NATIONAL INSURANCE CORPORATION Versus Messrs KUWAIT NATIONAL PETROLEUM CO.

ORDER

1. This is an application under Order I, Rule 10_ C.P.C. Facts giving rise to this application are that defendant No.1 consigned furnole oil on the Vessel m.v. "Atanutic Peace" The consignee was National Refinery Limited Karachi. It was insured with the plaintiff. The Vessel arrived at Karachi on 29‑10‑1985 and short landed the Cargo for which a claim of Rs.4,67,350/‑ was lodged against the Carrier which was repudiated. The plaintiff made payment of the claim to the consignee and has filed this suit against the consignor, the carrier and the agents of the consignor and carrier.

2. By this application under Order I, Rule 10, C.P.C. the plaintiff has sought to join M/s. Gokal Shipping and Trading Corporation Karachi, as a co- defendant because it was a necessary party being the agents in Pakistan of Defendants Nos.1 and 3.

3. Section 22 of the Limitation Act reads as under:‑

4. "22.(1) Where, after the institution of suit, a new plaintiff or defendant is substituted or added, the suit, shall, as regards him, be deemed to have been instituted when he was so made a party.

(2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made plaintiff."

5. The perusal of this provision would show that where a new defendant is added after the institution of the suit, the suit shall be deemed to have been instituted against him when he was made a party. There is consensus of decisions on the point that the relevant date will be the date on which the application for being made a party is presented. The cause of action even according to para.10 of the plaint accrued when goods were discharged at Karachi Port, on 2‑9‑1985, on 29‑6‑1986 when the claim was repudiated and finally on 7‑10‑1986 when letter of subrogation was executed in favour of plaintiff by the consignee. It was to be presumed that the goods ought to be delivered on that clay. Hence 7-10-1986 would be at the most the starting point of the period of limitation. Which is one year according to Art.31 of the Limitation Act, which reads as under:‑

6. "31. Against a carrier compensation For one year. When the for non‑delivery of, or delay goods ought in delivering Goods." to be delivered.

7. Reference in this connection may also be made to my decision in the: case of Yousuf and Co. v. Oriental Steam Co. (1,87 C L C 361) there it is held that limitation period of one year prescribed under Article 31 for institution of suit against carrier for compensation for short landing of goods would start either: from the date when Port Trust issued short landing certificate or whet, consignee's claim was finally repudiated. The, application for joining the proposed defendants was made on 22‑12‑1987. The suit is therefore, presumed to be instituted more than one year after the date when the cause of action had arisen as far as the proposed defendant is concerned.

8. Subsection (2) of section 22 of Limitation Act saves only those persons, on whom the interest devolves or to whom the interest is assigned after the filing of the suit and not the person who was a necessary party at the time when the suit was filed. According to sub‑rule (5) of Rule 10 of Order 1, C.P.C. read with section 22 of ti1c: Limitation Act, the suit against a necessary party which has been added subsequently will be deemed to have been instituted only upon service of summons of the application under Order I, Rule 10, C.P.C, Reference in this connection may be made to P L D 1982 S C 167, Hayat v. Ameer where it has been held that when a new person is substituted or added as a party in suit , already pending then the suit as regards it shall be deemed to have been instituted only from the point of time when he is so made a party. In the case under ruling the suit by the date when the newly‑added defendant was so added, had become time‑barred and therefore was dismissed. The matter went upto the Supreme Court and the Supreme Court upheld the order of dismissal of suit.

9. In the case of Mangomal Jethanand v. Arathmal Satramdas reported in 76 Indian Cases 119 Sind Judicial Commissioner's Court held that where the effect of an amendment is bringing on record a new plaintiff the amendment cannot be taken to date; back to the date when the suit was originally instituted. The amendment can only relate to the date on which the application to substitute, the plaintiff was made. Since that application was made after period of limitation, the suit was time‑barred. In the case of Chand Oil.kfills v. Muhammad Zikrya and Co. P L D 1958 (W.P.) Kar510 Waheeduddin Ahmed, J. held that a suit against the party, joined at later stage can be deemed to 1FYve teen filed on the date when he was so made a party to the suit. Where such date fell beyond the period of limitation, the suit yeas time‑barred against such person.

10. In this view of the matter the suit against the proposed defendant is time barred. It will have to be ultimately dismissed against him even if he is made a party.

11. Under these circumstances it will not be in the interest of justice to allow him to be joined as a defendant, and to make him to undergo; the expenses and trouble of a litigation, which will also result in waste of time and energy of the Court.

12. The application is therefore dismissed.

13. H.B.T./N‑102/K Application