IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE MAQBOOL BAQAR

CIVIL PETITION NO. 1965 OF 2019

On appeal from the judgment dated passed
03.05.2019 by the Lahore High Court Lahore in
C.R.1339/2017)

Jubilee General Insurance Co. Ltd, Karachi …Petitioner(s)

VERSUS

Ravi Steel Company, Lahore …Respondent(s)

For the petitioner(s): Mr. Hamid Khan, Sr. ASC a/w Barrister
Rana Tariq, Legal Advisor

For the respondent(s): Mr. Zaheer-ud-Din Babar, ASC

Date of Hearing: 09.10.2019

JUDGMENT

Mushir Alam, J.— Present Petitioner, Jubilee General Insurance

Co. Limited, Karachi (hereinafter the ‘insurer’) have impugned the

three (3) Member Bench judgement of Lahore High Court dated

3.5.2019, which decided by majority of 2:1, in C.R. No.1339 of

2017, that insurer, after exhausting ultimate remedy in review

jurisdiction of Apex Court by re-agitating judgment of the learned

Insurance Tribunal dated 03.10.2012 through application under

section 12(2) CPC on a ground that even though defense of

limitation was available but was not raised. Therefore, the

application made is not maintainable and order dismissing

application under section 12(2) CPC was passed by the learned

trial Court was upheld through impugned judgment.

CIVIL PETITION NO. 1965 OF 2019 2

2. Facts in brief are that the respondent-Ravi Steel Company a

property concern (hereinafter referred to as the ‘insured’) insured

consignment of two ‘furnace shell’ (herein after referred to as

‘insured goods’) destined for Kazakhstan under “Marine Cargo

Policy” dated 18.6.2005 (Ex-A-2), issued by the Petitioner-Insurer.

The insured goods, en-route to Kazakhstan were damaged, the

incident was reported promptly to the insurer on 5.9.2005 and the

claim was lodged with insurer on 9.9.2005 (Ex-A-4). All documents

as required by the insurer for processing the claim and assessing

the damages were furnished through Ex-A-4 to Ex-A-6. To assess

the loss/damage, ‘insurer’ appointed a Surveyor on 23.9.2005 (Ex-

A-8) and it is matter of record that based on surveyor’s report

(which was not supplied though demanded by the assured nor

produced in evidence), the insurer repudiated the claim on

19.08.2008 (Ex-A-9), which prompted the insured to file a claim

under section 122 of the Insurance Ordinance, 2000, (hereinafter

referred to as Ordinance, 2000) for the recovery of sum assured

along with liquidated damages in terms of Section 188 of the

Ordinance, 2000, before the learned Insurance Tribunal, Lahore on

11.11.2008. The claim was contested on merits, reply was filed,

issues were framed, evidence was led by both the parties. Claim

Application was allowed by the learned Insurance Tribunal on

3.10.2012 for the sum assured together with liquidated damages

as provided for under section 118 of the Ordinance, 2000

“Calculated at the rate of five (5) percent on high base rate” till

realization. Petitioner belatedly filed Regular First Appeal No.992 of

2012 under Section 124 of the Ordinance, 2000 which was

dismissed on 6.4.2016, which was challenged before this Court

CIVIL PETITION NO. 1965 OF 2019 3

through Civil Petition No.1287-L of 2016, which was dismissed on

29.6.2016 and so also Civil Review Petition No.26-L of 2016 met

the same fate vide order 24.01.2017.

3. From the record it appears that in the intervening period

when First Regular Appeal No.992 of 2012 was pending before the

High Court, execution application was filed by the insured, which

was resisted by the insurer, through Objection Petition, on the

ground, inter alia, that the original Insurance Claim was time

barred and few days later i.e. on 15.12.2012 chose to challenge the

order of the Insurance Tribunal dated 03.10.2012 through yet

another channel by invoking section 12(2) CPC on 15.12.2012

(pages 103-116) on grounds inter-alia that: i) the claim was patently

barred by time; and ii) want of jurisdiction, beside on merits. It is a

matter of record that before the RFA No. 992 of 2012 could be

decided, Objection Petition was dismissed on 20.5.2016, which

order was not challenged any further and it attained finality. It is a

matter of record that the application under section 12(2) CPC was

kept pending, which fact was not disclosed before the learned High

Court when the RFA No. 992 of 2012 was heard and dismissed on

6.4.2016, such fact was also not disclosed in CPLA No. 1287-L of

2016, which was dismissed on 29.6.2016, Civil Review Petition

No.26-L of 2016 filed met the same fate vide order dated

24.01.2017.

