' The plaintiff has filed this suit for recovery of Rs,1,65,78,430 with the following prayers:- "(a) for judgment and decree against the defendantsNos.1, 2 and 3 jointly and severally for Rs,1,65,78,430 in favour of Habib Bank Ltd., the defendant No,6 and only alternatively in favour of the plaintiff or jointly in favour of the Bank and the plaintiff;
(b) mark up/compensation/damages at 15% per annum with quarterly rest, pendente lite and future;
(c) cost of the suit."
2. After filing of the suit the defendants were served and they filed their written statement.
3. The plaintiff has filed CMA No,2973 of 1994 under Order 26, Rule '9 read with section 151. C.P.C. With the prayer:- "that the Honourable Court be pleased to appoint Nazir of the High Court to inspect, examine and verify the contents of the bags offered by the defendant No,2 and report to this Honourable Court, after necessary examination and verification in presence of all concerned, whether the bags being offered are the same which were imported by the plaintiff and covered by the Bills of Lading Nos.330855368 and 330855374 both dated 21-2-1994 and the relevant invoices and the packing lists."
4. This application is supported by the affidavit sworn by Rana Qamar Zaman son of Rana Muhammad Afzal, the plaintiff. Relevant paras. Are reproduced as under:-- "3. That the plaintiffs claim against defendants Nos.l, 2 and 3 is based on shortlanding/non-delivery of 120 bags of Mango Flavour, fully described in the plaint, shipped from Singapore under 2 Bills of Lading Nos.330855368 and 330855374 both dated 21-2-1994 on board the vessel "CYCLADES" belonging to defendant No,1 which discharged her cargo through the agency of defendant No,2.
4. That the defendant No,2 maintains that the entire 120 bags shipped under the above Bills of Lading were duly discharged from the vessel into the custody of Karachi Port Trust, the defendant No,4 and are available for delivery in the premises of Karachi Port Trust.
5. That the main controversy between the parties is whether the bags being offered for delivery pertain to the plaintiffs consignment or not.
6. That the burden of proving that the bags pertain to my consignment is upon the defendants Nos.1, 2 and 3 but in order to have the identity of the bags settled the plaintiff is making this application."
5. The very interesting paragraph of this affidavit is para.
6. According to this burden of proof that the bags pertain to his consignment is upon defendants Nos.1, 2 and 3, "which will be discussed later on".
6. Lari has cited following authorities:--
(i) (PLD 1980 Karachi 74) case of Messrs Amin Jute Mills Ltd. Chittagong and another v. Pakistan Shipping Corporation, Karachi and another:-- "Immunity from liability--Burden of proof---Burden to prove that loss occurred due to an excepted cause, held, falls on shipowner--Prima facie case of loss falling within exception made out-- Burden of proof, held further, shifts to consignees for showing shipowner being not entitled to benefit of exception on ground of negligence."
(ii) (PLD 1981 Karachi 367) case of Messrs Abdul Latif-Abdul Shakoor Madraswalla, Karachi v. Messrs the Karachi Steam Navigation Co. Ltd.:-- "Discharge of goods--Goods shipped under a particular mark--Must be discharged at port of destination under same mark--CargO discharged at port of destination under different mark, held, cannot be treated as a proper discharge of cargo."
7. Mr. Ghulam Abbas Pishori, learned counsel for defendants Nos.1 and 2 has contended; (i) that the plaintiff is not owner of the goods and in support of this he has filed counter-affidavit of Siraj Banatwala son of Ashraf Banatwala, Director of company defendant No,2. The relevant para. Is reproduced as under:- "6. I say that the plaintiff has no locus standi to make the application because he has no title to the goods nor is he entitled to claim delivery of the contents of the container mentioned in the bills of lading. The plaintiff has not surrendered to defendant No,2 the Original Bills of Lading to claim ownership and/or delivery of the contents of the container."
8. Mr. Peshori also contended; (i) that consignment was brought by vessel of defendant No,1 under the agency of defendant No,2; (ii) that the container was discharged from the vessel by KPT in March 1994; (iii) that the container is lying in the KPT since March 1994 but the plaintiff did not care to apply for its delivery and (iv) that the application is not maintainable.
9. Mr. Naeem Ahmed, learned counsel for the defendant No,3 has contended; (i) that two types of survey can be conducted under the supervision of the Customs and without the supervision of Customs Officer the Nazir of this Court cannot check the goods; (ii) that since more than a year, the goods are lying in the K.P.T. But the plaintiff has not taken any step for its delivery and (iii) that there is no any allegation that the marks were tampered with.
10. Mr. Arif Ahmed learned counsel for the defendant No,4 has contended; (i) that no relief is claimed against defendant No,4; (ii) that the plaintiff has not filed any document with the defendant No,4; (iii) that in the absence of proper and legal document delivery to the plaintiff cannot be affected; (iv) that the plaintiff has no title documents of the goods.
11. Mr. A.R. Akhtar for defendant No,6 has contended; (i) that original documents are with the Bank.
He has also referred to the contents of written statement filed by defendant No,6. For the sake of brevity the relevant portion of para.9 of the written statement is reproduced as under--- "Accordingly the defendant bank has debited the PAD account in the name of the plaintiff for Rs,76,10,442 on 2-3-1994, and Rs,76,10,442 on 3-3-1994. As per term of L/C the negotiating bank under covering schedule dated 24-2-1994 and 25-2-1994 has claimed and recovered reimbursements from the defendant's account from HBL, New York. The plaintiff is liable to pay the defendant-bank Rs,152,20,884 with further mark-up from 3-3-1994 to date, liquidated damages and other charges."
