2018 PLP 130 (YLRN)

MUHAMMAD ALAM, J.

This is a Civil First Appeal against judgment/ order dated 29-08-2016, passed by the Civil Judge First Class Gilgit, whereby, suit of respondent/plaintiff was decreed throughout.

2. Respondent/plaintiff filed Civil Suit No.12/94 in the trial court, wherein, averred that he is entitled to recover Rs.650,000/- (Six Lac Fifty Thousand) as price of the articles of the respondent's shop that he had insured with the appellants/defendants. Appellants contested the suit and filed separate written statements. Appellant No.2/ defendant No.2 has specifically averred that the shop of respondent was insured for one year and the same period expired on 29-12-1992, therefore, appellants/ defendants have no liability, whatsoever, to pay the suit amount. Defendant No.1 denied almost all averments of the plaint. In the light of pleadings of parties, learned trial court framed the following issues:-

1. Whether suit is not worthy any consideration as plaintiff did not affix court fee of the suit amount of Rs.650,000/-? OPD

2. Whether suit is legally not maintainable? OPD

3. Whether plaintiff has any cause of action against defendant? OPD

4. Whether defendant No.1 withheld the papers of insurance policy of the insurance of articles of the shop of plaintiff till 23-05-1992? OPD

5. Whether defendant No. 1 was bound to review the expenses of the plaintiff's shop till payment of the debt of Rs.300,668/-? OPD

6. Whether accidental short circuits caused the burning of the shop of plaintiff on 1.04.1993 resulting to damage of Rs.796512/- to the plaintiff? And whether the then insurance pass of the debt was valid? OPP 7 Whether defendant No.1 himself with staff visited the shop of plaintiff soon-after the occurrence and ensured the payment of the insured amount? OPP

8. Whether representatives of defendant No.2, on filing the claim by defendant No. 1 on behalf of plaintiff, visited the site for completing the record and after investigation taken necessary documents with them? And whether defendants had promised to pay the insurance claim of the plaintiff? OPP

9. Whether plaintiff visited defendants Nos.1 and 2 for insurance claim on direction of the defendant No.2? And whether defendant No.1 avoided the payment of the suit amount on different pretexts? OPP

10. Relief.

3. Learned trial court afforded chance to the parties for producing evidence and parties led evidence in proof and rebuttal of the issues. Learned trial court gave the following findings on the issues:-- Issue No.1 Not pressed. Issue No.2 Defence has failed to prove this issue. Issue No.3 Issue thus proved in positive. Issues Nos.4 and 5 Hence this issue proved. Issue No.6 Hence proved in favour of the plaintiff. Issues Nos.7 and 8 Both issues proved in favour of the plaintiff in absence of any reliable evidence produced by the defence. Issue No.9 Thus I have no option but to grant a decree in favour of the plaintiff as prayed for.