4. After exhausting two remedies against the order of the

Insurance Tribunal dated 3.10.2012, one right up to review

jurisdiction of this Court, as noted above and second through

channel of objection, and having failed throughout, the Petitioner

CIVIL PETITION NO. 1965 OF 2019 4

resorted to challenge the very order of the Insurance Tribunal by

resurrecting the application under section 12(2) CPC, which

application was dismissed on merits by the learned Insurance

Tribunal, vide order dated 8.3.2017 on the ground, inter alia, that

Objection Petition on similar facts and grounds was dismissed by

the learned Tribunal observing that “from the contents of

application and from perusal of the record available before this

Tribunal, the element of fraud, misrepresentation or want of

jurisdiction in terms of section 12(2) CPC are missing” vide order

dated 08.03.2017 which order was maintained in Civil Revision

No.3093 of 2016 by a majority of 2:1 by the learned Bench of the

Lahore High Court vide judgement dated 3.5.2019 impugned

before us.

5. Mr. Hamid Khan, learned Sr. ASC for the petitioner

contended that scope and parameters of Section 12(2) CPC are

different. According to him, the petitioner in RFA No. 992 of 2012

was non-suited on the ground of limitation. According to him

original insurance claim of the respondent was also hit by

limitation, which aspect of the matter was not considered by the

learned Insurance Tribunal and so also by the bench of the Lahore

High Court. According to learned ASC, the contingency to file

insurance claim was reported on 9.9.2005, limitation to file

insurance claim under Article 86 (b) of the Limitation Act, 1908 is

three years from ‘the date of occurrence causing loss’, the Insurance

Claim Application under section 122 of the Ordinance 2000, was

filed on 11.11.2008, which was delayed by two months. It was

urged that it was duty of the Insurance Tribunal under Section 3 of

the Limitation Act to dismiss the Claim Application outright. It was

CIVIL PETITION NO. 1965 OF 2019 5

argued that the learned Insurance Tribunal could not have

assumed the jurisdiction to entertain a time barred claim. It was

next urged that the insurer being bailee had no insurable interest.

6. Learned Sr. ASC for the petitioner next urged that when

multiple remedies against a judgement, decision or an order are

available then exhausting one remedy, does not bar other legal

remedies, which could always be pressed into in service one after

the other irrespective of outcome of one remedy. According to him,

reliance in the impugned judgment on the case cited as Trading

Corporation of Pakistan vs. Devan Sugar Mills Limited & others (PLD

2018 Supreme Court 828) is also misplaced. According to him,

the case of Maharunisa & another vs. Ghulam Sughran & another

(PLD 2016 Supreme Court 358), as relied upon by learned

minority Judge was apt and to the point. It was, therefore, urged

that petitioner was well within its right to challenge the order of

learned Insurance Tribunal under Section 12 (2) CPC, which is

separate, distinct and coextensive remedy could be invoked

independently and successively to assail order of the Insurance

Tribunal on different grounds of defence including limitation,

which though available were not raised nor adjudicated in first set

of defence at trial.

7. Mr. Zaheer-ud-Din Babar, learned counsel appearing on

behalf of the respondent ‘insured’, supports the impugned

judgment. It was urged that, insurance claim was lodged with the

insurer promptly, on 9.9.2006 (Ex-A-4). The claim was not refuted

and surveyor was appointed by the insurer to assess the loss.

