2020 PLP 1329 (CLD)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Factually the appellant insured his vehicle for its transit from Karachi to Lahore, but the same on its way met with accident whereupon he approached the insurer/respondents for his claim. Although surveyor submitted his report on 12.01.2007, but despite repudiation of claim, the earlier report was objected to and with the intervention of Security and Exchange Commission of Pakistan (SECP) the insurer agreed to have second survey conducted on the subject, which was still awaited when suit for recovery of insurance claim was submitted before the Court of law. The respondents defended it on legal as well as factual grounds compelling the learned Court below to materialize issues and when partial evidence of the plaintiff/appellant was already recorded, the insurer/respondents tabled application for the rejection of the plaint on the sole score of limitation, which was accorded through the impugned order of 10th February, 2014 holding that the suit instituted after expiry of three years as provided under Article 86-A of the first schedule of Limitation Act, 1908 was time barred, hence this appeal under section 124 of the Insurance Ordinance, 2000.

2. Arguments heard. Record perused.

3. There is no cavil that while invoking penal consequences of rule 11 of Order VII of the Code, 1908 the Court has to confine itself to the contents of the plaint and in para 14 thereof it was specifically pleaded that report of earlier surveyor was objected, thus with the intervention of SECP a second surveyor had already been appointed, which contention of the appellant was explicitly admitted by the respondents/defendants through their written statement, as such limitation might have to stretch until the said report is submitted. Consequently, we are of the opinion that in the lis in hand, the issue of limitation is a mixed question of law and fact, which without recording of evidence cannot be determined and summarily rejection was not warranted.

4. It was matter of record, which otherwise also admitted by the contestant before this Court that issues besides one qua limitation have already been settled down. It is well established principle of law that once issues are framed and Court enters upon recording of evidence, then matter has to be taken on its logical end instead of summary provision of law as contained in the Code of 1908. The learned Trial Court after framing of issues and recording partial evidence ought to have decided the matter on merits as held in the cases of 'Messrs Hoechst Pakistan Ltd. v. Messrs Cooperative Insurance Societies and others' (1993 MLD 2464), 'Irshad Ali v. Sajjad Ali and 4 others' (PLD 1995 Supreme Court 629) and 'Haji Abdul Sattar and others v. Farooq Inayat and others' (2013 SCMR 1493). Even applicability of sections 14 and 19 of the Act, 1908 is still to be adjudged and the claimant cannot be refused legitimate right summarily while applying its Article 86-A, especially when claim of the appellant is still subject of the report to be submitted by the second surveyor appointed mutually with the intervention of SECP and its propriety has still to be seen by the learned Court below after receiving the same and appreciating the evidence to be fetched in this behalf. The apex Court in the recent judgment reported as Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore (PLD 2020 SC 324) while dealing with almost similar controversy has held that law favours adjudication of controversy on merit rather to trap the litigants through technicalities. In such facts and circumstances, we consider this appeal has merit, thus allowed, the impugned order is result of patent illegality, hence set aside and learned forum below is directed to decide the matter afresh after receiving and appreciating the evidence of the respective parties. SA/A-64/L Appeal allowed.