PAKISTAN INTERNATIONAL AIRLINES CORPORATION KARACHI Versus MUHAMMAD YOUNUS

DORAB PATEL, J .-The respondent is the proprietor of a Watch Company, and he imported 1118 watches from Geneva in March 1962. The consignment, which weighed 43 Kgs. was flown by the appellant (P I Al from Geneva to Karachi. The plane, on which the consignment had been loaded at Geneva, landed in Karachi on the night of the 30th and 31st March 1962. But the appellant was not able to deliver the consignment. The air consignment note (Exh. 6/7) for the consignment was in the name of the Habib Bank, which had given a delivery order dated 2-4-1962 (Exh. 6/9) to the respondent to collect the consignment. But, as the consignment was not landed, it was not delivered ; therefore eventually the respondent's Advocate sent a notice to the appellant on 8-6-1962 (Exh. 6/21) calling upon it to pay compensation. However, by its reply dated 17-1-1962 (Exh. 6/24), the appellant offered to pay compensation only at Rs. 79 per Kgs. in accordance with rule 22(2) of the First Schedule of the Carriage by Air Act, 1934 (hereinafter called the said Act). As the respondent was not satisfied with this offer, he filed a suit against the appellant for the recovery of Rs. 68,716.64 as compensation for the loss caused to him by the loss of his consignment.

2. The respondent suggested in its plaint that the loss of the consign ment might have been caused by one Saheb Zar a loader of the appellant, and the suggestion is supported by specific allegations. Apart from this allegation, the plaint further stated that the plane, on which the appellant's consignment had been loaded, had not discharged its cargo "at the place of landing at Karachi Airport", but that it had been illegally removed without the permission of the Customs to a hangar, and the cargo had been unloaded at the hangar "in the absence of the freight officers of the Customs and the security staff and the goods were taken in open trolleys from P. I. A. hangar to the Customs for about half a mile, giving further chance for pilferage." Thus, the plaint contains specific allegations with full particulars of the breaches which, according to the respondent, the appellant had com mitted of its obligations under the said Act. But unfortunately, although the air consignment note (Exh. 6/7) was not in the respondent's name, the plaint does not explain, or, show how the respondent was entitled to file the suit.

3. The appellant in its written statement denied the allegations made against it by the respondent, and, for example, it even denied the respondent's allegation that the suspected thief Saheb Zar had absconded. Its defence was that the loss of the respondent's consignment "is a pure accident, which had been admitted at the earliest opportunity"; therefore its plea was that its offer of compensation at Rs. 3,397 was in accordance with rule 22 of the First Schedule to the said Act, and as the respondent had not accepted this compensation, the suit was only fit to be dismissed with compensatory costs. But it also advanced a legal objection in paragraph 19 of its written statement. As the Habib Bank had been shown as the consignee of the consignment under the air consignment note (Exh. 6/7), the plea of the appellant in para. 19 was that the "suit suffers from non joinder of parties. The real claimants are the Habib Bank Ltd., and not the plaintiff as the consignees are Habib Bank Ltd." Accordingly, the further plea was that no cause of action had accrued to the respondent.

4. On these pleadings, as many as twelve issues were framed. But the only two points, which require consideration, are whether the appellant was guilty of wilful misconduct within the meaning of rule 25 of the First Schedule of the said Act, and whether the respondent was entitled to file the suit. Now, as I pointed out, the respondent had not shown in his plaint how he was entitled to file the suit, but the appellant cross-examined him, in view of its express averments in paragraphs 19 and 20 of its written statement. And, in his cross-examination, the respondent denied that the Habib Bank was the consignee of the consignment and said: "The correct position is that Habib Bank was my agent. Accepting this -statement, the learned Single Judge, who heard the suit, held that the respondent was entitled to file the suit. Then, as to the question of wilful default, as I will presently show, the evidence produced by the appellant was hardly fit to be described as evidence and therefore the learned Single Judge held that the respondent had proved the appellant's wilful default. Accordingly, on the basis of the evidence of the loss suffered by the respondent, the learned Single Judge decreed the suit, as prayed. There fore the appellant filed a letters patent appeal, which was heard by us with the assistance of Mr. Saleem Akhtar, learned counsel for the appellant, and Mr. Afzal Nabi, learned counsel for the respondent.

