2021 PLP 695 (CLD)

This appeal is filed under section 124 of the Insurance Ordinance, 2000 (the Ordinance) calling into question order dated 12.08.2017 passed by the Insurance Tribunal.

2. The facts of the case in brief are that the respondent filed a petition against the appellant before the Insurance Tribunal which was dismissed on 21.11.2007. A learned Division Bench of this Court, however, on 07.07.2010 allowed the appeal (R.F.A. No.443 of 2007) of the respondent, set aside order dated 21.11.2007 and granted the claim of the respondent. In the execution proceedings before the Insurance Tribunal, the appellant satisfied the claim of the respondent as per the judgment rendered by this Court in R.F.A. No.443 of 2007. A learned Full Bench of this Court in judgment reported as Mst. Robina Bibi v. State Life Insurance Corporation of Pakistan 2013 CLD 477 restricted the jurisdiction of the Insurance Tribunal in terms of section 115 of the Ordinance and declared the law laid down in judgment reported as State Life Insurance Corporation v. Mst. Sadaqat Bano 2008 CLD 1069 as per incuriam. It was held by the learned Full Bench as under: Collective reading of the above provision of law shows that only the claims arising under insurance policies issued after the commencement of the Ordinance can be brought before the Insurance Tribunal while the Insurance policies issued prior to the commencement of the Ordinance continue to be governed under the repealed Insurance Act, 1938 and will continue to be agitated before the court of competent jurisdiction in terms of section 2(6) of the Act. As the petition of the respondent claiming insurance amount from the appellant was hit by the law laid down in the case of Mst. Robina Bibi, the appellant filed an application under section 144 of the Code of Civil Procedure, 1908 (C.P.C.) seeking return of the amounts received by the respondents in the execution proceedings. After soliciting reply from the respondent, the Insurance Tribunal through its order dated 12.08.2017 returned the application to the appellant in terms of Order VII, Rule 10, C.P.C. with the direction to file the same before the civil court.

3. Learned counsel for the appellant submits that the judgment rendered by the learned Division Bench of this Court in R.F.A. No.443 of 2007 did not entitle the respondent to receive the amounts from the appellant in view of the law laid down in the judgment of the learned Full Bench of this Court in Mst. Robina Bibi 's case. It is accordingly argued that the appellant rightly filed the application under section 144, C.P.C. seeking restoration in regard to the amounts received unlawfully by the respondent.

4. Learned counsel for the respondent, on the other hand, supported the impugned order passed by the Insurance Tribunal and stated that a forum which had no jurisdiction to entertain the claim of the respondent as per the law laid down in Mst. Robina Bibi's case could not have ordered for return of the amounts paid to the respondent by the appellant.

5. The operative part of the impugned order reads as under:

6. When it has already settled that all the proceedings before Tribunal allowing the application and its execution were carried out by the Insurance Tribunal having no jurisdiction then how the Insurance Tribunal could further pass any order subsequent thereto under section 144, C.P.C. for restitution.

7. Section 115 of the Ordinance provides that only claims arising out of insurance policies issued after the commencement of Insurance Ordinance i.e. on after 19.8.2000 can be entertained by Insurance Tribunal. There is no provision under the Ordinance to transfer pending cases under the repealed Act to the Insurance Tribunal, hence claims arising out of the Insurance policies prior to the commencement of the Ordinance shall continue under the repealed Act i.e. Insurance Act 1938 before the court of appropriate jurisdiction. The above resume of facts are sufficient to hold that this Insurance Tribunal is not competent to pass an order under section 144, C.P.C. because it would be another order passed by this Tribunal having no jurisdiction. The application is returned under Order VII, Rule 10, C.P.C. with the direction to file the same before appropriate forum i.e. the Civil Court.

6. After hearing the submissions of the learned counsel for the parties, we are not inclined to accept the submissions made by learned counsel for the respondent. It is accepted by the parties hereto that by the force of the law laid down in Mst. Robina Bibi's case, the Insurance Tribunal has no jurisdiction to entertain and adjudicate upon the petition filed by the respondent and that the judgment rendered by this Court in R.F.A. No.443 of 2007 was also without any force of law jurisdiction in as much as the learned Division Bench of this Court exercised the same jurisdiction as was vested in the Insurance Tribunal. Similarly, by virtue of section 122 of the Ordinance, the Insurance Tribunal is vested with all the powers that a civil court has under C.P.C. including the power to order for restitution in terms of section 144.

7. One of us (Ch. Muhammad Masood Jahangir, J.) has correctly laid down the law relating to restitution in judgment rendered in Writ Petition No.13884 of 2020 titled Muhammad Aatif Iqbal and others v. Zeshan Ali and others, which reads as follows:- There is no cavil to say that doctrine of restitution is based upon cardinal maxim "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man). It contemplates a case where property had been received through order of the Court, which latterly was reversed or varied. In such situation, it becomes wrongful possession, hence imperative upon the beneficiary of said erroneous order/decree to make restitution to the other party for what he had lost, otherwise Court is armed with the powers to place the scourger/applicant in the position in which he would have been, if the order had not been made, else it would be inequitable and un-just with the latter. The concept of restitution is as old as the law itself. The provision ibid provides procedure, whereas the power to order restitution is inherent in Court and sparingly exercised whenever justice demands. It cannot be taken as a case of restoration of possession, but of restitution of possession because order of dispossession is reversed. It is made clear that when the expression "the act of the Court is used, it does not merely the act of primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court, which entertains jurisdiction over the matter upto the highest Court and finally disposes of the cases. It would be expedient to clarify that it is not necessary that the Court reversing the order/decree should specifically direct restitution of the property, rather such right arises automatically, which is enforceable before the Trial Court. Even any subsequent event cannot defeat the right of restitution, rather to be enforced against the person, who was benefited under such order/decree as well as his transferee or assignee, even if such person had not been party to the proceedings in which such order or decree reversed.

8. The Hon'ble Supreme Court in the case of Abdul Bari v. Muhammad Rasheed Khan and 7 others 1995 SCMR 851 has held that even if the powers under section 144, C.P.C. are not available, restoration can be ordered under the inherent powers available with the court under section 151, C.P.C.

9. We are, therefore, in no manner of doubt that the Insurance Tribunal had the necessary jurisdiction in law to pass an order on the application filed by the appellant under section 144 of C.P.C.

10. In the result, this appeal is allowed and order dated 12.08.2017 passed by Insurance Tribunal is set aside with the result that the application filed by the appellant under section 144, C.P.C. shall be deemed to be pending before the Insurance Tribunal which shall be decided afresh. Both the parties are directed to appear before the Insurance Tribunal on 28.10.2020. KMZ/S-60/L Appeal allowed.