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2000 M L D 1454

 

[Karachi]

 

Before Rasheed Ahmed Razvi, J

 

SHAHANSHAH HUSSAIN ‑‑‑Plaintiff

 

Versus

 

Messrs THAI AIRWAYS INTERNATIONAL LIMITED‑‑‑Defendant

 

Suit No. 1011 of 1989, decided on 1st December, 1999.

 

 

S.M. Alain for Plaintiff.

 

Khalid Anisur Rehman for Defendant.

 

ORDER

 

This is a suit for claim of damages in sum of Rs.11,88,817.70, on the grounds, inter alia, that due to the acts of defendant, the plaintiff was not able to reach his final destination i.e. Tokyo within time and for that he suffered pecuniary loss.

 

On 3‑11‑1999, when this case was fixed for recording of evidence, it was noted that issue No. 1 pertains to the question of limitation as provided under rule 29 of the Schedule of the Carriage by Air, (International Convention) Act, 1966. It was decided by consent that on the contents of the plaint as well as on the basis of documents filed by the plaintiff, this legal issue by argued first. Therefore, they were directed to argue this point before recording of evidence. I have heard Mr. S.M. Alain, Advocate for the plaintiff and Mr. Khalid Rehman, Advocate, for the defendant.

 

In the plaint it is claimed that the plaintiff is a reputed business man and involved in the business of import and export; that in the month of July 1986 the plaintiff under took a business trip for which he obtained ticket bearing No.217‑4404‑210/761‑762 from Karachi to Tokyo via Bagkok of the defendant’s airline; that on 18‑7‑1986 the plaintiff took flight No.TG‑508 of the defendant’s air line and reached Hong Kong via Bangkok. However, as alleged in the plaint the defendant was not given onward booking to Tokyo on the ground that there is no flight operation of the defendant’s air line between Hong Kong and Kokyo. This created row between the parties for which the plaintiff had to stay in the Hotel at Hong Kong till 28‑7‑1986, whereafter he had to buy a fresh ticket and reached Tokyo, instead waiting for a reply or endorsement from the Karachi office, as claimed in para. 4 of the plaint.

 

It is further the case of the plaintiff that due to this delay in giving connecting flight for Tokyo, on the part of defendant, he was not able to restore his business contacts. Therefore, he suffered huge monetary losses. Details of such losses have been given in paragraphs 5 and 6 the plaint. Since the question of delay in filing this suit is involved, it would be relevant if paragraph No. l I ,of the plaint is reproduced:‑‑

 

” 11. That the cause of action arose to the plaintiff against the defendant, firstly on 14‑7‑1986 when the defendant issued ticket for Karachi‑Hong Kong‑Tokyo, to the plaintiff knowing that it is not operating any flights Hong Kong‑Tokyo Sectors, and when the plaintiff had to stay at Hong Kong due to wrong route ticket issued by the defendant, and the defendant did not make any endorsement on the ticket for any other airlines, and when the plaintiff after a weeks time arranged to purchase fresh ticket on cash basis for Hong Kong‑Tokyo and vice versa, and when the defendant office at Hong Kong detained the plaintiff unnecessarily at Hong Kong, and did not manage for the onward journey with any airlines, thereby causing severe financial loss to the plaintiff as the plaintiff could not contact the parties who had left the place, due to late arrival of the plaintiff at Tokyo, and then Hong Kong and then the plaintiff wrote letters to the defendant of their negligence and fault, they admitted the same and did not settle the claim, and when the plaintiff issued legal notice to the defendant to pay compensation and damages, the defendant again admitted their fault and refused to pay any compensation through the reply of their Advocate, and continue to remain within the jurisdiction of Police Station Saddar, Karachi, which is within the jurisdiction of this Honourable Court . . . . . . . . . . . “

 

It was argued by Mr. Khalid Rehman that the air tickets obtained by the plaintiff were not endorseable, therefore, he was not entitled to travel on any other airlines except on the airline of the defendant. He has referred to the contents of the plaint and contended that in order to determine the question of limitation the time is to be reckoned from the date of 28‑7‑1986 which is the date when the plaintiff admittedly reached Tokyo. He has placed reliance on the cases:

 

1.???????? Pakistan International Airlines Corporation, Karachi v Shaikh Muhammad Younus PLD 1976 Kar. 184.

 

2.???????? Messrs Kuwait Airways Corporation v. Messrs Union Surgical Company 1986 SCMR 890.

 

3.???????? East and West Steamship Co., George Town, Madras, v. S.K. Ramalinegam Chettiar AIR 1960 SC 1058.

 

In view of the above case law it was argued that the suit was filed after two years and 11 months, and therefore, the right to claim damages, if any, accrued in favour of plaintiff stands extinguished.

 

Mr. S. M. Alam, learned counsel for the plaintiff has mainly based his contention on the interpretation of rule 29 of the Schedule of the Act, 1966. According to the learned counsel, there are three periods provided in the said rule and the fist one is the time of arrival of the plaintiff at the final destination. On such basis it was argued that since the plaintiff never reached Tokyo on the ticket of the defendant, therefore, the time will not run. He has also referred to Annexure‑L filed with the plaint which is a letter dated 10‑4‑1987 issued by the defendant which has not been denied by Mr. Khalid Rehman. In this letter it was conveyed by the defendant that some investigation has been initiated on the plaintiff?s complaint. It was, therefore, argued that since no result of such investigation was conveyed, the plaintiff has still time to file and maintain this suit. Before proceeding further, it would be relevant to quote Rule 29 which reads as follows:‑

 

“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 date on which the carriage stopped ….”

