BENGAL WOOL HOUSE Versus STANDARD INSURANCE CO. LTD.
1. The plaintiff No.l is a partnership firm. which was carrying on business in Dacca of which plaintiffs Nos.2 and 3 are the partners. They carried on business at Dacca and Karachi. In Dacca their shop was situated at Jinnah Avenue in a seven storeyed building where the plaintiffs had stocks of trade and business of the total value of over Rs.7,00.000. The fixtures and fittings were worth Rs.50,000. The plaintiffs had insured their stock in trade, furnitures, fixtures of and fittings with defendant No.1 against loss and or damage by fire, riot and strike. The defendant No.l had issued two policies of Rs.1,00,000 each which were valid for a period of one year from 5‑11‑1970 to 25‑11‑1971. The plaintiffs had paid the premium to the defendant No.l. The plaintiffs had also obtained from Eastern Federal Union Insurance Co. Ltd. two fire policies one of which was dated 21‑11‑1970 for Rs.5,00,000 and the other dated 27‑8‑1970 also for Rs.5,00,000. These policies are not subject matter of. this. suit. In respect of these policies suit No.79/1974 has been filed. On 1‑3‑1971 as a result of disturbances miscreants and hooligans ransacked, burnt and looted the stock in trade and business, fixtures and fittings belonging to the plaintiffs. A first information report was lodged with the police and case No.14, dated 2‑3‑1971 was registered at Ramna Police Station Dacca. With the help of the Deputy Superintendent of Police to a shutters of the shop were immediately repaired and closed to avoid further losses. Due to strike in Dacca the shops remained closed on 2‑3‑1971 and 3‑3‑1971. In the evening of 3‑3‑1971 when the plaintiff No.2 visited the afore stated shop he found that miscreants had again broken the shutters of the shop and looted the remaining stocks and set fire to the shop which had caused damage to the building and all the stock, fixtures and fitting were destroyed. Again first information report was lodged on 4‑3‑1971. The defendant No‑1 was informed about the aforesaid occurrence and claim was lodged by and on behalf of the plaintiffs. The defendant No.l appointed Alliance Enterprises as its surveyor who started investigation of the plaintiffs' claim. The East Pakistan Fire Service and Police investigated the matter and submitted reports dated 2/3‑3‑1971 and 26‑5‑1971. The police and M/s. Alliance Enterprises also submitted their reports. The surveyor recommended payment of Rs.1,62,083.94 for the stock. By the same report the surveyor also found plaintiffs' claim to be proved and recommended payment of Rs.4,37,916.06 by Eastern Federal Union Insurance Co. Ltd. in respect of which separate suit being Suit No.79 of 1974 has been filed. When the plaintiffs' claim for Rs.1,62,083.94 was ripe for payment by defendant No. l Civil Commotion Compensation Fund Ordinance, 1971 was promulgated in August, 1971. The defendant No. 2 then entered into correspondence with the plaintiffs and treated their aforesaid claim covered by the said Ordinance. The defendant No.2 by letter dated 13‑10‑1971 acknowledged receipt of the plaintiffs statement of claim for the aforesaid loss and damage and asked them to furnish, certain documents and information which were promptly complied with by letter dated 14‑10‑1971 . The defendant No.2 by letter dated 20‑10‑1971 appointed Messrs M.M. Rahman Chartered Accountants to verify the plaintiff's claim from the books of accounts. All relevant documents were forwarded to the said Chartered Accountant including the trading account certified by the income Tax Department for the assessment year 1970‑71 and the statement of account held with the banks. The defendant No.2 however delayed the payment and in the meantime Civil Commotion Compensation Fund Ordinance, 1971 was repealed on 5‑8‑1972. On repeal the defendant No.2 informed that the claim was not payable under the Ordinance. The plaintiffs by notice dated 3‑1‑1973 called upon the defendant No.l to make payment of the claim which repudiated its liability on the ground that in view of the repealing Ordinance the defendant No.l was not competent to deal with the claim. The plaintiff has claimed Rs.1,70,000 which comprises of Rs.1,62,083.94 under the policies and Rs.7,916.06 as damages and interest.
