EFU LIFE INSURANCE LTD. Versus Mst. RUKHSANA MANZOOR

SHAHID BILAL HASSAN, J.--- Succinctly, the respondent filed an application for claiming of policy proceeds under policy No.225550/39-EP and No.225551/39-EP amounting to Rs.750,000/- and Rs.500,000/- respectively along with liquidated damages under section 118 of the Insurance Ordinance, 2000. The present appellant filed written statement and raised preliminary as well as factual objections. Question of jurisdiction has also been raised. The learned Court below out of the divergent pleadings of the parties framed issues. During pendency of the application, the present appellant filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 seeking rejection of the application, which was duly resisted by the respondent. The learned Court below vide order dated 04.02.2017 disposed of the said application with the observation that the present appellant may file an application under Order VII, Rule 10 of the C.P.C. first if he considers that this Tribunal has got no jurisdiction to entertain this application. Later on, the appellant was proceeded against ex parte and application for setting aside the same was accepted on 01.03.2018 subject to payment of costs. However, on 25.09.2018, again the appellant defaulted and was proceeded against ex parte and the appellant filed application for setting aside ex parte proceedings on 22.04.2019, which was dismissed being barred by time vide impugned order dated 26.09.2019 and ex parte decreed the claim with costs as prayed for along with liquidated damages at the rate of 5% higher to the base rate under section 118 of the Insurance Ordinance, 2000. Therefore, the instant appeal has been preferred.

2. Heard.

3. It is a settled principle of law that question of law even if not taken or raised by the party, could be considered by the Courts themselves even at appellate and revisional stages. In judgment reported as United Bank Limited and others v. Noor-Un-Nisa and others (2015 SCMR 380), the Apex Court of the country held that:--

'Under section 3 of the Limitation Act, 1908, it is the bounden duty of every Court of law to take notice of the question of limitation even if not raised in defence by the other contesting party(s).

Earlier to the above said celebrated judgment, the Hon'ble Supreme Court of Pakistan dealt with the same proposition in Lahore Development Authority v. Mst. Sharifan Bibi and another (PLD 2010 Supreme Court 705) and Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali through Legal Heirs and 4 others (1992 SCMR 2435).

Perusal of the written reply submitted by the present appellant goes to make it diaphanous that preliminary objections with regards to jurisdiction and limitation were raised by the appellant but the learned Court below without considering the same and dilating upon the said questions of law proceeded to ex parte decree the claim of the respondent, which is against the myth and scheme of law, because a Court seized of the matter first has to determine whether it enjoys the, jurisdiction to entertain the subject matter and whether the lis has been instituted or filed within limitation prescribed under law and then to proceed with the matter further. However, in the instant case, no such exertion has been made by the learned Court below despite the fact that such objections were raised by the appellant in his written reply and issues in this respect were framed. The learned Court below did not bother to give issue-wise findings. In this backdrop, such practice cannot be allowed to prevail. Therefore, we allow the appeal in hand, set aside the impugned order dated 26.09.2019 and by allowing the application for setting aside ex parte proceedings filed by the appellant, remand the case to the learned Court below with a direction to grant right of cross-examination to the appellant on the witnesses produced by the respondent and record evidence of the appellant, where-after decide the case afresh, within a period of three months from the date of receipt of certified copy of this judgment. The adversaries are directed to appear before the learned Court below on 29.09.2021.

SA/E-4/L Appeal allowed.