1. ' S. ALI ASLAM JAFRI, J.---Since common question of law and identical facts are involved in these two Constitution petitions calling in question the order 15-1-2002 passed by the learned District Judge, Karachi-West, dismissing Civil Revision Applications Nos. 35 of 2001 and 40 of 2001 preferred by the petitioner/ Defendant No.2 against the orders of IlIrd Senior Civil Judge, Karachi-West, holding the service upon defendant No.1 good through defendant No.2; hence we propose to dispose of both these petitions by this common order.
2. The facts in brief appear to be that plaintiffs in both suits filed suits for recovery of certain amounts calculated in United State Dollars as damages with costs and-interest/markup, etc. Against the petitioner who is a shipping agent and his principal viz. Defendant No.1, in each suit for certain losses sustained by them due to hort landing of the goods/palm oil imported by the plaintiffs. Since the address of defendant No.1 was not within the knowledge of the two plaintiffs hence they were sought to be served through their agent, the Defendant No.1, and for the said purpose an application under section 152, C.P.C. Was filed. The said application was resisted by the petitioner on the ground that he is not agent of the defendant No.1 and, as such, not liable to accept summons on behalf of the said defendant.
3. ' The learned trial Court after considering the arguments advanced on behalf of the parties and the law referred in the matter held the service good. The said orders were assailed through. Two revision applications filed by the petitioners which were dismissed by the learned District Judge, Karachi-West, vide order, dated 15th January, 2004.
4. ' We have heard Mr. A.R. Akhtar, Advocate for the petitioner in both the petitions, Mr. Mazhar Imtiaz Lari, Advocate for respondent No.1 in each petition.
5. ' It has been mainly urged by Mr. A.R. Akhtar, learned counsel for the petitioner, that petitioner is not a recognized agent of defendant No.1 within the meaning of Order III, rule 2, C.P.C. As he is neither attorney of the said defendant nor carries on business for and in the name of defendant No.1.
6. Learned counsel has referred to provisions of Order V, rules 9, 12 and 13, C.P.C. To show that petitioner was an agent of said defendant for a limited purpose and, as such, service cannot be effected upon him on behalf of defendant No.1. Learned counsel has also referred section 55 of the Customs Act to show that the extent of the liability of an agent, which according to the learned counsel has been discharged by the petitioner after unloading of the goods from the vessel which has left the shore long back. In support of this contention learned counsel has referred to the case of Alliance Insurance Company Limited v. Burjorjee and Co., Karachi and others (PLD 1977 Karachi 765).
7. On the other hand, Mr. Mazhar Imtiaz Lari, learned counsel for respondent No.1 in each petition, has argued that orders passed by the two Courts below do not suffer from any illegality, material irregularity or jurisdictional error, so as to justify interference by this Court in its Constitutional jurisdiction. Learned counsel has further argued that petitioner has not come to the Court with clean hands as the defendant No.1 in each case despite being party in the suit was not joined as a party either as petitioner or pro forma respondent in revision before the District Judge or even in these petitions. Mr. Lari has further argued that it has been done deliberately and intentionally by the petitioner as he does not want to disclose the address of his principal/defendant No.1 in each case though being their agent he must be fully aware of the same. Learned counsel has further argued that under rule 13(i) of Order V service on agent by whom defendant carries on business is a valid mode of service of summons. In support of such contention that in a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service, learned counsel has placed reliance on the case of Trading Corporation of Pakistan v. Intercontinental Oceanic Enterprises Corporation and 2 others (2000 CLC 1892) which reads as follows:-- "The question, as to who is the carrier of the consignment is not free of ambiguity, moreso because the consignee usually is not in position to ascertain as to who is in fact the carrier. Under the Hague Rules, which is applicable to consignment in both the suits before me, the "Carrier" as per Article 1(a) thereof includes the owner of the character who enters into a contract of carriage with a shipper. The responsibilities of carrier as per Article 2 are as follows:-- "Article 2. Subject to the provisions of Article 6, under every contract of carriage of goods by sea the carrier, in relation to the loading, handling, stowage, carriage, custody, care and discharge of such goods shall be subject to the responsibilities and liabilities and entitled to the rights and immunities hereafter set forth."