2. The defendant No.l filed its written statement in which it was stated that the policies were issued in favour of Standard Bank Limited as mortgagee and the plaintiffs firm as mortgagers therefore they have no right to sue. It has been further pleaded that the suit is barred under condition 19 of the policies. The loss is outside the scope of the policies as the incident is covered by condition number six of the endorsement attached to the policies. The liability of the defendant No.l ceased on promulgation of the Civil Commotion Compensation Fund Ordinance, 1971. The defendants have admitted that the plaintiff's firm carried on business .in ready made garments at Dacca in shop at 5 Jinnah Avenue, but the value of trade stock, fixtures and fittings have been denied. The defendants have admitted to have issued two policies of Rs.1,00,000 each covering risk, damage and loss by fire and also covering strike for a period up to 25‑11‑1971. It was admitted that on 1‑3‑1971 some damage and loss was caused to the stock in trade and fixtures and fittings ii the shop of the plaintiffs as a result of civil commotion in East Pakistan which had assumed the proportion of and amounted to a popular rising in which miscreants and hooligans acted at .the instance and on behalf of the Awami League whose activities were directed towards the overthrow of the Pakistan Government and or to influence the Government by terrorism and violence. The incident fell within the exception of condition 6 of the riot and strike endorsement and thus loss is outside the scope of the policies. The defendant No.l has admitted that the incident on 3‑3‑1971 was caused by the miscreants and hooligans who were acting on behalf of and at the instance of the Awami League but pleaded that this was also covered by the exception clause. The defendant No.l admitted that the plaintiffs lodged a claim and surveyor was appointed but liability was not admitted. The surveyors submitted their report which was without prejudice and subject to the terms and conditions and warranties of the policies. It has been pleaded that in view of the promulgation of Civil Commotion Compensation Fund Ordinance, 1971 the liability of the defendant No.l ceased. It has been denied that the defendant No.l.had agreed to pay Rs.16,283.94 to the plaintiffs. The liability of the defendant No.l ceased after the repeal of the Ordinance and the said liability did not revive. In any case the liability came to an end under clause 19 of the policies after expiry of 12 months from 1‑3‑1971 when the loss happened.
3. The defendants Nos. 2 and 3 also filed their written statement in which they pleaded that the plaintiffs are not a registered firm. It has been pleaded that the plaintiffs have no insurable interest in the goods in question and these defendants were not aware of the insurance policies obtained from defendant No.l. It has been pleaded that at the relevant time the conditions were not confined to riots and civil commotion but there was an open war and revolution and a parallel Government was established in East Pakistan. It has been pleaded that as the goods had been lost before the promulgation of the Civil Commotion Compensation Fund Ordinance, 1971 the loss could not be covered under it. It has been denied that M.M. Rehman and Company had prepared any report and after repeal of the Ordinance no claim can be paid to the plaintiffs. The plaintiff's claim was thus repudiated. On the basis of the pleadings the following consent issues were adopted:
(1) Whether the suit is incompetent and not maintainable and bad for non‑joinder of necessary parties?
(2) Is the suit barred by section 69 of the Partnership Act?
(3) Whether the plaintiffs have no cause of action against the Defendants or any of the Defendants?
(4) Whether there was any breach of warranty of the policies?
(5) Whether the suit against the Defendant No.l is barred under condition No.19 of the Policies?
(6) Whether the plaintiffs have suffered any loss due to the occurrence on 1‑3‑1971, 2‑3‑1971 and 3‑3‑1971, and if so to what extent?
4. 7) Whether the Surveyors Messrs Alliance Enterprises appointed by the defendant No.l found the plaintiffs' claim established and recommended payment of Rs.1,62,083.94 in settlement of the plaintiffs' claim against the policies by the Defendant No.‑1, whether the assessment and recommendation of the Surveyors are binding on the Defendant No.l?