According to him, it was the Petitioner/Insurer who delayed in

CIVIL PETITION NO. 1965 OF 2019 6

settlement of claim beyond 90 day as required under Section 118

of the Ordinance, 2000 law and without providing any survey

report, belatedly refuted the claim on 19.2.2008. It was urged that

the Insurer was very much party to the proceedings before the

Insurance Tribunal and has contested the claim up to Review

jurisdiction of this august Court, and cannot collaterally challenge

the very judgment dated 3.10.2012 of the Insurance Tribunal

under section 12(2) CPC raising ground inter-alia of limitation.

Learned ASC for the Respondent urged that the Petitioner kept the

insurer on false hope and adopted misleading and deceptive

conduct amounting to fraud that prevented the insured to

approach the Insurance Tribunal earlier and that they cannot be

allowed to take benefit of such misleading and deceptive conduct.

It was contended that abandoning plea of limitation at trial also

amounts to waiver, as under facts and circumstances, question of

limitation was mixed question of facts. Had it been raised at the

earliest opportunity at the trial, insurer would be in a position to

contest and defend such a dishonest plea. It was argued that

present case is fully covered on all fours by dicta laid down in a

case reported as Trading Corporation of Pakistan (Supra), wherein

this Court expounded ‘doctrine of election of remedy’ and concluded

that when out of multiple available remedy one of the remedy is

invoked and exhausted a party cannot be allowed to hop and shop

another remedy which may be available. Therefore, impugned

judgment by majority of 2:1 rightly dismissed the application

under Section 12 (2) CPC, calls for no exception.

8. Having heard the arguments and perused the record,

attending the challenge of the learned counsel for the Petitioner on

CIVIL PETITION NO. 1965 OF 2019 7

the ground of limitation. It is a matter of record that contingency of

damaged to the ‘insured goods’ occurred and was reported during

the currency of insurance policy promptly to the insurer on

9.9.2006. Insurer did not repudiate the insurance claim but, to

assess the loss appointed the surveyor on 7.9.2006. (Ex-A-9) In

terms of Section 118 of the Insurance Ordinance, 2000 insurer is

obligated to, scrutinize, settle and pay the insurance claim within a

period of 90 days from the date on which payment becomes due, or

when the beneficiary of insurance claim, complete papers for

claiming the payment due under the insurance policy. It is evident

from the record that all the documents, as required by the Insurer

to scrutinize, settle and pay the insurance claim were provided by

the Insurer on 13.10.2005 (Ex-A-5) and 26.9.2005 (Ex. A-6). It is a

matter of record even that the Insurer, through letter dated

23.10.2005 (Ex-A-13) alongwith detail of damage caused, informed

the Insurer, that survey has been carried out by the surveyor yet

the claim was not paid and the Petitioner, Insurer took its time to

repudiate the claim as late as on 19.2.2008 i.e. more than two and

a half year as against 90 days as required under section 118 of the

Ordinance, 2000. Common law principle of “utmost good faith”

(also recognized as ‘Uberrimae Fidei’) has received statutory

recognition, under Section 75 of the Insurance Ordinance 2000; it

means that every person who enters into

a contract (of insurance) has a legal obligation to act with utmost

good faith towards each other and parties (to insurance) contract

are required to deal with each other in an honest and upright

manner, disclose all material facts to each other and not to take

unfair advantage over another person or to fulfill a promise to act,

CIVIL PETITION NO. 1965 OF 2019 8

even when some legal technicality is not fulfilled. (see section 76

ibid also) Additionally, Insurer is obligated not to engage in a

misleading or deceptive conduct that may put the insured or

beneficiary of Insurance Policy into a disadvantageous position (see

section 76 ibid). Even ambiguities in insurance policies are

construed in favour of the insured (Section 77 ibid).

