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Second Appeal No. 96 of 1979, decided on 17th April, 1986.

---Art. 31--Limitation--Suit against carrier (Vessel) for recovery- Claim of plaintiff based upon short landing of consignment--Suit was to be filed under Art. 31 of Limitation Act within one year when goods ought to be delivered--Expression 'ought to be delivered' appearing in Art. 31 has reference to date on which consignee had notice that goods could be delivered to him--Suit by plaintiff /appellant not brought within one year from date when short-landing certificate was issued by Port Trust, suit was clearly beyond time--Order of Courts below rejecting claim of appellant maintained.

---S.100--Second appeal--Scope--Suit for recovery--Alternate plea--In suit against carrier for recovery of compensation for loss/non-delivery of consignment by carrier no alternate plea was taken by appellant plaintiff with regard to admitted liability of respondent-defendant and same was, therefore, not considered by Courts below--Alternate plea taken by appellant at stage of second appeal, held, could not be considered.

---Art.31--Limitation--Extension of time--Agreement between parties for extension of period of limitation not binding--Where extension was agreed to by respondent/ defendant without prejudice to their rights, such extension, held, could not help plaintiff-appellant in any manner.

Deutsche Dampschifffaharts-Gesellschaft and another v. Central Insurance Co. Ltd. P L D 1975 Kar. 819 rel.

A. Rauf for Appellant.

Naseemuddin Shaikh for Respondent.

Date of hearing: 17th April, 1986.

This Second Appeal under section 100 of the Civil Procedure Code is filed by the Plaintiff /appellant against the two concurrent Judgments of the Courts below.

The appellants instituted Suit No. 2445/1971 on the basis of letter of subrogation issued in their favour by the consignee, for recovery of a sum of Its. 9, 210.85 against the respondent on account of short-landing of a consignment, which arrived at Karachi on 5-9-1969 by s.s. "BAGH-E-DACCA" from Hamburg, Germany. The suit was resisted by the respondents on two-fold grounds, namely, that their liability under a bill of lading was limited to L. 100, which is equivalent to Rs.1,143.00, and secondly the suit was barred under Article 31 of the Limitation Act. Both the Courts below came to the conclusion that the suit instituted by the Plaintiff was beyond limitation, and accordingly the claim of the Plaintiff /appellant was rejected.

Mr. A. Rauf, learned counsel for the appellant condents that the Courts below fell into error by holding that the suit is governed under Article 31 of the Limitation Act. According to the learned Counsel, the Respondents having admitted their liability to the extent of 100 under the bill of lading, the only question before the Courts below was, whether the Plaintiff is entitled to 100, or, any other amount. On these premises, it is contended by the learned counsel that the suit should fall under Article 48, or, Article 49 of the Limitation Act. Alternatively, it is contended by the learned counsel that the respondent having extended the period of limitation up to 4-9-1971, the period of one year should be counted from the said date and, as such, the suit instituted by the Plaintiff was within time. After hearing the learned Counsel for the parties at length, I am of the view that the suit has been rightly dismissed by the Courts below as time barred. The admitted position in the case is that the ship arrived at Karachi on 5-9-1969. The cargo was also discharged in the custody of the Karachi Port Trust on 5-9-1969. The short-landing of one case was confirmed by the Karachi Port Trust on 25-8-1970 (Ex. 8). Both the Courts below held that the last extension granted by the respondents expired on 4-9-1969, and, therefore, the suit should have been instituted either on 4-9-1971, or, before that date. It is an admitted position that, after short-landing of the consignment was confirmed by the Karachi Port Trust, the parties entered into correspondence with regard to the short landed package, and, by letter, dated 30th of October 1970, the respondents admitted their liability in respect of the missing package only to the extent of 100. Under Article 31 of the Limitation Act, a suit against the carrier can be brought within one year when the goods ought to be delivered. The expression "ought to be delivered" has been interpreted in a large number of cases, and I also had the occasion of considering the same in the case of NATIONAL INSURANCE CORPORATION V. PAKISTAN NATIONAL SHIPPING CORPORATION (1985 C L C 360). It is well settled that the expression "when the goods ought to be delivered" has reference to the date on which the consignee had notice that the goods could not be delivered to him. In the present case, the short landing certificate was issued by the Karachi Port Trust on 25-8-1970, and therefore the period of limitation for filing a suit against the respondents under Article 31 of the Limitation Act started on this date. The suit having been instituted on 14th December, 1971 was, therefore, clearly beyond time. The contention of Mr. A. Rauf, learned counsel for the appellant is that in the present case Articles 48 and 49 will be applicable, as the respondents had admitted their liability to the extent of .100, and therefore, the dispute with regard to the non-delivery of the consignment was over. I am unable to accept this contention of the learned counsel for the simple reason that, inspire of the admission of the liability by the respondents, the suit still remained one for recovery of compensation for non-delivery of the goods by the carrier, and, therefore, for all purposes, it was a suit filed by the Plaintiff for recovery of the amount against the respondent as a carrier for non-delivery of the goods. The alternate contention of Mr. A. Rauf learned counsel for the appellant is that, in view of the admission of the liability by the respondents to the extent of 100, the Court should have at least decreed the suit to that extent, instead of dismissing the same in toto. From the frame of the suit, it is quite clear that it was instituted for the recovery of compensation for loss/non-delivery of the consignment by the carrier. There is no alternate plea in the suit with regard to the admitted liability of the defendant/respondent, and therefore, such an alternate case could not have been considered by the Courts below. It is not possible to consider this case at this stage, as no foundation for this case was laid by the appellants/plaintiffs before the two Courts below.

Mr. A. Rauf, learned counsel for the appellant also raised another contention that, as the period of limitation was extended by the respondent up to 4-9-1971, the period prescribed under Article 31 of the Limitation Act should be counted from that date and, as such, the suit instituted by the plaintiff was within time. This contention is also without any force. Firstly, in view of the decision in the case of DEUTSCHE DAMPSCHIFFFAHARTS-GESELSCHAFT and another Vs. Central Insurance Co. Ltd (P L D 1975 Karachi 819), such an agreement between the parties for extending the period of limitation is not binding and secondly this extension was agreed to by the respondents without prejudice to their rights and, as such, it could not help the Plaintiff /appellant in any manner. There is no merit in this appeal, which is accordingly dismissed, but, in the circumstances of the case, I will make no order as to costs.

M.Y.H./P-16/K Appeal dismissed.

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