(8) Whether the occurrence in question amounted to a peril insured under the Policies issued by the Defendant No.l in view of condition 6 of the Riot and Strike Endorsement?
(9) Whether after the promulgation of the Civil Commotion Compensation Fund Ordinance, 1971 the claim of loss in suit ceased or suspended to be payable under the contract of insurance? If so, whether after the repeal of the Ordinance the liability, if any, of the Defendant No.l, which ceased or suspended, was revived and continued?
(10) Whether the loss in suit was not covered under the Civil Commotion Compensation Fund Ordinance 1971 as alleged by the Defendants Nos.2 and 3? If the liability was once covered by the Ordinance whether the same could be taken away by the Repealing Ordinance?
5. 11) Whether the repudiation of the plaintiffs' claim by the Defendants is legal and valid?
(12) Whether the claim of the plaintiffs is maintainable against the defendants or any of the defendants?
(13) Whether the plaintiffs are entitle, any relief or reliefs and if so to what extent?
6. ISSUE No. 1: The defendant No.l had issued the insurance policies Exh.5/4 and Exh.5/5. Both these policies were issued in the name of Standard Bank Limited, Jinnah Evenue, Dacca as mortgagee and Bengal Wool House, Jinnah Road, Dacca as mortgagor. Therefore, the policies were issued in the joint name of the plaintiff No.l and Standard Bank Limited as insured. The policies also provided that they were subject to bank mortgage clause which was attached to the policy and provides as follows:
7. 'It is hereby declared and agreed that
(i) Upon any money becoming payable under this policy the same shall be paid by the Company to the Bank and such part of any moneys so paid as may relate to the interest of other parties insured hereunder shall be received by the Bank as agents for such other parties.'
8. Therefore, the Standard Bank Limited was to receive the money under the policies. The defendant No.l has taken the plea that the suit has been filed by the plaintiffs without joining Standard Bank Limited, one of the beneficiaries and solely entitled to receive money claimed under the policy and therefore it is not maintainable. It has been contended that the bank should have been joined as co‑plaintiff and if it was not agreeable to be joined as such, it should have been joined as a defendant. Mr. Anis Ahmad the learned counsel for the plaintiffs has contended that the right of the plaintiffs has not been taken away and, therefore, it is entitled to file the suit. Mr. Lari has referred to section 45 of the Contract Act and relying on Jaffar Khan v. Muhammad Achar PLD 1961 Kar. 335 has contended that the plaintiffs could not have filed the suit in their name alone. In Jaffar Khan's case it was observed as follows:‑
9. " ....Truly speaking, the question for consideration in this case is what is the effect of not joining Seth Muhammad Ibrahim as plaintiff in respect of the two contracts entered into on the 12th of April 1951. Under section 43 of the Contract Act where two or more persons have made a joint promise, the promisee may, in the absence of express agreement to the contrary, compel any of such joint promisors to perform the whole of the promise, and on this basis the fact that Miro Khan who was one of the promisors in respect of the contract (Exhs.36) was not joined will not have a far‑reaching effect on the maintainability of the suit against the appellant but under section 45 of the Contract Act the right to claim performance of a promise in the case of joint promisees rests within them during their life‑time and one promisee alone cannot maintain a claim against the promisor in respect of contract entered into by them. In view of this important provision of law it was necessary for the respondent to allege in the plaint that the rights of Seth Muhammad Ibrahim arising out of contracts (Exh.36 and 37) have either been assigned to him or that he was not joined as a party to the claim arising out of these contracts for some other congent reasons, but no such allegation is made in the plaint.'
10. ... .In our opinion, on the evidence on the record it is absolutely clear that Seth Muhammad Ibrahim should have been joined in respect of the claims arising out of the contracts (Exhs.36 and 37) and the respondent is neither entitled to claim the refund of the amount paid as advance from the appellant nor is he entitled to claim any damages from him in respect of the alleged breach of the said contracts. We are, therefore, clearly of the view that the learned Subordinate Judge was wrong in awarding any decree in respect of the claim arising out of the contracts."
