Ad Interim order of injunction was granted on 17-11-1977 and pursuant to notices issued for hearing fixed for today, Mr. Mansoor Ahmed Khan, learned counsel for the defendants has filed vakalatnama on behalf of defendants Nos. I and 2 and bas undertaken to represent defendant No. 12, all of whom have been duly served. The defendant No. 1 has filed a counter-affidavit and also moved three separate applications under section 10, Order VII, rule ll and section 151, C. P. C. Copies of the applications and counter-affidavit were supplied to the learned counsel for the plaintiff in Court today. The plaintiff has also moved an application under Order VI, rule 17, C. P. C., seeking certain amendments in the plaint.
2. Mr. Mansoor Ahmad Khan, learned counsel for the defendants, represented by him today, raised several contentions with r lard to the very maintainability of the suit. According to him, the suit was not maintainable under section 11, C. P. C. And in any case the proceedings in this suit were liable to be stayed under section 10 of the C. P. C. He further contended that this suit was not maintainable in admiralty jurisdiction and therefore action in ram was barred.
3. I sent for the file of Admiralty Suit No. 503 of 1977 and noted with surprise that in spite of certain admissions made in the said suit as were recorded in order dated 24-9-1977, the plaintiff hid the cheek to file this suit. The relevant paragraph of the said order incorporating the admissions of the plaintiff, as are relevant for the consideration of this application, are reproduced hereinbelow :- "However, the first question for consideration is whether action In ram against defendant No. 1 is maintainable or not. It is admitted position that nothing is due from m. v. Azeem on' account of any 'necessaries' supplied or services rendered to m. v. Azeem defendant No. 1 or on any other account covered by sections 6, 7, 8, 9 and 10 of the Admiralty Courts Act, 1861. It is admitted position that a sum of Rs. 1,75,203.27 was lying to the credit of this ship in its account with the, plaintiffs which they have adjusted against their claim on account of 'necessaries' supplied to and services of stevedor- -ing, discharging, loading, rendered to the five ships mentioned herein. Before. For an action in ram against a ship in admiralty jurisdiction. It is necessary to allege and prove that services have been rendered or 'necessaries' have been supplied to the ship or claim has arisen on grounds covered by the provisions of sections 6, 7, 8, 9 and 10 of the Admiralty Courts Act, 1861 with the property against which action is brought. In the present case the claim has not arisen on account of 'necessaries' supplied or services rendered to m. v. Azeem."
It would thus appear that the plaintiff clearly admitted that nothing was due from the defendant No. 1 on account o' necessaries supplied or services rendered or on any other account covered by sections 6, 7, 8, 9 and 10 of the Admiralty Courts Act, 1861. The other admitted position was that a sum of Re. 1,75,203.27 was lying to the credit of the defendant No. 1 in its account with the plaintiff which the latter had adjusted against their claim on account of necessaries supplied to and services of stevedoring, discharging, loading rendered to the five other ships mentioned in the order dated 24-9-1977, as detailed below :- Rs. "m.v. Geena1,15,944.47 m.v. Marieke18,819.28 m.v. Confidence 1,06,016.96 m.v. Ocean Friend 5,14,527.55 m.v. Malteza-S. 1,73,107.39 Total9,28,406 65"
4. Another question which came up for consideration in the said suit was as to the ownership of the vessel by defendants Nos. 3 and 5. M3 learned brother Mr. Naimuddin, J. After going through evidence tendered by the parties recorded a conclusive finding to the effect that prima facie the defendants in the said suit (namely defendants Nos. 2 and 3 herein) were not owners of defendant No. 1 and ownership of the vested in present defendant No. 2 namely Messrs Azeem Shipping Corporation S. A. In so far as the claim of the plaintiff against Azeem Shipping Corporation, defendant No. 2 herein is concerned, it is also an admitted position that a sum of Re. 1,75,203.27 was lying to the credit of defendants Nos. 1 and 2 against the plaintiff. Therefore, prima facie the plaintiff has no claim against defendant No. 2 either, the question of adjustment if any apart, as alleged in the application filed today by the plaintiff.
5. The upshot of the above discussion is that on the basis of admissions recorded in the order dated 24-9-1977, passed in the said Suit No. 305/77 an action In rein does not lie against defendants Nos. 1 and 2 and the plaintiffs may have to sock necessary amendments and move this Court in Its ordinary civil jurisdiction.
Putting it politely, I would like to add that if a copy of the plaint in Suit No. 503177 or copy of the order dated 24-9-1977 passed in the said suit was brought to my notice while hearing the injunction application on 17-11-1977, I would not have granted any order of ad Interim injunction which I vas persuaded to do in view of the urgency of the matter on the prime consideration that the defendant No. 1 is a foreign vessel and the claim of the plaintiff required examination. However, the position, as the same has been crystalized today, mattes it clear that the plaintiffs are not entitled to any order of injunction much less of arrest of defendant No. 1. What other consequences will follow on the basis of the facts recorded hereinabove, is a matter which will have to be considered later on and it is for the parties to take appropriate steps to find a solution of the same.
6. In the circumstances the ad Interim order of injunction .Granted on 17-11-, 977 is hereby vacated and the application is dismissed. The Collector of Customs and the Dock Master. K. P. T. Should be notified immediately about the vacation of the said order of injunction.
7. The office will number the four' applications referred to hereinabovo, moved by the respective parties. The learned counsel for the parties have waived notices of the applications and the same will be heard on a date to be fixed by the office. s. A. H.