9. It is true that limitation to file Insurance Claim arising under

the Insurance Policy before the Insurance Tribunal is not provided

for under the Ordinance, 2000, however three years period is

provided for under Article 86 (b) of the Limitation Act, 1908 against

‘the occurrence causing the loss’ on the policy of insurance “when

the sum insured is payable after proof of the loss has been given to

or received by the insure”. Indeed, in adversarial proceedings a

litigant has to cross the barrier of limitation, before his rights are

adjudicated. Like Order II Rule (2) CPC mandates the Plaintiff to

include the whole claim and seek all reliefs in a suit to which he is

entitled, where a plaintiff omits to sue in respect of the portion so

omitted to claim any relief to which he may be entitled, he cannot,

except by leave of the Court, afterwards sue for any relief so

omitted. Cumulative effect of Order VI Rule 4 CPC read with Order

VIII Rule 2 and other enabling provisions, by same stroke requires

that the “defendant must raise” in written statement and

specifically and particularly plead “all matters, which show that the

suit not to be maintainable or that the transaction is either void or

voidable in point in law, and all such grounds of defence as, if not

raised, would be likely to take opposite party by surprise or would

raise issues of facts not arising out of the plaint as for instance

fraud, limitation, release, payment, performance or facts showing

CIVIL PETITION NO. 1965 OF 2019 9

illegality.”(Order VIII Rule 2 CPC) plea of misrepresentation, fraud,

breach of trust, willful default or undue influence, and in all other

cases in which particulars may be necessary” (Order 6 R 4 ibid).

These rules of prudence require both the plaintiff and defendant to

plead all facts that may constitute cause of action for any relief and

for the defendant which may constitute a defence to specifically

refute any claim on merits as well raising specific defense

denouncing claim on the assertions of fraud, limitation, release,

payment, performance or facts showing illegality. Unless such

particulars are specifically pleaded in the plaint or in written

statement as a defence other party may it be plaintiff or defendant

would have no opportunity to controvert the same, as neither the

issue could be framed nor, evidence could ordinarily be allowed to

be raised or led at trial or attended in further appeals or revisions

as the case may be. Failure to raise such plea at the first

opportunity (either in plaint or written statement as the case may

be) to assert any right or claim any relief where such rights and

relief is founded on such assertion or raising such plea as a

defence to contest and or controvert any such claim may well

amount and be successfully be defeated on doctrine of constructive

res-judicata, in subsequent proceedings (see Explanation IV to

section 11 CPC and Mst. Kulsoom and 6 others vs. Mrs. Marium

and 6 others (1988 CLC 870, para 5).

10. In addition to doctrine of constructive res-judicata, doctrine of

equitable estoppel having received statutory recognition under

Article 114 of the Qanun-e-Shahadat Order, 1984 is gainfully

applied in Insurance matter where the insurer uses the tool of

surveyor, assessors and or investigators to investigate into claim of

CIVIL PETITION NO. 1965 OF 2019 10

loss and assessment of damages and induce the insured to believe

that the claim will be paid and or settled once the survey,

assessment or investigation into loss or damages is completed in

due course and then belatedly, refutes the claim putting the

insured at disadvantage to bring claim within limitation. In all

fairness, in such circumstances the insurer may be equitably

estopped from raising plea of limitation as a defense to the

Insurance claim in Court of law. In case in hand plea of limitation

was not raised in the first set of proceedings. (those interested may

gainfully see In US jurisdiction where analogues provision contained

in section 623 of California Evidence Code was propounded in a

case Irwin vs. Department of Veteran’s Affairs, [498 U.S. 89,96

(1990)] “An estoppel against a limitations defense usually ‘arises as

a result of some conduct by the defendant, relied on by the plaintiff,

which induces the belated filing of the action Spray, Gould &

Bowers vs. Associated Int’l Ins. Co., [71 Cal. App.4th 1260, 1268

(1999)]. Where an insurer is responsible for concealing the existence

of an insured’s cause of action, Courts of this State have found that

the insurer may be estopped from asserting statutory and

contractual limitation periods, (there are plethora of authorities on

the point including Vu, [26 Cal.4th at 1152], Hydro-Mill Co., Inc.

vs. Hayward Tilton & Rolapp Ins. Assoc., Inc., [115 Cal. App. 4th

1145, 1165-66 (2004) and more recently from Indian jurisdiction

National Insurance Co. Ltd vs. Hindustan Safety Glass Works Ltd.

[2017] 5 SCC 776 paragraph 17 & 18).