11. The learned counsel for the defendant No.l has relied or. Kishan Lal and others v. Chandiya Bala and others 75 I.C. 917 where it was observed that 'under section 45 of the Contract Act in regard to a promise made to two or more persons jointly proceedings to enforce the claim must be taken by all promisees and that a suit brought by one of several creditors or partners is liable to be dismissed'.
12. In the present case the defendant No.l had issued the policies in the joint names of the plaintiff No.l and Standard Bank Limited.lA The policy was subject to Bank mortgage clause. By virtue of 'Bank' mortgage endorsement any amount payable under the policy was to be paid to the Standard Bank Limited. The plaintiffs have not alleged in the plaint nor any evidence has been produced to prove that the mortgage debt has been satisfied or that the Bank has assigned the right to claim benefits under the policy to them. No explanation has been offered by the plaintiffs for not joining the Bank as a party. D. W. Muhammad Ilyas has produced two letters Exhs.6/1 and 6/2 by which the Bank had claimed the amount payable under both the policies. These documents have been exhibited without any objection. In these facts and circumstances the plaintiffs are not entitled to file the suit in their name alone. My finding is in the affirmative.
13. Issue No.2. Not pressed
14. Issue No.3 . Not pressed
15. Issue No.4 . Not pressed
16. Issue No.5
17. The plaintiffs had obtained insurance policies from defendant No.l condition number 19 of which reads as follows:‑
18. "In no case whatever shall the company be liable for any loss or damage after expiration of 12 months from the happening of the loss or damage unless the claim is the subject of pending action or arbitration."
19. Mr. Lari, the learned counsel has contended that as the plaintiffs have filed the suit after expiry of 12 months from the happening of the loss or damage and there being no pending action or arbitration, the defendant No.l is not liable for the plaintiffs' claim. On the other hand Mr. Anis Ahmad, the learned counsel for the plaintiffs has contended that there was a pending action and, therefore, the liability of the defendant No.l subsists. In this regard the learned counsel for the plaintiffs has referred to correspondence exhibit 5/11 (exhibit 5/32) and subsequent letters which were exchanged between the parties whereby the defendant No.l had appointed surveyor and the plaintiffs had been making and pressing their claim against the defendant No. 1. It is after promulgation of Civil Commotion Compensation Fund Ordinance, 1971 that defendant No.l by letter dated 18‑1‑1973 (Ex.5/33) repudiated its liability. It has been contended that although the defendant No. 1 was liable for the claim under the policy but due to operation of this Ordinance the compensation was payable by the Pakistan Insurance Corporation and the Government of Pakistan also. In these circumstances according to the plaintiffs there was a pending action. It is an admitted position that the parties did not refer the matter to the arbitration. Admittedly suit was filed on 27‑2‑1974 whereas the loss due to the occurrence was suffered on 1‑3‑1971, 2‑3‑1971 and 3‑3‑1971. Therefore, the suit has been filed beyond the period of 12 months from the date of the loss. If the plaintiffs succeed in establishing that there was a pending action between the parties, the bar of clause 19 referred above will E not apply. According to Mr. Lari pending action means any action, suit or proceeding which has been filed in any Court of law or before an arbitrator and has not been disposed of. On the other hand Mr. Anis has contended that pending action refers to action which may be taken by a party even by making a claim against the defendant No.l without referring to arbitration or approaching the Court and so long it is not accepted or rejected it remains a pending action Mr. Lari has referred to Sargodha Corporation Company v. New Insurance Company PLD 1982 Kar. 627. In this case similar clause in the insurance policy came up for consideration before the Bench which after exhaustively discussing several judgments of various High Courts observed that such a clause was not hit by sections 23 and 28 of the Contract Act. Mr. Anis has attempted to distinguish it on the plea that in this case question of pending arbitration or pending action was not under consideration. Identical clause came up for consideration in Baharat Bank Limited v. General Insurance Company Limited where it was observed that the word 'action' as used in clause 19 in the policies may be taken to have meaning wide enough to cover an application to a Court under section 20 of the Arbitration Act.
