MUHAMMAD ASGHAR vs STANDARD INSURANCE COMPANY LIMITED through Managing Director, Standard Insurance Company Ltd. and 5 others

' IQBAL HAMEED-UR-RAHMAN, J.- This writ petition has been filed against the impugned order dated 19-11-1995 whereby, the learned District Judge, Vehari set aside order, dated 7-2-1995 passed by the learned Civil Judge, Vehari and directed him to return the plaint of the plaintiff/petitioner so that it can be filed before the Civil Court at Karachi.

2. The brief facts necessary for the determination of the instant writ petition is that the petitioner filed a suit for mandatory injunction against respondents Nos.1 to 4 before the Civil Court at Vehari.

In the said suit the respondent/defendant No,1 raised preliminary objection with regard to jurisdiction of the Civil Court at Vehari on the ground that under clause (21) of the Fire Policy of the Standard Insurance Company Limited, in case of any dispute, it was agreed that the Civil Court at Karachi shall have the jurisdiction to adjudicate upon the matter. Respondent No, 1 moved an application under Order VII, rule 10, C.P.C.

' It is pertinent to mention here that said objection was raised only by respondent No,1. The petitioner resisted the application and the learned Civil Judge, Vehari after hearing the parties proceeded to dismiss the application vide order, dated 7-2-1995. Respondent No,1 being aggrieved of the order of the learned Civil Judge, Vehari preferred revision petition, which was accepted by the learned District Judge, Vehari vide impugned order, dated 19-11-1995. Learned District Judge while relying upon the judgment of the Honourable Supreme Court in the cases of Messrs Kadir Motors (Regd) Rawalpindi v. Messrs National Motors Ltd. Karachi 1992 SCM R 1174 and State Life Insurance Corporation of Pakistan v. Rana Muhammad Saleem 1987 SCM R 393 has held that the parties can of course, mutually agree and select for determination of their disputes in an particular Court having territorial and pecuniary jurisdiction and resultantly set aside order, dated 7-2-1995 of learned Civil Judge, Vehari directing him to return the plaint to the petitioner/plaintiff for its presentation before the Civil Court at Karachi, hence this Constitutional petition.

3. The writ petition was filed in the year 1995 and by passage of time it appears that the respondents have become disinterested as is apparent by order, dated 12-5-2005 wherein respondents Nos.3 and 4 have requested for deletion of their names from the array of the respondents, which was not opposed by the petitioner. The other contesting respondents who had earlier been appearing also subsequently failed to appear and after repeated notices were proceeded against ex parte.

4. It is contended by the learned counsel for the petitioner that it is to be seen whether any specific ascent was given by the petitioner to the Insurance policy/agreement. It is contended that the same had not been accepted or signed by the petitioner, as such it is not binding upon the petitioner. Learned counsel refers to section 2(b) and (e) of the Contract Act, which signifies that the ascent of the parties is paramount and the same is obtained when it is accepted and signed. It is added that the said Insurance Policy cannot be considered as an agreement between the parties as the same has never been signed by the parties. Learned counsel further contended that the objection with regard to jurisdiction was only raised by respondent No,1 and respondent No,2 has not objected to the jurisdiction of the Civil Court at Vehari, it was governed by a separate policy, as such the suit could be proceeded against respondent No,2 at Vehari and to the extent of respondent No,2 the suit is maintainable. It has vehemently been argued that if there is any clause in the Insurance Policy putting restriction on the jurisdiction of the Court, the same is in violation of section 28 of the Contract Act under which any agreement restraining a person from enforcing his right is void to that extent. Learned counsel in support of his submission has relied upon the case of Messrs Kadir Motors (Regd.) Rawalpindi (supra).

5. Arguments have been heard and the record is also perused.

6. The point involved in this constitutional petition is applicability of clause (21) of the Fire Policy of the Insurance Company, which reads as under:-- "(21) It is hereby declared and agreed that in case of any claim arising in respect of the property hereby insured the same shall be settled and paid in Karachi and the entire cause of action shall also deemed to arise in Karachi and further that all legal proceedings in respect of such claim shall be instituted in the competent Court in the City of Karachi only."

' From the perusal of the Insurance Policy placed on record , it is evident that the same does not bear the signatures of the petitioner.

7. Insurance Policy is issued by the Insurance Company on certain terms and conditions with its own signatures. It does not necessarily have the signatures of the other party. The petitioner has filed the suit against the respondents based upon the said Insurance Policy. Naturally he had accepted the terms and conditions of the Insurance Policy before obtaining the same, as is evident from the plaint of the suit for mandatory injunction. The petitioner on the one hand, is invoking the other terms and conditions stated in the policy while on the other hand refused to accept clause

(21) of the same Policy. If the stand of the petitioner is accepted then his whole case before the Civil Court will be affected and principle of estoppel will be urged against him, which will hamper his claim before the Civil Court. It is quite obvious that the petitioner obtained the policy of respondent No,1 and accepted all the terms and conditions in toto.

8 . In view of the above discussion, it cannot be said that the terms and condition incorporated in the policy had not been accepted by the petitioner. Learned District Judge has rightly decided the matter while relying upon the law and dictum of the Honourable Supreme Court of Pakistan. The impugned order does not call for any interference by this Court in the exercise of constitutional jurisdiction.

9. For what has been said above, the writ petition is without any substance of force. The same is dismissed with no order as to costs.