5. I will first examine the question of the appellant's liability for the admitted loss of the respondent's consignment. As the flight was an ,international flight, the appellant's liabilities were governed by the said Act, ,the preamble of which reads:---

"An act to give effect in Pakistan to a Convention for the unification of certain rules relating to international carriage by air.

Whereas a Convention for the unification of certain rules relating to international carriage by air (hereinafter referred to as the Conven tion) was, on the 12th day of October 1929, signed at Warsaw;

And whereas it is expedient that Pakistan should accede to the Conven tion and should make provision for giving effect to the said Conven tion in Pakistan;

And whereas it is also expedient to make provision for applying the rules contained in the Convention (subject to exceptions, adapta tions and modifications) to carriage by air in Pakistan which is not international carriage within the meaning of the Convention;

It is hereby enacted as follows:----

.Section 2 of the said Act reads;----

"2. (1) The rules contained in the First Schedule, being the provisions of the Convention relating to the rights and liabilities of carriers, passengers, consignors, consignees and other persons shall, subject to the provisions of this Act, nave the force of law in Pakistan in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage."

Subsection (2) is also relevant to the arguments and it reads:---

"(2) The Central Government, may, by notification in the official Gazette, certify who are the High Contracting Parties to the Conven tion, in respect of what territories they are parties, and to what extent they have availed themselves of the Additional Protocol to the Convention, and any such notification shall be conclusive evidence of the matters certified therein."

Then, as to the First Schedule referred to in the subsection, rule 8 deals with the air consignment note. But as I am examining first the question of the respondent's wilful default, I may point out that, according to sub-rule (2) of rule 22, in the absence of a special declaration, the liability of an air, carrier for the loss of cargo is limited to 250 francs per kilogram, and both the learned counsel admitted that the appellant's offer of compensation at Rs. 79 per kilogram was in accordance with this sub-rule. However rule 25 reads:---

"25. (1) The carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the Court equivalent to wilful misconduct."

Reading rule 22, with rule 25, as the respondent has admittedly not made a special declaration, it is clear that he could succeed only if could bring hi case under sub-rule (I) of rule 25. And, as submitted by Mr. Saleem Akhtar, the burden of bringing the case under sub-rule (1) of rule 25 was on the respondent. However, as the appellant had the sole custody of the consign ment, it is required under section 106 of the Evidence Act to produce evidence about the manner in which it had dealt with the respondent's consignment from the time it had received it to the time of its loss.

6. With this observation, I would now examine the appellant's evidence and, to my surprise, it examined only three witnesses. The first witness, Mr. Khurahid Ali, was a Customs Officer, but, as he admitted in cross-examination that he bad nothing to do with the flight by which the respon dent's cargo had been flown, it is a little difficult to understand why the appellant examined this witness. However, his admissions in cross-examina tion are very important. the witness said in cross-examination "ordinarily the packages are always unloaded at the place where the aircraft is parked unless there are other circumstances to compel the removal of the aircraft to the hangar or any other place before unloading. In such cases permission is granted by the Superintendent of Customs on the application of the air lines". In view of the clear allegations in the plaint about the illegal removal of the plane to the appellant's hangar, and the admissions of its own witness, the appellant was required to prove to the hilt that its plane had been removed, even for unloading the cargo, to its own hangar with the permission of the Superintendent of Customs. Instead of examining the Superintendent of Customs or of producing his order, granting permission to the appellant to remove the plane to its hangar for unloading, the appellant examined only its Traffic Supervisor and its Station Manager. Its Traffic Supervisor, Mr. Siddiqui, stated that he was on duty when the plane landed at Karachi, and he further said that the luggage of the passengers was unloaded at the tarmac, but that the cargo was unloaded much later in the appellant's hangar. He, however, said that the plane had been sealed by the Custom Officers before it had been taken to the hangar. The witness appears to be an obliging witness, yet even he did not state that the permission of the Superintendent of Customs had been taken for towing the plane to the appellant's hangar before the unloading of its cargo. Mr. Saleem Akhtar, however, drew may attention to the witness's explanation for the removal of the plane to the hangar. The witness said that after passengers, luggage had been unloaded "P. I. A. Engineers arrived at the spot and desired to remove the aircraft to the hangar for some technical reasons. In view of it the Customs Officer sealed the aircraft and then I returned back to my office . . . . . . . . . . . . . ."