20. The words 'pending action' refer to such cases or matters which have not been decided or disposed of. The pendency should be before any forum, agency, authority, arbitrator or Court to which a party may be entitled to apply for adjudication, settlement or decision C of its claim. The word 'action' means any proceeding by which a claim, complaint or proceeding for obtaining relief is filed before any Court, arbitrator, agency or authority competent to decide, adjudicate or settle the dispute between the parties. Mr. Anis Ahmad the learned counsel for the plaintiffs has referred to Bharat Bank Ltd. and another v. Ruby General Insurance Co. Ltd. AIR 1951 Pb. 97 in which the meaning of the word 'action' has been explained as follows:‑
21. ' The word 'suit' certainly has the more restricted meaning of the two words and therefore the inevitable conclusion is that the word 'action' is intended to have a wider meaning than the word 'suit'. As a matter of fact, when he was asked what the meaning of the word 'action' in the terms of the policy was, the learned counsel for the respondent, although he tried to maintain that for the purpose of clause 19 the word was synomymous to 'suit', at another time said that the word 'action' must be taken to have its meaning in English Law. This meaning is obviously very wide indeed if we are to rely on the authority of Halsbury, than which it does not seem there can be any better authority. Indeed, the definitions of the word 'action' contained in other Law Dictionaries & Lexicons appear to be based on Halsbury. In the circumstances I am of the opinion that the word 'action' as used in C1.19 in the Policy must be taken to have meaning wide enough to cover an application to a Court under section 20, Arbitration Act, for the filing of an agreement to refer to arbitration.' In this regard reference has also been made to Messrs Rah‑e‑Manzil Transport and others v. Muhammad Ameen PLD 1963 Kar. 182 where the meaning of action as defined in Halsbury's Laws of England III Edition Volum 1 at page 2 was quoted as follows:‑
22. ' An 'action', according to the legal meaning of the term, is a proceeding by which one party seeks in a Court of Justice to enforce some right against, or to restrain the commission of some wrong by another party. More concisely it may be said to be 'the legal demand of a right', or 'the mode of pursuing a right to judgment'." Applying the above meaning to the present case it is to be considered whether any action was pending within a period of 12 months from the date of occurrence disentitling the defendant No.l from claiming the benefit of condition No.19. The incident occurred on Ist, 2 nd and 3rd March, 1971 . The plaintiffs were in correspondence with the defendant No.l which had taken necessary steps to ascertain their claim when on 10‑8‑1971 Civil Commotion Compensation Fund Ordinance, 1971 was promulgated. Under this Ordinance a surcharge was levied and claim was to be assessed, ascertained and paid by the Government of Pakistan. Consequently the defendant No.l asked the plaintiffs to seek their remedy from the Pakistan Insurance Corporation to which the authority to decide,, such claims and make payment had been delegated by the Government of Pakistan. Correspondence between the parties ensued and although the plaintiffs had supplied all the necessary documents to prove their claim no decision was taker on Pakistan Insurance Corporation. The ordinance was repealed on 13‑9‑1972 and till then the claim of the plaintiffs had not been rejected or accepted. It was kept pending. After repeal in view of the provision made in the repealing Ordinance that no claim shall be paid out of the fund created tinder the Ordinance the defendant No.2 rejected he claim. It is to be considered whether pursuing the claim before Pakistan Insurance Corporation which was .exercising authority under he Ordinance as delegated by the Government cf Pakistan, could be treated as a pending action. The Government through the Pakistani Insurance Corporation was settling and paying the claims under all procedure laid down by the Ordinance. The Ordinance further provided for an appeal if a claim was not properly decided or rejected. Therefore, by this Ordinance a forum had been created for deciding the claims for ,compensation under the policy and an aggrieved party could even file an appeal. Keeping all these facts in view the filing of claim with the Pakistan Insurance Corporation the defendant No.2 would amount to an action as contemplated by clause 19. This clause provides that if no action is pending at the time when 12 months period from the happening of the loss or damage expires, the defendant No.l shall not be liable for the loss or damage. The plaintiffs had filed their claim before the defendant No.l which was transferred by it to defendants Nos.2 g 3 after 10‑8‑1971 and the same was pending till 13‑9‑1972 then the Ordinance was repealed. In these circumstances the bar imposed under clause 19 will not apply and the limitation will be governed by Article 83, providing limitation of three years. My finding is in the negative.