8. ' The above definition would clearly show that the carrier of the consignment does not have to be the owner of the vessel and it is the carrier who is responsible for any loss or damage to the consignment since he is responsible for the cargo from the time of loading till discharge of the cargo. When a vessel arrives at Karachi and the consignee manages to retire the Bill of Lading from the Bank, it is only then that the consignee has the opportunity to learn the identity of the carrier i.e. The one who issues Bill of Lading. Occasionally the name of the carrier is mentioned in the letterhead of the Bill of Lading, but more often than not it bears the name of either the charterer or the managing agents of the owners or characters. If the consignment is shortlanded or is damaged then obviously the consignee has a claim against the carrier but when he or his underwriter chooses to initiate legal proceedings against carrier, the only person he knows definitely to be connected with the carrier/vessel is the shipping agent who enters the vessel in Port of Karachi and who issues the delivery order for the consignments. If the Bill of Lading indicates the name of party in the letterhead then he invariably impleads him as a defendant in the proceedings mid then by way of abundant caution and also in view of the provisions of section 55 of Customs Act, 1969, he impleads the local Shipping Agent as well. In their anxiety not to leave out the person who would be liable for the claim, often the consignees or their subrogees decipher names of same party or the other from the shipping documents whom they regard to be the owner and thus implead them as well. It is obvious that this leads to proliferation of defendants and yet consignee is not sure as to who is truly responsible for the alleged loss. If the assumptions of the consignee in this regard are wrong, it gives an opportunity to the parties so impleaded to deny their liability. All this unnecessarily burdens the Court because notices have to be served on parties who are unconcerned with the carriage and usually operate from tax havens and have no fixed address and thus, initial service is delayed unnecessarily. Seemingly, this is an exercise in futility because the fact remains that it is the Shipping Agent who enters vessel in the port and then comes forward to defend the vessel, as instructed by the principal, who is the person actually responsible for the consignments. I, therefore, feel that once a vessel reaches the port with the cargo and delivery order is issued by the Ship Agent the actual identity of the carrier becomes irrelevant insofar as the Consignee/Subrogee is concerned. In the final analysis it is not the ship Owners/Charterers who contest the claim. It is in fact the protection and Indemnity Clubs popularly known as P&I Clubs, who are akin to, but not quite, an insurance company and insure the third party liability of ship onwer/carrier, that contest the claim behind the scenes on behalf of the ship owners/charterers.
9. ' Thus, true identity of the carrier is of no concern to the consignees for his claim is against carrier, whosoever it might be. Since invariably the carrier is the principal of the ship agent who enters the vessel in the port I hold that it would be sufficient if the consignee/subrogee while suing the carriers merely mentions as primary defendant. "The carrier carrying the consignments on board MV----, to be served through the ship agent (who enters the vessel in port)" and the ship agent himself as the second defendant and thus service on the local agent would constitute service on the carrier also. Later the ship agent can be asked to disclose the identity of the principal/carrier as per law and then his name can be included in the title to the plaint."
10. ' We have given due consideration to the contentions of the learned counsel for the parties and examined the relevant provisions of law with their assistance. We find much force in the observations made by the learned Single Judge in the cited cases. Moreover, we find some inherent defects in these petitions. Firstly, it is the order of the District Judge passed in revision which has been called in question in these petitions but the order passed by the learned trial Court has not been assailed. Secondly, we find that petitioner has not come to this Court with clean hands as he does not want to disclose the address of Defendant No.1 which is evident from the fact that the Defendant No.1 in each case was not made a party in the revision applications before the District Judge or even before this Court. No other view of the matter can be taken but to hold that the petitioner is trying to suppress the facts. During the hearing of these petitions we had asked the learned counsel for the petitioners to disclose the address as of Defendant No.1 so as to enable the respondents/plaintiffs to get summons issued on that address directly as well, but the learned counsel avoided to do so. Though, the petitioner wants equitable relief in his favour but does not appear to be ready to act himself in an equitable manner. It is well settled that he who seeks equity must do equity. We are, therefore, of the considered view that there is no justification whatsoever for this Court to exercise its Constitutional jurisdiction under the fact and circumstances of this case.
11. It was in view of the above stated factual and legal aspect of the matter that we had dismissed these Constitution petitions in limine alongwith the listed application through short order passed on 17-2-2004 and the foregoing are the reasons for the same.