11. Since the Petitioner/defendant did not raise the bar of

limitation, in the written statement, before the Insurance Tribunal

at trial, which in the given circumstances is a mixed question of

CIVIL PETITION NO. 1965 OF 2019 11

fact and law and the same not having been raised, the

Respondent/Plaintiff had no occasion to meet such challenge in

earlier set of proceeding that culminated in his favour up to this

Court in Review jurisdiction. Having failed to obtain any favourable

order in the first complete cycle of remedy up to apex Court and

having failed in its attempt in second challenge by way of

objections to the execution, the Petitioner is not only estopped to

seek annulment of judgment of Insurance Tribunal collaterally by

adopting another or alternate channel of remedy to question the

judgment of Insurance Tribunal on the ground of limitation by way

of an application under section 12 (2) CPC, which ground, though

available at trial was not raised could not be allowed to be raised in

a collateral challenge.

12. Even otherwise, it is by now well entrenched in our

jurisprudence that where multiple remedies are available against

any order judgement and or decision than it is the prerogative of

the suitor to elect and pursue one out of the several hierarchy or

channel of remedies. A suiter having availed and exhausted one of

the several hierarchy or channel of remedy, doctrine of constructive

res-judicata, as discussed above debars him to adopt one after

another hierarchy, course or channel of remedies. In case in hand

Petitioner having challenged unsuccessfully the order of Insurance

Tribunal up to this Court, then unsuccessfully availed second

channel of remedy by challenging the Order of Insurance Tribunal

through objection petition before the executing Court under

section 47 CPC, which order too has attained finality and now

invoked third hierarchy of remedy by way of application under

section 12 (2) CPC. In somewhat similar circumstances, in the case

CIVIL PETITION NO. 1965 OF 2019 12

of Trading Corporation of Pakistan (Supra). It was held in para-8 at

page-833 as follows:

“The moment suitor intends to commence any

legal action to enforce any right and or invoke
a remedy to set right a wrong or to vindicate
an injury, he has to elect and or choose from
amongst host of actions or remedies available
under the law. The choice to initiate and
pursue one out of host of available concurrent
or co-existent proceeding/actions or remedy
from a forum of competent jurisdiction vest
with the suitor. Once choice is exercised and
election is made then a suitor is prohibited
from launching another proceeding to seek a
relief or remedy contrary to what could be
claimed and or achieved by adopting other
proceeding/action and or remedy, which in
legal parlance is recognized as doctrine of
election, which doctrine is culled by the courts
of law from the well-recognized principles of
waiver and or abandonment of a known right,
claim, privilege or relief as contained in Order
II, rule (2) C.P.C., principles of estoppel as
embodied in Article 114 of the Qanun-e-
Shahadat Order 1984 and principles of res-
judicata as articulated in section 11, C.P.C.
and its explanations. Doctrine of election apply
both to the original proceedings/action as well
as to defenses and so also to challenge the
outcome on culmination of such original
proceedings/action, in the form of order or
judgment/decree (for illustration it may be
noted that multiple remedies are available
against possible outcome in the form of an
order/judgment/decree etc. emanating from
proceedings of civil nature, which could be
challenged/defended under Order IX, rule 13
(if proceedings are ex-parte), section 47
(objection to execution), section 114 (byway of
review of an order), section 115 (revision),
under Order XXI, rules 99 to 103 C.P.C. and
section 96 C.P.C. (appeal against the order/
judgment) etc. Though there is no bar to
concurrently invoke more than one remedy at
the same time against an ex-parte order/
judgment. However, once election or choice
from amongst two or more available remedy is
made and exhausted, judgment debtor cannot
ordinarily be permitted subsequent to venture
into other concurrently or coexisting available
remedies.”
CIVIL PETITION NO. 1965 OF 2019 13

13. Accordingly, no exception to the finding of the Bench of the

High Court is called for. Instant petition is dismissed and leave to

appeal is declined. The above are the reasons for our short order of

even date, which reads as follow:

“For reasons to be recorded later, this petition

is dismissed and leave declined.”

JUDGE

JUDGE
ISLAMABAD
9th October, 2019
arshed/* Approved for Reporting