23. Issue No. 6 The plaintiffs have filed report of the surveyor to prove the loss. The police report confirms the incident and loss which happened on 1st. 2nd and 3rd March. 1971, The surveyor appointed by defendant No.l did survey the shop of the plaintiffs and ascertained the amount of loss. The plaintiffs' witness Ex.5 has stated facts with regard to occurrence of the incident and quantum of loss which have not been challenged specifically. The plaintiffs have thus suffered a loss of Rs.1,62,083.94 as stated by the surveyor which had recommended payment in settlement of plaintiffs' claim subject to the conditions of the policies issued by the defendant No. 1.
24. Issue No.7.
25. The surveyor Alliance Enterprises was appointed by defendant No.l which had submitted its report Ex.5/8. According to this survey report the defendant No.l is liable to pay Rs.1,62,083.94 under two policies subject to admission of liability. As the defendant No.l had appointed the surveyor its report is binding on it. My finding is in the affirmative.
26. Issue No.8 .
27. This is one of the hotly contested issues between the parties. In this regard Mr. A. Rauf, the learned counsel for the defendant ho.2 has devoted sufficient time to show that the incidents due to which loss was caused to the plaintiffs are not covered by riot and strike endorsement. The policies contained a riot and strike endorsement condition No.6 which runs as follows:‑
28. 'This insurance does not cover any loss or damage occasioned by or through or in consequence, directly or indirectly, of any of the following occurrences, namely:‑
(a) War, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not), civil war.
(b) Mutiny, civil commotion assuming the proportions of or amounting to a popular rising, military rising, insurrection, rebellion, revolution, military or usurped power ,or any act of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrow by force of the Government de jure or defacto or to the influencing of it b) terrorism or violence. According to this condition any loss inter alia caused due to war, invasion, mutiny, civil commotion assuming the proportions of or amounting to popular rising, or revolution, will not be covered under the policies. Mr. Rauf the learned counsel has contended that on Ist, 2nd and 3rd of March, 1971 in the then East Pakistan conditions like mutiny, civil commotion assuming proportions or amounting to popular rising were operating and, therefore, the defendant No.l is not liable to compensate the plaintiffs.
29. In this regard Mr. Rauf, the learned counsel has referred to the following books:‑
(1) Keesing's Research Report 9 Pakistan from 1947 to Creation of Bangladesh
(2) Pakistan's Crises in Leadership by Fazal Muqeem Khan
(3) Witn ess to Surrender by Siddiq Salik
(4) White Paper issued on the crises of East Pakistan on 5 August 194L1 by the Government of Pakistan and
(5) Pakistan: Failure in National Integration by Rounaq Jahan Reference can also be made to The East Pakistan Tragedy by L. Rushbrook Williams.
