2017 PLP 303 (YLRN)

ZAFAR AHMED RAJPUT, J.

Deferred.

2. This is an application filed by defendant No.2 under Order VII, Rule 11, C.P.C. praying therein for rejection of the plaint on the ground that the instant suit is not maintainable under the provisions of various laws, including Fatal Accidents Act, 1855. Heard the learned counsel for the parties. Learned counsel for defendant. No.2. has contended that the deceased Muhammad Khalid Sheikh was a workman, who died on duty due to an accident in the factory owned by defendant No.1 and in order to ascertain the amount of his compensation under Workmen's Compensation Act, 1923 (herein after referred to as the "Act of 1923") a reference is pending adjudication before the Commissioner of Workmen's Compensation, who can determine the liability and amount of compensation so also any question as to the nature of accident/death. He has further contended that the section 19 of the Act of 1923 bars the jurisdiction of Civil Court to settle, decide or deal with any question which is by or under the Act of 1923 required to be settled, decided or dealt with by a Commissioner or to enforce any liability. He has also contended that section 10 also prevents the Courts or concurrent jurisdiction from simultaneous entertaining and adjudicating upon two parallel litigations in respect of the same matters in issue. In support of his contention learned counsel for defendant No.2 has relied upon the following decisions:

1. Abbas Hussain and another v. The State and another (1992 SCMR 320). It has been held that the objection of jurisdiction should be taken first of all before the same Court or Tribunal for its decision.

2. Mir Alam Khan v. Mst. Afsar Jan and another (PLD 1982 SC (AJ&K) 107). It has been held that when there is a Tribunal of exclusive jurisdiction to decide a particular matter then the Tribunal has a jurisdiction to decide the same rightly or wrongly and the High Court cannot interfere under constitutional jurisdiction.

3. Rashid Ahmad v. The State (PLD 1972 SC 271). It has been held that if a mandatory condition for exercise of the jurisdiction before a Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become irrelevant and suffer from want of jurisdiction. On the other hand, learned counsel, for the plaintiffs has contended that it is an admitted position that the deceased Muhammad Khalid Sheikh died on 30.10.2009 by succumbing severe traumatic burn injuries due to falling in the hot oil pit on 26.10.2009 at the factory owned, run and operated by the defendants jointly and such incident took place owing to their composite negligence, therefore, the plaintiffs have maintained this suit under law of Tort. He has further stated that although the reference of compensation under Act of 1923 is sub judice before the Commissioner of Workmen's Compensation but that does not debar the plaintiffs from claiming damages under Law of Tort. In support of his contentions, learned counsel for the plaintiffs has relied upon the following decisions:

1. Karachi Transport Corporation v. Shoukat Ali Khan (1988 MLD 582)

2. Muhammad Younus Khan and 3 others v. Karachi Road Transport Corporation and another (1984 CLC 2830).

3. Islamic Republic of Pakistan through Secretary Ministry of Railways and others v. Abdul Waheed and another (2011 SCMR 1836). I have given my due considerations to the submissions made by the learned counsel for the parties. The plaintiffs have maintained this suit for recovery of damages against the defendants on the ground of composite negligence on the part of the defendants under the Law of Tort. The objective of the tort law is to compensate the plaintiffs for the harm which they have suffered and since the case of the plaintiffs is not with respect of any "compensation", the bar of jurisdiction of Civil Court, contained in subsection (2) of the section 19 of the Act of 1923, is not applicable in this case. So far the question of res sub judice is concerned, section 10 of the C.P.C. does not bar the institution of subsequent suits but only the trial of such suits in which the matter directly ad substantially is the same. I am of the view that an action under the Law of Tort is different and distinct from the statutory liability of an employer to pay the compensation under Act of 1923. Reliance in this regard may be placed on case of Karachi Transport Corporation (supra). The case-law cited by the learned counsel for defendant No.2 are distinguishable so far the facts of the present case are concerned. For the foregoing facts. The suit of the plaintiffs appears to be maintainable in law, therefore, instant C.M.A. is dismissed being devoid of merit. ZC/Z-3/Sindh Application dismissed.