' In Suit No, 175 of 2002 an application (C.M.A. 1049 of 2002) has been filed, which is an application under Order XXXIX, rules 1 and 2, C.P.C., seeking a restraining order against the defendants from demanding or recovering directly or indirectly any amount by way of war risk surcharge. Another application under Order VII, rule 11, C.P.C. (C.M.A. 1567 of 2002) was filed by the defendants with the prayer that the plaint should be rejected.
2. In Suit No, 176 of 2002 an application (C.M.A. 1051/02) has been filed, which is an application under Order XXXIX, rules 1 and 2, C.P.C., seeking a restraining order against the defendants from demanding or recovering directly or indirectly any amount by way of war risk surcharge. Another application under Order VII, rule 11, C.P.C. (C.M.A. 1568 of 2002) was filed by the defendants with the prayer that the plaint should be rejected.
3. In Suit No, 189 of 2002 an application (C.M.A. 1129 of 2002) has been filed, which is an application under Order XXXIX, rules 1 and 2, C.P.C., seeking a restraining order against the defendants from demanding or recovering directly or indirectly any amount by way of war risk surcharge. Another application under Order VII, rule 11, C.P.C. (C.M.A. 1569 of 2002) was filed by the defendants with the prayer that the plaint should be rejected.
4. Against both the applications counter-affidavits and rejoinders have been filed. Both sides have relied more on legal objections than on factual position.
5. It would be appropriate for me first to take up the application under Order VII, rule 11, C.P.C. (C.M.A.
1567 of 2002). The first objection raised by the defendants was to the effect that the matter had already been decided and disposed of by the Lahore High Court by a judgment dated 12-12-2001.
According to them the points in connection with war risk surcharge have been decided and, therefore, this suit is not maintainable. Secondly, it is the contention of. The defendants that the plaintiffs have claimed that there is a restrictive trade practice and, therefore, there is a violation of section 3 of Monopoly and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970. In the said Ordinance in sections 10 to 12 the mode of correction of such practice and for awarding punishment is given. According to defendants if indeed they are hit by the Monopoly Restrictive Trade Practice then the plaintiff should have availed of the remedy provided under law, which requires them to approach the authority first. The authority has also powers to grant interim orders and as such the plaintiff would have been in a position to get interim relief and cannot, therefore, argue that he has come to this Court to seek not only relief in the suit but also interim relief. They have also claimed in the application that against defendants Nos.1 to 22 there is no cause of action as they are the local agents of the shipping lines listed from defendants Nos. 23 to 28 in the title of the plaint. It is further claimed that defendants Nos.1 to 22 are not party to any conference line agreement and have nothing to do with the imposition of war risk surcharge. In effect they are merely recovering war risk surcharge on the instructions of defendants Nos.23 to 28.
6. The plaintiff has filed counter-affidavit to C.M.A. No,1567 of 2002. According to them the writ petition that was filed before the Lahore High Court was dismissed in limine on the ground of maintainability. They have denied that the petition was dismissed on merit. The reliefs sought were ancillary and incidental. The principle of res judicata was, therefore, not applicable.
7.I have seen the petition filed where the petitioners have stated that the petition arises out of the failure of the respondents to act in compliance with the provisions of the Merchant Shipping Ordinance, 2001, especially sections 81 to 83 thereof. Through this petition the petitioner has also sought to highlight the collusive action of the respondents Shipping Companies in holding the international commerce of the country hostage to the payment of unjustified freight charges. In the end the petitioners have prayed that the respondents should be asked to perform its obligation under the Merchant Shipping Ordinance. The respondents should be restrained from giving effect to the unlawful agreement for the purpose of charging freight rate under the guise of war risk surcharge. They have also sought refund of the amount so recovered. The judgment so passed has looked at sections 81 to 83 of the Ordinance and has observed that the provisions especially sections 81 to 83 of the Ordinance were applicable only to Shipping Operators engaged is coastal shipping and not to foreign shipping lines transporting cargo to and from Pakistan. The learned Judge has further gone on to state that based upon his detailed observations the relevant sections are inapplicable to any international liners conference agreement to which respondent-shipping lines may be a party. He has, therefore, observed that the said shipping lines cannot be required by the Federal Government to provide to it a copy of the Liners Conference Agreement nor can the Federal Government be directed to act under sections 81 to 83 of the Ordinance in respect of any Liner Conference Agreement to which the respondents-shipping lines are a party as long as the said lines do not engage in coastal shipping. No findings have been given on objections raised by the local agent representing foreign Principals. I am, therefore, of the view that the matter is not hit by res judicate as the prayers in the suit and the prayers in the petition are totally different.
8. Indeed the plaintiff has raised an issue that the defendants are indulging in restrictive trade practice. As according to the defendants if that be so then there is a provision available in the said Ordinance by virtue of which relief can be sought and obtained including an interim relief.
9. I have gone through the Monopoly and Restrictive Trade Practice (Control and Prevention)
Ordinance, 1970 and have also looked at relevant sections mentioned in the application. Section 13 of the Ordinance deals with interim orders and section 14 deals with the special inquiry. Section 15 deals with the applicability of Code of Civil Procedure as well as Pakistan Penal Code.
10. From the above it is clear, that for all practical purposes a proper inquiry can be conducted and to that extent witnesses can be summoned and examined on oath. Notices for production of documents for the purposes of recording of evidence, the issuing of commission in the examination of witnesses, etc. Are applicable for the purposes of coming to a fair and just conclusion.
11. Indeed if the plaintiff is of the opinion that there has been a violation of the Ordinance, 1970, and its relevant sections then it would have been proper for the plaintiff to have exercised the jurisdiction mentioned in the Ordinance, 1970 and proceed accordingly.
12. The plaint clearly shows in its body that the shipping line and liner conference have got together and framed a sort of cartel and thereafter imposed a form of a tax under the name of war risk surcharge. In the body of the plaint sections 2 and 3 as well as section 6 of the Ordinance, 1970, have been mentioned in detail. An emphasis has been made that the said Ordinance prohibits undue concentration of economic power unreasonably monopoly power or unreasonably restrictive trade practices. In such circumstances the relevant sections of the Ordinance would come into play. However, what the plaintiff has failed to mention is that once it is claimed that there is an unreasonable restrictive trade practice and that there is a violation of section 3 then ipso facto section 11 would come into picture.
13. Accordingly, C.M.A. No, 1567 of 2002 is granted. The plaintiff should have availed all the remedies provided under the Ordinance, 1970 instead of filing this suit.
14. C.M.A. No, 1049 of 2002 is an application under Order XXXIX, rules 1 and 2, C.P.C. By virtue of the observations made hereinabove and the submission made in paragraph 4 of the affidavit to such application, it is clear that if it is alleged that the war risk surcharge being so levied is void and illegal, contrary to the provisions of Monopoly and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970, then seeking relief by way of a suit is not proper, especially when remedy is available under the Ordinance, 1970. In these circumstances, this application has become infructuous and is hereby dismissed.
15. Since in the other two matters namely Suit No, 176 of 2002 and Suit No, 189 of 2002, identical applications under Order VII, rule 11, C.P.C. Have been filed with identical counter-affidavits and rejoinders, therefore, the observations made hereinabove and the findings so arrived at would also be applicable to Suits Nos. 176 of 2002 and 189 of 2002.
16. The Suits bearing Nos. 175, 176 and 189 of 2002 along with aforementioned C.M.As. Stand disposed of in view of the above order.