 

In the case of Shaikh Muhammad Younus (supra) a learned Division Bench of this Court has noted the word “extinguish” as used in section 28 of the Limitation Act, 1908 and in reference to that it was observed that the period prescribed under rule 29 of the Act 1966 for filing a suit is a period of prescription. Reference was made to the case of V.P.R.V Chocakalingam Chetty v. Seethai Ache and others (AIR 1927 Privy Council 252). However, the said case is not relevant for settlement of present controversy. In the case of Kuwait Airways (supra) the phrase “the Aircraft ought to have arrived” was interpreted in the background of that case. It would be advantageous if the relevant portion of that judgment is reproduced which reads as follows:‑‑

 

“….Taking an overall view of the facts of the case it is clearly established that the plaintiff was unequivocally informed on 1‑11‑1981 of the arrival of the goods at the destination. On the part of the appellant there was no change in this statement of facts even up to the stage of hearing of appeal in this Court, where both the parties were allowed to file such documents as they considered necessary and in response they did file‑ the documents to supplement their respective claims. Further established is the fact that the consignee .was informed of the arrival of goods at the destination and he refused to take delivery. He had reasons for that. The contention of the learned counsel for plaintiff‑respondent that the plaintiff had certain rights over the goods, which right ,go interrupted only when the right of consignee started is true and borne out by rules 12 and 13 but to contend on its basis that starting point of limitation prescribed by rule 29 got extended till the refusal was communicated by the carrier is not correct. The date when “the aircraft ought to have arrived” being not in dispute in this case, the time‑started to run from 1‑11‑1981 and two years came to an end on 1‑11‑1983. The right to claim damages got extinguished thereafter.? The suit instituted on 29‑9‑1984 was time‑barred?????..”

 

It will be pertinent to see that how the term extinguished has been defined to different law dictionaries. Some define it as an end; termination or to render extinct. In Black’s Laws Dictionary: the term extinguishment has been defined as the destruction or cancellation of a right, power, contract or estate. “It connotes the end of a thing, precluding the existence of future life therein.” In Legal Thesaurus by William C. Burton (McMillan Publishing .Co. New York 1990 at page 217) the term “extinguish” has been defined as abolish, cancel, cut out, demolish, destory, devastate suppress, terminate, wipe out etc. In the case of Barlow v. Ross (24 0,S‑P, 381) the word “extinguished” was considered in reference’ to section 20 of Artizan’s and Labourer’s Dwelling Improvement Act, 1875, whereafter it was held, inter alia, that “the right to compensation is co‑extensive with extinguishment of rights.” I would also like to refer a decision of Indian Supreme Court in Vania Silk Mills (P) Ltd. v. Commissioner of Income Tax AIR 1991 SC 2104 at 2107 where the phrase “extinguishment of any rights therein” was considered in reference to section 2 (47) read with section 45 of the Indian Income Tax Act, 1961 wherefter following observations were made while defining the said phrase:

 

“Since those associated words and expressions imply the existence of the asset and of the transferee, according to the rule of nositur a sociis, the expression ‘extinguishment of any rights therein’ would take colour from the said associated words and expressions, and will have to be restricted to the sense analongous to them. If the legislature intended to extend the definition to any extinguishment of right, it would not have included the obvious instances of transfer, viz. sale, exchange etc. Hence the expression ‘extinguishment of any rights therein’ will have to be confined to the extinguishment of rights on account of transfer and cannot be extended to mean any extinguishment of right independent of or otherwise then on account of transfer.”

 

The time limit provided for filing of a suit claiming damages in a matter arising out of Act, 1966 is rule 29 and not the provisions of the Limitation Act, 1908. It is settled law that Limitation Act only extinguishes the remedy and not the right. On his own admission, plaintiff reached his final destination Tokyo on 28‑7‑1986. It is irrelevant how he reached Tokyo. He has not given the date when he ought to have arrived at Tokyo. Therefore, he was required to file this suit on or before 27‑7‑1988, which was not done. If provisions of rule 29 of the Act, 1966 are examined it extinguishes the right itself. From whatever angle it is seen the suit appears to be patently barred. Even for the sake of arguments, which will not be legally correct, the time if reckoned from the letter dated 10‑4‑1987 (Annexure‑L), this suit was filed on 1‑6‑1989, two months after lapse of the two years period prescribed which again is hit by rule 29. No satisfactory or plausible explanation was offered for such delay.

 

In view of the above legal position and the admitted facts, it is established that the suit is patently time‑barred. Keeping in line with the rule laid down in the case Burmah Eastern Ltd. v. Burmah Eastern Employees Union and others (PLD 1967 Dacca 190) and National Fibres Ltd. v. K.D.A. and another (1996 MLD 76) this plaint in suit is rejected with no order as to costs.

 

Q.M.H./M.A.K./S‑28/K

 

Plaint rejected.

 

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