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, ......

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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 

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