1. MUHAMMAD HALEEM, J.--The petitioner seeks special leave to appeal against the order of the Division Bench of the High Court of Sind dated 2nd of September, 1978, by which High Court Appeal No. 23 of 1978 was dismissed.
2. The facts which have given rise to this petition are that one Zafar A.I Kazmi (hereinafter referred to as the "assured") submitted life insurance proposal No. 52858 for taking an endowment life insurance policy for a term of 24 years for an assured sum of Rs. 1,17,000 against monthly payment of Rs. 497.90 as premium. But in the declaration form he denied 'having suffered from any illness although in fact at the time of the submission of the form he was suffering from cancer. He was examined by the doctor appointed by the petitioner who noticed a swelling of the size of a lemon on the neck which he had it for the last three years. According to him it was not glandular but cystic and did not affect his health. On this opinion the proposal was accepted by the petitioner and a policy was issued to him. However, on 17th of February, 1974, the assured expired on account of heart failure as was evident by the death certificate issued by the Karachi Municipal Corporation.
3. The petitioner, thereafter, carried out the secret investigation and it transpired from the Certificates of the doctors; one a Homoeopath and the other an all path that the assured was suffering from cancer at the time he submitted his proposal for taking out a policy. As, according to the petitioner, the deliberate concealment of the illness gave the right to it to repudiate the contract, it did not pay the assured amount to the respondent who was his widow.
4. The respondent, thereupon, sued in forma pauperis for the realization of the amount in the High Court of Sind on 6th of May, 1976. After an inquiry into her pauperism the Additional Registrar by order dated 16th of May, 1977, allowed the application and treated it as a suit. Summons were issued to the petitioner which were returned duly served on 16th of October, 1977, on which date Mr. S. Zaman appeared for the petitioner and undertook to file the "power" on the next date of hearing that is 24th of October, 1977. As no power was filed on that date another opportunity was given to him to file the "power" and he was also directed to file the written statement within fourteen days.
5. The case was next taken up by the Additional Registrar on 7th of December, 1977. On that date the counsel filed the "power" but not the written statement for which purpose the hearing was adjourned to 19th of December, 1977. Again on that date the written statement was not filed and on the next date of hearing that is 27th of December, 1977, the petitioner was debarred from defending the suit as neither the written statement was filed nor any application made seeking further time for that purpose. The case was ordered to be put up in Court for final disposal. Accordingly, on 5th of April, 1978, a learned Single Judge decreed the suit in the presence of the counsel for the parties on account of the failure to file the written statement which order was confirmed in the aforementioned High Court appeal.
6. The grievance of the petitioner is that instead of decreeing the suit under Order VIII, rule 10, C. P. C., the learned Single Judge should have complied with rule 158 of the Sind Chief Court Rules (O. S.) which provides that the suit "shall be set down for final disposal on the next or subsequent short cause day" in which case the petitioner would have had an opportunity to cross-examine the plaintiff respondent and her witnesses in accordance with Order V, rule 5, C. P. C. It was urged that this rule altered Rule 10 of Order VIII, C. P. C. By virtue of rule 7 of the said Rules. We asked the learned counsel as to what material gain he would have had even if be was provided with an opportunity to cross-examine the plaintiff/respondent and her witnesses to which question he replied that he would have confronted them with the medical certificate to elicit material to show that the assured had deliberately concealed the material information in regard to his illness in the proposal submitted for taking out the policy which would have enabled the petitioner to repudiate the contract. Since the petitioner was debarred from defending the suit we think that the mere confrontation with the medical certificates which to all intents and purposes were hearsay evidence would have served no useful purpose unless the writers were examined to prove them.
7. Accordingly, on facts the petitioner has not been able to make out a case; and without going into the merits of the legal contention which we leave it up to be considered in some other case, we find no merit in the petition.
8. The learned counsel, however, took exception to the following passage in the judgment of the Division Bench while disposing of the High Court appeal:- "It is common knowledge, and it is not denied that proposals are accepted after a due check up by the Medical Adviser of Insurance Companies. It was the latter's responsibility to have a proper examination, and advise the appellants properly into the matter. Obviously, nothing wrong was found, and the proposal went through. It does not, therefore, now lie in the' mouth of the appellants to raise any contest on that score, and; if they were so minded, issuers could be taken up by filing the written statement, in spite of the accommodation granted, we need not go into the same."
9. PLD 1967 Kar. 204) March Cabaret Club and Casino Ltd. v. London Assurance ((1975) 1 Lloyd's Rep.
10. 169), and a passage at page 35 in Houseman's Law of Life Assurance, 8th Edition, which reads: "An important exception to the general rule applies however to all contracts of insurance. Here the party seeking t o cover the risk has information as to the nature of the risk with which the insurer is not and cannot be acquainted unless it is disclosed. The law will not allow the propose, by non- disclosure of material information, to lead the insurer to make a bargain which the insurer would not entertain in the light of fuller knowledge of the risk. Each contracting party ' must, therefore, observe the utmost good faith. There must on both sides be what is known as uberrima fides."
11. It is true that in the statement of law to which exception has been take this proposition was not taken into consideration. Accordingly, we would observe that deliberate concealment of information would in a given case be a ground for avoiding the contract. With this observation the petition is dismissed.