4. We have heard learned counsel for parties and have gone through the file. In our opinion, the case in hand is very important as the learned trial court has passed the impugned decree in utter violation of the normal norms of civil administration of justice. We are taking up all the issues and are attempting to discuss the findings of the learned trial court in juxtaposition of the evidence available on file. The first sentence of the learned trial court as findings of the first issue are that:-- "Not pressed." Then the learned trial court started comments, without any reference to the evidence of parties and has concluded that:- "Now as suit decree in his favour, the proper court fee to be attached." These remarks of the learned trial court have admittedly attained finality against the respondent and clearly show that respondent was bound to affix court fee on the suit amount. It is admitted at bar that respondent has not so far affixed any court fee and has also not submitted the same with any application etc. in this Court or in the trial court. So, the first issue proved in affirmative and we hold that the suit is bad in the eye of law. Issue No.2: In our opinion, suit of respondent/plaintiff is not competent simply because of proof of issue No.1 and learned trial court has omitted to give any findings on this issue and instead taken up the question of cause of action, which is a question of issue No.3 not of this issue. The discussions of findings of the learned trial court on this issue are therefore not relevant. In our opinion, this issue also proved in affirmative. Issue No.3: Burden of proof of issue No.3 is on appellants/defendants while trial court has written the same as an OPP issue. We ignore this defect as the issue must have been framed as an OPD issue. The omission of the learned trial court pointed out is negligible and is neglected. The question of advancing of loan to the respondent/plaintiff by the appellants/ defendants as well as the execution of insurance policy between the parties is admitted, therefore, respondent/plaintiff has a cause of action for filing the suit. We, therefore, hold that this issue is proved in favour of respondent/plaintiff. Issues Nos.4 and 5: Learned trial court has decided both issues Nos. 4 and 5 through joint findings and discussion. Learned trial court has wrongly given its findings on the said two issues. Burden of proof of both the said two issues is on appellants/defendants while learned trial court has given findings, assuming that burden of proof of both the said two issues is on the respondent/plaintiff. In our opinion, both the said issues must have been framed as OPP but the court wrongly framed the same as OPD. We are of the further opinion that learned trial court has wrongly framed the two issues, as result of the two issues is meaningless': Respondent/plaintiff is legally bound to prove issues Nos. 6 to 9 which are the most important issues of the case. Issues Nos.6 to 9: We are taking up these issues for joint discussion. While giving findings on issues Nos.6 to 9, learned trial court has not discussed the evidence of parties in proof and rebuttal thereof, therefore, we hold that findings of the learned trial court on issues Nos.6 to 9 are wrong. We feel perturbed while reading findings of the learned trial court on issue No.6. The findings of the learned trial court on issue No,6 are comprised of four sentences, therefore, we reproduced the same hereunder:-- Issue No.6? OPP Exhibit P/7, Exhibit P/8 and Exhibit P/9 presented to prove this issue. Furthermore defendants Nos.1 and 2 are silent to rebut the facts raised by the plaintiff. The rule that documents speak themselves has strengthened case of the plaintiff. Issue not pressed independently by the defendants. Hence proved in favour of the plaintiff." Likewise, the findings of the learned trial court on Issues Nos.7 and 8 are also painful. For ready reference, we reproduce the conclusive part of the findings of the learned trial court on the said two issues:- "Both issues proved in favour of the plaintiff in absence of any reliable evidence produced by the defense." It is very strange that the learned trial court has felt satisfied as to proof of issues Nos.7 and 8 only because defense failed to produce any reliable evidence. The discussion part of the findings of the learned trial court on these two issues is strange. In opinion of the learned trial court, mere fact that defendants did not deny the occurrence of burning of respondent's shop as a result of any short circuit is sufficient proof of these two issues. Obviously, appellants had no concern whatsoever as to the occurrence of burning of the shop of respondent soon after 29-12-1992, a date of expiry of the insurance of the said shop. Learned trial court has further held that the contract, endorsed in Exh.D/1 or Exh.P/9, was active during the occurrence of short circuit. In this connection, learned trial court held that not filing of any counter document by the appellants/defendants was sufficient proof of existence of insurance contract.

5. Obviously, case in hand has its own peculiar circumstances and in the light of such circumstances, respondent is bound to prove issues Nos. 6 to 9 independently. In our opinion, a decree cannot be passed unless and until respondent proved issues Nos.6 to 9 independently. We are of the further opinion that respondent cannot take benefit of any weaknesses in evidence of appellants. In the case in hand, learned trial court has held that she is passing the impugned decree as appellants failed to produce reliable evidence and thereby shifted the burden of proof to the appellants without any justification. As a result of lengthy hearing of the counsel for parties and perusal of the record, we are of the view that the real questions for determination are:-

1. Whether the insurance policy existed at the time of the occurrence of burning of the shop of respondent due to accidental fire of short circuit?

2. Whether respondent/plaintiff proved that the burning of his shop was result of any accidental fire of short circuits?

3. Whether respondent proved that the articles of the shop burnt to ashes was worth Rs.650,000/-, i.e., the suit amount?

6. We have gone through the file and found that Exh.P/2 is the only document that needs to be appraised as basic and direct evidence in proof and rebuttal of issues Nos.6 to

9. If we read this document with the FIR of the occurrence, we come to a correct conclusion. The FIR of the case clearly shows 01-04-1993 as the date of occurrence while Exh.P/2 very clearly shows 29-12-1992 as the last date of expiry of the insurance of the shop of respondent. The another very important aspect of the case is that respondent was specifically questioned about the date of expiry of his shop. We found an affirmative reply by the respondent as to the date of expiry of insurance of his shop. So, it is evidently clear that the occurrence of burning of the shop of respondent occurred about three months after the expiry date, i.e., 29-12-1992. Therefore, respondent had no cause of action, whatsoever, for filing the suit.

7. We, therefore, allow this appeal throughout, set aside the impugned judgment/decree and dismiss the suit of the respondent. Appeal allowed. This file be consigned to record. ZC/49/GB Appeal allowed.