If the P. I. A. Engineers had been examined, their statements about the. reasons for the removal of the aircraft to the hangar might have been evidence. But the statements, on which Mr. Saleem Akhter relied, is not even admissible, because it is hearsay. Nor was the respondent required to cross-examine the witness on hearsay evidence. And, on the other hand, the failure oh the appellant to examine its own Engineers casts very great doubt on the veracity of its witness, Mr. Siddiqui and on the explanation given by him for not unloading the cargo of the plane at the tarmac.

7. Additionally, as Mr. Khurshid Ali was not the Customs Officer who had anything to do with the flight in dispute, the appellant should have examined the officers concerned. The appellant did not, but the respondent examined Mr. Karamat Ali, who was the Customs Officer on duty when the plane arrived. He said in evidence that the appellant had removed the plane from the tarmac without his permission, and that he "had reported to my department about the contravention of the Sea Customs Act committed by the Air Lines". In order to rebut this evidence, the appellant examined, a week later, Mr. Khurshid Ali, its Traffic Manager, who claimed to have read all the relevant papers and said that "no complaint of any kind was made by the Customs Authorities in connection with this aircraft . . . . . . . . . . . ." Mr. Salim Akhtar wanted us to prefer Mr. Khurshid Ali's statement to that of Mr. Karamat Ali, which is very damaging to the case of the appellant. But Mr. Khursid Ali was the appellant's employee, whilst Mr. Karamat Ali was a disinterested witness, and further as it was the appellant's duty to have examined Mr. Karamat Ali, I am very poorly impressed by its conduct is not doing so. Additionally, the respondent cross-examined Mr. Khurshid Ali on his statement that no complaint had been received from the Custom, and the witness admitted that a file was maintained about "show-cause notices received from the Customs Department". The witness did not produce the file and as the appellant did not take any steps, which, it could easily have taken, to produce this file, I agree with Mr. Afzal Nabi that Mr. Khurshid Ali's evidence is not fit to be accepted. And, I would recall here that according to the other Mr. Khurshid Ali of the Customs Department, who was also examined by the appellant, no plane can be unloaded at the hangar without the approval of the Superintendent of the s of the Customs Department. Therefore, the appellant was required to produce this approval and it was not enough for it to produce an obliging witness to state that no complaint bad been received from the Customs -Department, accordingly, in all the circumstances discussed, the respondent has proved that the unloading of its plane by the appellant at its own hangar was illegal and irregular.

8. As the appellant acted illegally, or, irregularly in taking a plane with cargo to its own hangar, it should have taken special precautions to prevent the possibility of theft, which was so obvious. Accordingly, it was required to give evidence of the special precautions taken by it. It, however, examined on this question only its Traffic Supervisor, Mr. Siddiqui, and it is clear from his evidence that no special precautions had been taken to guard the plane whilst it was in the hangar. Further, Mr. Siddiqui admitted that the plane bad been guarded by guards of the appellant as well as of the Customs, but these guards were not examined. Similarly, although Mr. Siddiqui admitted that the appellant had used "about seven loaders" for unloading the plane, the appellant did not examine any loader, and that despite the specific allegations of wilful misconduct made against it in the plaint, therefore, in view of the judgment of the Privy Council, in Dwarka narh Pai Mohan Chandhuri and others v. The Rivers Steam Navigadon Co.. Lid (AIR 1917 P C 173) I observed that the appellant's wilful misconduct stood proved by the fact that it deliberately withheld all the relevant evidence, which was in its exclusive possession.

