NATIONAL INSURANCE CORPORATION Versus PAKISTAN NATIONAL SHIPPING CORPORATION
ORDER.
Under this application CMA No.5473/87 defendant seeks trial of the issue on limitation point as a preliminary issue.
2. The suit relates to recovery of an amount for certain missing consignment from a carrier by an insurer.
3. Certain articles of Ordnance Stores in six pallets imported from London by Central Ordnance Depot were shipped by the defendant from U.K. to Karachi, where the vessel m.v. Murree supposed to carry said consignment arrived on 17-11-1982 and discharged its cargo, without said consignment which was missing. The consignee lodged claim on 17-4-1983 with the defendant who acknowledged filing of the claim, but did not settle the same. KPT issued certificate about missing of the six pallets. Since the said consignment was insured with the plaintiff under the Marine Cargo insurance, policy, the plaintiff settled the claim for Rs.1,26,683 and obtained letter of subrogation from the consignee on 25-9-1984 and stepped into latters' shoes. Hence the plaintiff Insurance Company filed this suit after pursuing the matter with the defendant and after due exchange of letters with the defendant, who was also supplied letter of subrogation.
4. The suit was contested by the defendant who in his written statement took legal as well as factual pleas. One of the legal pleas was that the suit was barred by limitation.
5. Issues on merits as well as on legal points were framed by the Court on 2-3-1986. Prior to that both the parties filed draft issues.
6. I have heard Mr. Sarmad Osman, Advocate for the defendant and Mr. A. R. Siddiqui counsel for the plaintiff.
7. Learned counsel for the defendant relied on Order 15, rule 3 of the C. P. C. and argued that the issue of limitation would decide the suit and that said issue did not require evidence. Learned counsel for the plaintiff was of the converse view. Rule 3, of Order 15, CPC reads as under: "parties at issue (1) where the parties are at issue on some question of law or of fact, and issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and if the finding thereon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:
Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.
Learned counsel for the defendant cited the cases of (i) National Insurance Corporation v. PNSC (1985 CLC 360),
(ii) Bashir Ahmad and others v. Aftab Ahmed & others (PLD 1976 Lah.143.k1.
(iii)Abdul Aziz & others v. Mohammad Hassan & others (PLD 1984.Quetta 101) and
(iv) Qadir Khan v. Mst. Kishwar Begum and others (1983 C.L.C. 613)
In (i) above a learned Single Judge of this Court took the view that starting point of limitation under Article 31 of the Limitation Act would be the date on which the consignee had notice that delivery could not be given to him and that the period of imitation for filing suit for compensation due to non delivery of goods, could not stand revived, on the ground that the consignee had preferred a claim on the basis of short landing certificate, which was under consideration. This authority may be relevant while considering the point of limitation but it does not require issue of limitation to be tried first.
In (ii) above the fate of all issues hung round genuineness or otherwise of a Will and the trial Court rejected the application for deciding 3 out of 8 issues as preliminary, and such order was upheld. This does not support contention of counsel for the defendant. Rather it goes against him.
In (iii) above the view taken was that a Court is bound to dispose of issues of law first only when it is of the opinion that the case or any part thereof can be disposed of by a decision on such issue or issues. It was observed that where an issue raises a mixed question of facts and law, the Court is not bound under Order 14 Rule 2 of C. P. C. to decide such issue before framing issues on facts.
(iv) above was Rent Case. Thus none of the authorities helps the defendant.
8. As against above, learned counsel for the plaintiff cited the cases of (i) Shah Muhammad Khan vs. Ghulam Qadir etc. (PLD 1971 B.J 9)(ii) Lahore American Society v .G. N .Riaz and others(1987 MLD 2522)(iii) Tahir Shah v. Kanda and others (P.L.D. 1949 Lah. 185). In (i) above Lahore High Court exercising revisional powers declined to interfere with an order by a Civil Judge dismissing an application for deciding legal issues first in a suit. In (ii) above, the view taken by a Division Bench of Lahore High Court was, that an issue of Limitation linked with other controversal matters cannot be treated as a pure issue of law which could be disposed of without evidence of parties. In(iii) above, the view taken was that where preliminary objection relates to entire suit and may indirectly touch merits of the case in collateral or indirect manner, it must not involve the direct decision of a question which is an integral part of the merits of the case.
Learned counsel also cited two decisions from the Indian jurisdiction. In case of Janki Das and another v. Kalu Ram and an4er (A.1.R. 1936 Pat. 250), the view taken was that the Court should observe some harmony between the general principle that it was undesirable to try the case Piece-meal. In the case of Smt. Sarojini Roy and another vs. Shivaram Poddar (AIR 1957 Pat.59) the view taken was, that order 14 Rule 2 of C.P.C. applied at an earlier stage of the proceedings when the issues have to be framed and that in appealable cases the Court should as far as possible decide all the issues and there should not be piece-meal trial which causes serious inconvenience and great expenses to litigants.
9. Order 14 Rule 2 of C.P.C. enables the Court to first try the issues of law if the Court is of opinion that the case may be disposed of on the issues of Law only. The provisions contained by Order 15 Rule 3 C.P.C. reproduced above, would show that the Court may proceed to determine those issues on which no other argument or evidence can be adduced at once as required. Although, learned counsel for the defendant stated at the Bar that he did not wish to lead any evidence on the point of limitation, but learned counsel for the plaintiff did not agree to proceed with the limitation point without any evidence on the record. In my view even the point about limitation requires evidence. For example the plaintiff will have to prove that the period of limitation commenced afresh due to certain acts of the defendant. Hence it would not be worthwhile to try the issue of limitation as a preliminary issue. Consequently I dismiss this application.
M.A.K./N-192/K
Application dismissed.