30. In Keesing's Research Report 9 recounting the events during March 1971 it has been stated that the National Assembly was due to meet in Dacca for its first session on March, 1971. President General Yahya Khan announced his decision to postpone indefinitely the opening of the National Assembly, in order to allow the leaders time to settle the question of framing a Constitution. This led to general strike in Dacca and angry demonstrations. On March 6 President General Yahya Khan announced that the inaugural session of the Assembly would take place on 25‑3‑1971, Sheikh Mujibur Rehman put forward conditions for Awami League's participation in the Assembly session. The book at page 109 states:‑
31. 'While calling for a continued hartal (general strike) in Government offices and the law Courts until these conditions were accepted, and urging the people of East Pakistan to stop payment of taxes and revenues to the Government until power was transferred to the people's representatives, Sheikh Mujibur Rehman said there was still time for us to live as brothers if things are settled peacefully. President General Yahya Khan arrived in Dacca, on March 15 for talks with Sheikh Mujibur Rahman. By then the strike had entered the third week. As no settlement could be reached President Yahya Khan postponed the session of the National Assembly to unspecified date and returned back to West Pakistan on March 25. 'Full scale civil war erupted in East Pakistan on March 26, 1971 when a clandestine radio broadcast announced the proclamation by Sheikh Mujibur Rehman and the Awami League of the 'Sovereign Independent People's Republic of Bangladesh'.
32. Reference has been made to Blood and Tears by Qutubuddin Aziz in which the terrorist activities have been accounted. In the introduction it has been stated that in the first week of March 1971 the Awami League had fired, the first salvo of revolt in East Pakistan and it triggered off a forest fire of lawlessness, arson, loot and wanton murder all over the province. At page 16 it has been stated that on March 3 the general strike ordered by the Awami League all over the province, paralysed life in Dacca. Rampaging mobs, led by militants, carried fire, terror and death into the homes of thousands of non‑Bengalis under the order of Awami League High Command, the Radio and Television Stations in Dacca gave up playing Pakistan's National Anthem and replaced it by the 'Bangladesh Anthem'. From March 4 to 10 violent mobs led by Awami League jingoes, looted and burnt many non‑Bengali houses and shops and kidnapped rich West Pakistani businessmen for ransom. On six March there was a jail break of Central Prison in Dacca and 341 prisoners escaped. 'On March 7 Sheikh Majibur Rehman announced his long range action programme against the Federal Government at a mass meeting on the Ramna Race Course Ground. Unfurled on the platform was the new flag of Bangladesh.' Pakistan's Crises in Leadership by Fazal Muqeem Khan, at page 56 it ‑has‑been stated that ' c lowers of the Awami League and the people under the influence revolted on March 1. They were joined by the extremists of other parties and communists of all hues and colours who were already preparing and biding their time for just this kind of opportunity to start with. It was not a revolt against Pakistan or its ideology. It was a revolt against dictatorship. Sheikh Mujibur Rahman, even if prudence had dictated him, could not keep in a low key the forces of anger. The. Remaining books referred by Mr. A. Rauf corroborate these facts. Reference can also be made to The East Pakistan Tragedy by L. Rushbrook Williams. In Appendix 5 of the book the instances of lawlessness and violence committed by Awami, League prior to March 25, 1971 have been .stated. According to the author on 'March 1 Shaikh Mujibur Rahman called a strike in Dacca to protest against the temporary postponement of the meeting of the National Assembly. Awami Leagurs looted Naryan Gaj Rifle Club for arms which were collected by the student militants in the Iqbal and Jagannath Halls of Dacca University. During the night there was wide spread looting.
33. On March 2 fire‑arm shops were looted. Mobs with fire‑arms raided business premises in Jinnah Avenue and Baitul Makarram'. On March 3 violence spread to other areas also. Loot and arson was rampant. 'Shaikh Mujibur Rahman announced a Civil disobedience movement to 'secure the rights of the people of Bangladesh Radio and Television were compelled to play the new Bangladesh National Anthem.' On March 5 telephone and telegraph employees stopped work on Awami League's orders. On March 6 Jail break was reported. On March 7 Shaikh Mujibur Rahman proclaimed plans for running a parallel Government and issued directions for non‑payment of taxes, closure of all Government offices, Courts and educational institutions. From all these books which narrate incidents, facts and happenings during March 1971 and onwards it seems established that the agitation in East Pakistan was started by making political demands but the situation turned to worst and from the date when the session of National Assembly was postponed the agitation which had started from earlier than March 1971 assumed the proportion of mutiny and revolution which included boycott of the Government offices, non‑payment of taxes, control of information media, formation of parallel Government and loot, arson and massacre of non‑Bangalis. This process continued culminating in declaration of independence and creation of Bangladesh to which stamp of success was given by military intervention of India. In this regard Mr. Rauf has referred to Rauf & Co. Ltd. v. Alpha Insurance Co. Ltd. PLD 1981 Kar. 457, while referring to the aforestated books it was observed that the facts and conditions prevailing in the then East Pakistan were not akin to riot or civil commotion. In this judgment the meaning of the term civil commotion as given in the Strouds Judicial Dictionary, IV edition has been quoted as follows:‑
34. 'A civil commotion' within an exception to a fire policy means 'an insurrection of the people for general purposes, though it may not amount to a rebellion,, where there is an usurped power.'