9. Mr. Saleem Akhtar, however, thought that the evidence of Mr. 'Siddiqui was sufficient at least to prove that there had been no wilful default on the appellant's part. Now, this witness claimed to have seen the consignment whilst the plane was at the hangar. The witness then stated that the plane had been sealed by the Customs whilst it was on the tarmac, and be also claimed to have seen the Customs' seal on the plane when he went to see it in the hangar the next morning. On this evidence, Mr. Saleem Akhter invited us to hold that there had been no negligence on the appellant's part. As, the question turns on the veracity of the witness and his statement that the Customs' seal on the plane was intact when he went to the plane the next morning, it would be of interest to quote the precise statement made by the witness on the point; it reads: "After the documentation work was completed by me I had come out for the purpose of unloading but it could not be done then in the absence of Customs Officers. In fact I was prevented by the Customs guard who was there at the aircraft, from unloading the cargo. I know the procedure previously that cargo could not be unloaded in the absence of Customs Officers. I had made an attempt to unload the cargo `because of the presence of our security guard and the guard of Customs Department. I have found the Customs seal on the aircraft." I am astonished by this statement because the witness knew that the plane could not have been unloaded in the absence of Custom Officers. Why then did 'he go to have it unloaded? Again, the witness had stated in his examination in-chief that the unloading of the plane had started at about 6-30 a. m. but in his cross-examination he said that it had started at about 8-30 a. m. He, however, emphatically denied in his cross-examination the suggestion that the unloading of cargo had begun at 10-00 a.m. But, according to ,the passage of his cross-examination, which I quoted, he had found the Customs' seal on the aircraft intact when he went to the plane after completing his documentation work. But in his examination-in-chief, the stated; "I completed the documentation work at about 10-5 a. m." Now, if this statement be true, it means that the witness's denial of the allegation that unloading bad started at 10-00 a. m. was false.

10. Additionally, the plaint contained express allegations against the loader, Saheb Zar; therefore the respondent was interested in proving that the unloading of the plane had commenced after Saheb Zar came on duty, whilst the appellant was interested in denying this allegation. Mr. Siddiqui admitted that Saheb Zar had come on duty at 8-00 a.m. therefore his statement in his examination-in-chief that the unloading had started at about 6-30 a. m. was false, and the witness had obviously made this false statement on account of the specific allegations in the plaint against the loader Saheb Zar. In all the circumstances discussed, I agree with the trial Court that this witness was not a witness of truth, yet the appellant did not examine the Customs Officers, who had supervised the unloading of the cargo at the hangar nor did it even examine, its own officers, who had the responsibility for unloading the plane at the hangar. Further, it neither examined Saheb Zar, nor did it give any explanation of its failure to examine him, and despite the specific allegations in the plaint about the manner in which cargo had been taken from the hangar to the Customs, shed, it did not produce any evidence of the cars taken by it in taking a the cargo from the hangar to the Customs, shed; therefore an adverse inference had to be drawn with regard to each allegation of misconduct against it in, the respondent's plaint, and this can only' lead to the conclusion that appellant had been in total breach of its duties as bailee.

11. Mr. Saleem Akhtar, however, relied on paragraph 25 of the First Schedule to the said Act under which except for the nominal amount for which it admits liability, an airline can be liable only if cargo is lost on account of its wilful misconduct. Now, according to learned counsel, even though the appellant had not produced any evidence to show that it had taken any care of the cargo in its custody, this was not sufficient to prove wilful misconduct within the meaning of rule 25. But it is not learned counsel's case that the appellant is managed by a board of lunatics, and, as the evidence can only lead to the conclusion that the appellant had disregarded all elementary precautions, its conduct amounted to reckless indifference to its obligations as a carrier; therefore the respondent had proved his allega tions of wilful misconduct by the appellant. Learned counsel's only reply was to refer us to a judgment of a learned Single Judge of the Queen's Bench Division reported in Horabin v. British Overseas Airways Corporation ((1952) 2 All E R 1016) Accordingly, I would now examine that case.

12. The defendant in the case cited, as in the instant case, was an airline, and the claim was for damages caused in an air-crash. The case was tried by a Jury, and it would appear from the address,, of Barry J., to the Jury that the plaintiff' had made specific allegations of misconduct against the pilot of the plane, the allegations being that the pilot had violated rules for the safe navigation of aircraft, and Mr. Saleem Akhtar referred me to a passage in the address of the learned Judge at page 1019 which reads:-