' He has also referred me to para.13 of the written statement which is as under:-- "It is further submitted that defendant Bank is holding shipping documents in custody as the plaintiff has not made payment of two drafts drawn under the L/C. The defendant-bank does not deal in goods imported by the plaintiff and accordingly the bank is not responsible for the consignment lying at KPT. The plaintiff has committed breach of the terms of L/C and for failure to pay the amount thereunder."
12. I would also like to refer the counter-affidavit filed by Abdul Hafeez son of Abdul Bari, Manager of defendant No,3. Relevant para. No,6 is reproduced as under:-- "That the contents of para. 6 of the affidavit are denied. It is submitted that primarily the burden is on the plaintiffs to prove that bags in question do not form parts and parcels of the suit consignment.
' Thereafter onus shift on the defendants Nos.1 and 2 only and the defendant No,3 has nothing to do in this respect."
13. I would like to refer paras. Nos.7 and 10 of the written statement filed by defendant No,4, ICPT, which are as under:-- "7. With regard to para. 7 of the plaint it is submitted that m.v. CYCLADES arrived at the Port of Karachi on or about 6-3-1994 and discharged her cargo. As per Preliminary Dutturn Report of the vessel 120 bags (60 bags each under Bill of Lading Nos.330855368 and 330855374 were not landed and were shown short landed. However, 2 pallets under NIL Marks and 2 pallets under mark "Yasin Karachi" were landed and shown excess in P.O.R."
10. With regard to the .Contents of para.10 of the plaint, receipt of letters by answering defendant is admitted. Reply dated 11-5-1994 was sent to plaintiff who was advised to submit documents for taking delivery of the suit consignment"
14. I would also like to refer Order 26, Rule 9, C.P.C. Which is as under:-- "Commissions to make local investigation.--In any suit in which the Court deems a local investigation to be requisite or proper for the purpose or elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court."
15. I would also like to refer section 151, C.P.C. Which is as under:-- "Saving of inherent powers of Court .--Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
16. I would also like to reproduce the orders of this Court dated 12-7-1994, 26-7-1994, 8-8-1994 and 27-11-1994 respectively as under:- "12-7-1994. Mr. Imtiaz Ahmed Lari, Advocate, requests for a short adjournment to approach the bank in connection with original bill and other shipping documents lying with them. Adjourned to 26-7- 1994. 26-7-1994. Mr. Imtiaz Ahmed Lari requests for further time for approaching the bank in ,connection with original bills and shipping documents lying with the bank as due to absence of the plaintiffs proprietor from Karachi, this could not be done so far. Adjourned to . 8-8-1994. 8-8-1994.
Mr. Lari requests for further time to sort out the matter with the bank. Adjourned, 27-11-1994. (1) It appears that in spite of service defendant No,5 is remaining absent. The defendant No,5 to be proceeded ex parte.
(2) Mr. Imtiaz Ahmed Lari, requests for further time as negotiation with the bank are still going on.
Counsel present have no objection. Adjourned to a date in office."
17. I have gone through the material placed on the record and I hair dso gone through the authorities cited by Mr. Imtiaz A. Lari.
18. The facts of the authority i,e, PLD 1980 Karachi 74 referred by Mr. Lari, are quite different and distinguishable from the facts of the present C.MA. In the referred case the learned D.B. Of this Court has dismissed the appeal from the orders of the learned Single Judge of this Court on original side who found it established that on the evidence that a cyclone of severe intensity had occurred on 10th October, 1960 and that the goods which were discharged in the lighters at the outer anchorage, as well as the goods which were lying in the holds of the ship, which was then at the jetty, were damaged by sea-water on account of the cyclone whether, i,e, high waves, tidal bore and strong winds at the outer anchorage and in the harbour, which could not be foreseen or guarded against even after necessary precautions were taken, and that as the consignees had failed to establish negligence on the part of the carrier, he came to the conclusion that the carrier was not responsible. Whereas the case in hand is that the plaintiff has not taken trouble to get the original documents, which are lying with defendant No,6 and as pointed out earlier vide paragraphs 9 and 13 of written statement of defendant No,6 the plaintiff is liable to pay to defendant bank Rs,152,20,884 with further mark-up from 3-3-1994. Furthermore, prima facie, the plaintiff has committed breach of terms of Letter of Credit and for failure to pay the amount thereunder. Therefore, the authority cited by Mr.Lari is not applicable as far the facts and circumstances of this case are concerned.
19. The facts of the authority i,e, PLD 1981 Karachi 367 referred by Mr. Lari are also quite distinguishable and in any case are not relevant to the present case.
20. I would like to refer the relevant portion of the judgment of my Lord Saiduzzaman Siddiqui, J. (as then he was), which is as follows:- "The burden of proving these facts was on the plaintiff. In a suit for recovery of damages, the plaintiff must show that he took all reasonable steps to mitigate the loss."
21. Here in this case the plaintiff even has not taken any step to get the original documents from the bank so as to prima facie, establish his ownership upon the goods, which are lying in the KPT since more than a year or so due to lack of interest of the plaintiff or he is not in a mood to pay the required amount to the bank.
22. A perusal of the orders dated 12-7-1994, 26-7-1994, 8-8-1994 and 27-11-1994, prima fade, show that the learned counsel for the plaintiff was trying to approach the Bank for a settlement with defendant No,6, probably which settlement has not yet been finalised.
23. The plain reading of Order 26, Rule 9, C.P.C. And section 151, C.P.C. Which I have referred in the earlier part' of this order is not attracted in any case in this C.M.A.
24. For the foregoing reasons this C.M.A. Is dismissed.