Download PDF Link : https://www.supremecourt.gov.pk/downloads_jud gements/c.p._1965_2019.pdf
Present
Mr. Justice Mushir Alam and Mr. Justice
Maqbool Baqar
In the context of an insurance claim, the
Court was faced with the question: whether
a defendant who has not raised the defence
of limitation in his written statement filed in
the suit can file an application under section
12(2) CPC agitating the ground of limitation,
after final decision of the suit up to the apex
Court?
Doctrine of constructive res judicata
explained :
The Court answered the question in negative
while explaining the doctrine of
constructive res-judicata with reference to
the relevant provisions of CPC, thus:
“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 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 proceeding” (Para 9)
Application of doctrine of equitable
estoppel to insurance matters :
The Court also held the doctrine of
equitable estoppel applicable to insurance
matters, with the observations: “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 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.” (Para 10)
2. Jubilee General Insurance Company v. Ravi Steel Company
Download PDF Link : https://www.supremecourt.gov.pk/downloads_jud gements/c.p._1965_2019.pdf