"Wilful misconduct is misconduct to which the will is a party, and it is wholly different in kind from mere negligence or carelessness, however gross that negligence or carelessness may be. The will must be a party to the misconduct, and not merely a party to the conduct of which complaint is made. As an example, if the pilot of an aircraft knowingly does something which subsequently a Jury finds amounted to misconduct, that fact alone does not show that he was guilty of wilful misconduct. To establish wilful misconduct on the part of this imaginary pilot, it must be shown, not only that he knowingly (and in that sense wilfully) did the wrongful act, but also that, when he did so, he was aware that it was a wrongful act, i.e., that he was aware that he was committing misconduct." I cannot agree with this statement of the law, because a disregard of safety regulations can amount to wilful misconduct, if the disregard is so gross as to indicate that the pilot was recklessly indifferent to his duties, and, in view of the further observations of the learned Judge at page 1025, it seems to me that this was also his view. In any case, that has been the consistent view of the English Courts. Thus, for example, in Lewis v. The Great Western Railway Company ((1878) 3 Q B D 195) Brett, L. J. observed that if a person "does, or omits to do something which everybody must know is likely to endanger or damage the goods, then it follows that he is doing that which he knows to be the wrong thing to do." Similarly. Cotton, L. J. observed with reference to wilful misconduct: "there must be the doing of something which the person doing it knows will cause risk or injury, or the doing of an unusual thing with reference to the matter in hand, either in spite of warning or without care, regardless whether it will or will not cause injury to the goods carried or other subject-matter of the transaction," whilst Lord Alverstone, C. J., pointed out in Forder v. Great Western Railway Company ((1905) 2 K B 532) that wilful misconduct by a person would include "acts with reckless carelessness, not caring what the results of his carelessness may be."

13. Now in the instant case, as I explained, the necessary inference from the appellant's failure to produce evidence is that it bad acted "with reckless carelessness," therefore its wilful misconduct is proved. But, as the Habib Bank, and not the respondent, was the consignee of the air consignment note (Exh. 6/7), the appellant's further plea is that only the: Habib Bank was entitled under the rules of the said Act to file a suit for the loss of the consignment, and I mould now examine this plea.

14. The rules about air consignment notes are contained in rulers 5 to 16 of the first schedule of the said Act, and rule 5 confers a right on the contracting parties, namely, the consignor and the carrier, to demand from each other an air consignment note. The rule further prescribes that the contract of carriage is to be governed only by these rules. The next two, rules are not relevant. Rule 8 prescribes the particulars which must be set out in an air consignment note. Rule 9 reads:----

"9. If the carrier accepts goods without an air consignment note having been made out, or if the air consignment note does not contain all particulars set out in rule 8 (a) to (i') inclusive and (q), the carrier shall not be entitled to avail himself of the provisions of this Schedule which exclude or limit his liability."

Rules 10 and 11 deal with the evidentiary value of the particulars declared in an air consignment note. Rule 12 reads as follows :---

"12.-(1) Subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of they goods by withdrawing them at the aerodrome of departure or destina tion, or by stopping them in the course of the journey on any landing, or by calling for them to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air consignment note, or be requiring them to be returned to the aerodrome of departure. He must not exercise this right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right."

Sub-rules (2) and 3 are not relevant, whilst sub-rule (4) states that the con signor's right "ceases at the moment when that of the consignee begins in acc ordance with rules 13. Rule 13 reads as follows:---

"13- (1) Except in the circumstances set out in rule 12, the consignee is entitled, on arrival of the goods at the place of destination, to require the carrier to band over to him the air consignment note and to deliver the goods to him, on payment of the charges due and on complying with the conditions of carriage set out in the air consign ment note.

(2) Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the goods arrive.

(3) If the carrier admits the loss of the goods, or if the goods have not arrived at the expiration of seven days after the date on which they ought to have arrived, the consignee is entitled to put into force against the carrier the rights which flow from the contract of carriage"

This right of the consignee "to put into force against the carrier the rights which flow from the contract of carriage" necessarily includes the right to file a suit. This is a departure from the principles of the Contract Act, because the consignee is not a party to the contract of carriage, but it does not help the respondent's case, because the respondent is admitted not the consignee under the air consignment note (Exh. 6/7). Mr. Afzal Nabi, however, submitted that the consignment had been imported for the respondent's benefit. That may be so, but no right is conferred under the rules on persons other than the consignee, even though such other persons may be as interested in a consignment as the consignee. And further, because the respondent was not a party to the contract contained in the air consign ment note (Exh. 6/7), he has to prove that the law had conferred upon him the right to sue the appellant. But as Mr. Afzal Nabi was not able to show from the said Act, or, from any other statute that the respondent was entitled to file the suit under appeal, he submitted that the respondent' position was similar to that of the holder of a bill of lading under the Bills of Lading Act, 1856; therefore the further submission was that the rights of parties under the said Act were the same as those under the Bills of Lading Act, 1856.