(2) An organised conspiracy to commit criminal acts without more does not amount to civil commotion.
(4) Fire Policy.‑ The following definition of this phrase in Wellford and Otter‑barry's Fire Insurance, 3rd Edn., p.64, was approved:‑
35. This phrase is used to indicate a stage between a riot and a civil war. It has been defined to mean an insurrection of the people for general purposes, though not amounting to rebellion; but it is probably not capable to any very precise definition. The element of turbulence or tumult is essential; an organized. conspiracy to commit criminal acts, where there is no tumult or disturbance until after the acts,. does not amount to civil commotion. It is not, however, necessary to show the existence of any outside organisation at whose instigation the acts were done.
36. Any agitation, demonstration or movement though started peacefully in organised manner leading to violent or terrorist activities for a common purpose to overthrow the existing Government amounts to Civil Commotion. In degrees and stages Civil Commotion is at a higher and intensive level than riot and is short of civil war. In the present case the incidents which has' been recounted lead to the conclusion that the incidents on lst, 2nd and 3rd March indicate that they were a chain and link with the previous incidents growing into a civil commotion assuming the proportion of mutiny.
37. Mr. Anis has contended that the incident in the referred case occurred in April and not in early March as in the present case. There the loss was suffered during March/April 1971. In any event the incidents on Ist, 2nd and 3rd March, 1971 were part of civil commotion which assumed the proportion of a popular rising, rebellion and revolt. My finding is in the negative.
38. Issue No.9
39. As discussed above the Civil Commotion Compensation Fund Ordinance 1971 hereinafter referred as the Ordinance provided that the loss suffered during war and‑violence in East Pakistan was to be paid by the Fund. However, this Ordinance was repealed by Civil Commotion Compensation Fund (Repeal) Ordinance, 1972 (Ordinance XXXII of 1972) which provided that no compensation shall be paid out of the fund. Both the learned counsel agree that after repeal of the Ordinance the liability of defendant No.l under the policy did ` not cease to exist. After the repeal the liability of defendant No.l under the policy continued subject to its conditions and exception.
40. Issue No.10.
41. In view of discussion in issue No.9 the incidents on Ist, 2nd, and 3rd March, 1971 were a part of civil commotion which assumed the proportion of mutiny. The loss suffered by the plaintiffs on these dates is, therefore covered by the provisions of Civil Commotion Compensation Fund Ordinance 1971. This Ordinance was repealed by F Ordinance XXXII of 1972 which specifically provided that no payment shall be made out of the fund after the repeal. Therefore, no claim could be made against the defendants Nos.2 and 3 by invoking the provisions of this Ordinance. In this regard reference can be mad to Rauf and Co. Limited v. Alpha Insurance Co. Limited PLD 1981 Kar. 457 and Messrs Haji Razak Haji Habib Janoo v. The Islamic Republic of Pakistan and 2 others 1986 CLC 740. The liability was created under the Ordinance and as the repealing Ordinance prohibits any payment after repeal the liability so created does not exist. Finding accordingly. .
42. Issues Nos.ll and 12 : Not pressed.
43. Issue No.13 : Suit dismissed with no order as to costs.
44. A . A. /B‑104/ K Suit dismissed