evidence on record to prove the factum that factually there was short delivery of the above quantity of the consignment. However, the appellant has urged that in respect of the consignments of the nature in hand, weighment is done to the extent of 5 per cent at random. If we were to accept the above submission it will in fact adversely affect the appellant's case. Since the appellant had claimed damages for the short delivery of the above quantity against an agent on account of his alleged negligence as damages, the burden was on him to have proved the actual short delivery on the basis of actual weighment and not weighment of 5 per cent.
10. It was also urged by the appellant that since the respondent had prepared the Bill of Entry containing the full weightage of the consignment, it was not open to him to have pleaded that the contents of the same were not correct for want of production of Bill of Lading of the consignment. It has come on record that the above bill of entry was prepared on the basis of the Invoice. The respondent was not expected to get the consignment weighed before filling in the Bill of Entry on behalf of the. Appellant. In our view, even if we were to accept the contents of the Bill of Entry as correct, the same does not prove the short delivery of the quantity of the consignment as the appellant had not taken the delivery of 337 reels after getting the same weighed.
11. It was also urged by the appellant that the respondent unauthorisedly got the delivery orders amended by the shipper without the consent of the appellant. Even if we were to accept the above contention, the fact remains that the appellant has failed to prove that there was in fact short delivery of the above quantity of the consignment.
12. The upshot of the above discussion is that the above appeal has no merits and, therefore, it is dismissed. However, there will be no order as to costs.