15. The submission assumes that these two statutes are similar, if no in pari materla. but I regret to say that this assumption is totally erroneous. In the first place, the rules under the said Act are comprehensive compared to the three short sections of the Bills of Lading Act. Secondly, as is clear from its heading, the Bills of Lading Act was "an Act to amend the law relating to bills of lading," and the law of bills of lading had been built up over the generations, but the carriage of goods by air was almost in its infancy when the said Act was passed; therefore its provisions are more comprehensive, and, at the same time, the custom of merchants, which is relevant to the construction of the Bills of Lading Act, is not relevant to the right under the said Act. Then, as to the rights conferred, the preamble .of the Bills of Lading Act reads;-

"Whereas by the custom of merchants a bill of lading of goods being transferable by endorsement, the property in the goods may thereby pass to the endorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property . . . . . . . ."

Accordingly, section 1 expressly confers the right to sue both on the consignee of goods named in a bill of lading and on every endorsee of a bill of lading to whom the property in the goods has passed. Ignorance cannot be attributed to the Legislature, and, if the Legislature had so wished, it could have prescribed that the air consignment note was negotiable in the limited sense in which a bill of lading is and conferred the right to sue on its holders. It did not. Instead, it extended the right to sue only to the consignee, and, in my humble opinion, to extend the right to any other person on a plea of hardship would be to defeat the clear intention of the Legisla ture.

16. Mr. Afzal Nabi feebly submitted that the rights of persons really interested in a consignment would be defeated unless it was held that such persons were entitled to sue the carrier. But the language of the said Act is plain and must be given effect to. Further learned counsel's assumption, that the Legislature had overlooked the rights of parsons interested in a consignment, such as the respondent, is also erroneous and is contrary to the plain language of the next two rules. Rule 14 reads :---

"14. The consignor and the consignee can respectively enforce all the rights given to them by rules 12 and 13, each in his own name, whether he is acting in his own interest or in the interest of another, provided that he carries out the obligations imposed by the contract."

The words "whether he is acting . . . . . . . in the interest of another" are wide enough to include a suit filed by a consignee on the instructions of some other person interested in the consignment. And, for example, the Habib Bank could, in the instant case, have filed the suit under appeal for the benefit of the respondent, but on the plain language of the rule, this suit too could have been filed by the Habib Bank only in its own name, and at the same time, this direction, that the consignor, or, the consignee may file the suit "each in his own name," clarifies that the rules confer the right to sue the carrier only on the consignor and the consignee.

17. Rule 15 makes the position even more clear. It reads:--

"15. (1) Rules 12, 13 and 14 do not affect either the relations of the consignor or the consignee with each other or the mutual relations of third parties whose tights are derived either from the consignor or from the consignee.

(2) The provisions of rules 12, 13 and 14 can only be varied by express provision in the air consignment note."

As the respondent was admittedly not the consignor of the consignment, be can only contend that his rights are derived from the Habib Bank, and sub-rule (1) expressly saves the rights of persons in this position. However, it also clarifies that such persons do not have a right to sue the carrier, but have to make other arrangements to enforce their rights. Finally, as rule 16 relates to the information to be supplied "to meet the formalities of customs, octroi; or police. it is not relevant. Therefore, the respondent's, case is clearly not supported by the rules, and it is also contrary to the Contract Act; accordingly I agree with Mr. Saleem Akhtar that the respondent was not entitled to file the suit.

18. Mr. Afzal Nabi.'s reply was that, although the Habib Bank was described as the consignee under the air consignment note (Exh. 6/7), it had only acted as the respondent's agents, and the learned Single Judge had accepted this claim, and decreed the suit against the appellant. But the question, whether the Habib Bank was the respondent's agent, was a question of fact, which had to be pleaded, and further in his examination-in-chief the respondent had only said that he bad imported and paid for the missing con signment. This, by itself, would not mean that the Habib Bank was his agent and the claim, that the Habib Bank was his agent vague as it is, was advanced, for the first time, in cross-examination; therefore in all the circumstances discussed, the claim was not fit to be believed, and, in my humble opinion, the learned Single Judge erred in believing it and in decreeing the suit in consequence.

19. Mr. Afzal Nabi then referred us to the air consignment note and pointed out that, immediately after the statement, that the cargo in question was consigned to the Habib Bank, there was a further statement, which read: "also notify Messrs Moulana Watch Co". As Messrs Moulana Watch Co., is the name under which the respondent carries on business, learned counsel's submission was that the statement quoted was sufficient to indicate that the respondent was the real consignee. This submission too must be rejected, because we cannot read into the air consignment note (Exh. 6/7) what is not stated in it. But, according to Mr. Afzal Nabi, as banks imported goods for their customers, the appellant should have inferred from this reference to the Moulana Watch Company that the respondent was the real consignee under the air consignment note (Exh. 6/7). The argument must be rejected for more reasons than one. In the first place, apart from the question of pleadings, the expression 'real consignee' is unknown to the rules, and in any case, how was the appellant to know who was real consignee? Mr. Afzal Nabi thought the matter was simple, because the Habib Bank had not paid for the consignment. As the Habib Bank had not been examined, we are being invited to assume that the Habib Bank had no claim against the respon dent, but, even if this be true, how could the appellant know about it? Even Mr. Afzal Nabi did not contend that banks answer enquiries from strangers about the credits of their customers; therefore, even if the appellant knew that the consignment had not been imported by the Habib bonk for its own use, how was it to know that, for example, the consignment was not subject to a pledge in favour of the Habib Bank? And, on the other hand, in my humble opinion, the object of these rules is to relieve the carrier of any obligation to enter into disputes about the ownership of the consignment Hence the direction that the rights conferred by the rules are to be enforced by the consignor or by the consignee "each in his own name".

20. Mr. Afzal Nabi's next submission was that the appellant had accepted the respondent as the consignee in its correspondence with the respondent, and, in support of this submission, learned counsel referred us to the respondent's letter of 3-4-1962 (Exh. 6/13) complaining to the appellant about the missing parcel. But, unfortunately for the submission advanced, I find that the appellant did not even acknowledge this letter. Mr. Afzal Nabi next referred us to the Habib Bank's letter (Exh. 6/9), which he described as a delivery order to the appellant. But a delivery order is issued to a carrier only when the person authorised to take delivery is not entitled to do so under the relevant documents; therefore the letter, or, delivery order, whatever it may be, goes against the respondent's claim. Again, whilst the appellant did not care to answer the respondent's complaint about the missing consignment, the appellant had informed the Habib Bank, by its letter of 10-4-1962 (Exh. 6/14), that it was trying to trace the parcel. It is true that it sent a copy of this letter to the respondent also, but what is much more signifi cant is that the claim for the missing consignment was lodged with the appellant by the Habib Bank by its letter of 23rd May 1962 (Exh. 6/19), and the Habib Bank, by this letter, called upon the appellant to "pay us the amount claimed, so that we may remit the same to the importers". Thus, at the highest, the correspondence is equivocal, and it cannot possibly be said that the appellant acknowledged the respondent's alleged title.

21. Mr. Afzal Nabi then referred us to a judgment of the Privy Council in The Louisiana and other Ships (1918 A C 46). The cause cited is completely irrelevant, because it turned on the construction of Orders-in-Council for the confiscation of enemy cargo during the First World War.

22. Finally, Mr. Afzal Nabi submitted that, if we were of opinion that the suit should have been filed by the Habib Bank, we should, in the exercise of our discretion under Order 1 Rule 10 of the Civil Procedure Code, direct the Habib Bank to be impleaded as a plaintiff in the suit. But the respondent does not belong to the class of persons, such as widows and orphans to whom Courts of equity have always extended protection, and, in any case, the claim that it was a fit case for the exercise of our powers under Order 1 Rules 10 of the Civil Procedure Code was based on the assump tion that a suo moto order by the Court would enable the respondent to overcome the bar of limitation. In the first place, even on the assumption that the question is of limitation, the submission is contrary to the view of the Judicial Committee in V. P. R. Y. Chockalingam Chetty v. Seethal Ache and others (AIR1927PC252). Secondly, learned counsel assumed that the question was only of limitation, but rule 29 of the rules of the schedule to the said Act o reads:----

"29. The right of damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. "

'The word "extinguish" is to be found in section 28 of the Limitation Act, and the period prescribed under this rule for filing a suit is a period of prescription, which expired more than a decade ago; so I do not see how we can possibly entertain learned counsel's request.

23. In the result, I would allow appeal, set aside the judgment of the earned Single Judge and dismiss the suit of the respondent, but without any costs.

M. A. RASHID, J.- I agree.

S. A. H. Appeal allowed.