' MUHAMMAD JEHANGIR ARSHAD, J.---The appellant which is a statutory Corporation created under National Insurance Corporation Act, 1976 and was defendant before the learned trial Court in a suit filed by respondent Messrs Al-Khan Construction Co. (Pvt.) Limited for recovery of Rs.65,737,341 with interest/mark-up in terms of section 47-B Insurance Act titled as "Messrs Al-Khan Construction Co.
(Pvt.) Limited v. National Insurance Corporation and another", is aggrieved of the judgment and decree dated 26-4-2003 passed by Civil Judge Ist Class, Lahore whereby the above mentioned suit was decreed in favour of the respondent/ plaintiff and against the appellant/ defendant to the tune of Rs.6,57,37,341 along with 5% interest/mark-up at Bank rate.
2. The facts relevant for the disposal of this R.F.A. Are that Messrs Al-Khan Construction Co. (Pvt.)
Limited respondent/plaintiff obtained a contract for the construction of West Nawab Shah Surface Drainage System Left Bank Outfall under Contract No.10-AB2 in Nawab Shah in the year 1990 and to cover the risk of loss under the said contract the respondent also obtained "Contractor's All Risk"
(known as C.A.R.) Insurance Policy from the appellant/defendant vide No.NIC/L. Engg. /PC/CAR- 998/90. Initially the said Insurance was in respect of construction work from 1-1-1990 to 30-9-1990 which was subsequently extended from time to time up to 31-12-1994 on payment of renewal premium. According to the respondent/plaintiff the said Insurance Policy among other also covered the risk of rains/flood damage. It so happened that in August, 1994 there was heavy rain in the area followed by devastating flood, resultantly the work done by the plaintiff/respondent was severely damaged which necessitated the plaintiff/respondent to claim compensation for such damage in terms of above mentioned Insurance Policy and on refusal by the appellant/defendant there arose a necessity for the respondent/plaintiff to file the suit on 3-9-1997 for recovery of the above-said amount. The suit was contested by the appellant/defendant through written statement dated 30-10-1999 and keeping in view the contesting pleadings of the parties, the learned trial Court framed the following issues and invited the parties to produce their respective evidence:-- ' Issues
(1) Whether the plaintiff is entitled to recover the suit amount from the defendants for the reasons mentioned in the plaint? OPP.
(2) Whether the suit is not maintainable? OPD
(3) Whether the suit is bad for non joinder and misjoinder of parties? OPD.
(4) Relief.
' Both the parties led their oral as well as documentary evidence in support of their respective pleas and on conclusion of the trial, the learned trial Court vide impugned judgment dated 26-4-2003 decreed the suit of the plaintiff/respondent in the following terms:-- "As per findings in Issue No.1, the suit is hereby decreed in favour of the plaintiff and against the defendant, for sum of Rs.6,57,37,341 (rupees six crore fifty seven lac thirty seven thousand three hundred and forty one only) along with 5% interest/mark-up at Bank rate."
' Feeling aggrieved of the above judgment and decree of the learned trial Court, the appellant/defendant has filed the instant R.F.A.
3. At the very outset we note that the learned trial Court based his impugned judgment on its findings at Issue No.1 which are reproduced hereunder:- "The plaintiff asserted that as per policy he is entitled to the amount claimed for while the defendant argued that claim is made excessive and he has to make loss as per report Exh.D/1. After taking into consideration report of Surveyors Exh.D/1, it has been observed that at the time of making policy, defendant make colourful incentive to the policy holder, even if profit including loss has also made in the contract but as and when the loss/damage is caused to the policy holder, they made certain defence/excuses. Even if not to repay the loss, it isi general tendency of the Insurance companies. Exh.P/2 is a contract between the parties to make all risk policies in the case due to heavy rains and losses. The plaintiff informed the defendant on 30-9-1994 vide Exh.P./3 but the defendant did not reply to it. Thereafter the plaintiff informed the defendant about damage on 7-9-1994 vide Exh.P/4. WAPDA has also made summary detail of damages due to rain and flood vide Exh.P/5 but it is awful to note that defendant appointed Surveyors on 5-10-1994 vide Exh.P/6 by that time assessm ent of rain and flood could have not determined finally. Exh.P/7 is claim of the plaintiff. Thereafter the defendant appointed a second surveyor on 12-10-1994 to assess the loss of the plaintiff. Thereafter, correspondence has been exchanged between the parties but Surveyor has been submitted during oral evidence on 3-4-2003 about this delay. The plaintiff has been barred to challenge surveyor report properly. The defendant has produced surveyor as D.W.1 and produced Assistant Manager as D.W.2, no one has been appeared on behalf of defendant No.1.
D.W.2 submitted that he has appeared as a witness in the case, meaning thereby that defendant No.1 has no defence in the case. The witness to have signed in the written statement should have appeared in the case or person has been appointed by the defendant company should appear in the case to defend the litigation. D.W.2, Assistant Manager of Insurance Company, he is not authorized officer and he has no information regarding written statement and this witness has not proceeded at site and also conceded during cross-examination that he has no record of the defendant. These admissions were made by D.W.2 during his cross-examination and as per evidence produced by the plaintiff oral as well as documentary, he has proved this issue. Therefore, I decide the issue in favour of the plaintiff."
4. A perusal of the above findings recorded by the learned trial Court under Issue No.1 which is the pivotal issue, leaves no doubt in our mind that the learned trial Court while recording said findings neither referred to any evidence of the parties nor discussed its legal effect after conscious application of mind so as to withstand the test of the word "Judgment" as defined in section 2(9) of C.P.C. And thus the same cannot be considered findings/decision within the meaning of Order XX, rule 5, C.P.C. This Court in the case of "Anjuman Tajran outside Delhi Gate, Lahore and 15 others v.
Chief Administrator of Auqaf, Punjab Awan-eAuqaf and another" 2001 CLC 136 while dealing with almost similar situation, held as under:-- "It is well-settled principle of law that Court is obliged to consider the evidence on record, judge its value in the light of legal principles applicable thereto and then pronounce its final opinion.
Judgment is the result of accumulative effect on the mind of the Court that finds expression in its final opinion."
' We are therefore, satisfied that the findings recorded. By the trial Court under Issue No.1, which is the basic issue, cannot be declared a legal and valid judgment at all. Hence, this appeal is accepted, the judgment and decree of the learned trial Court is set aside and the case is remanded to the trial Court with the direction to proceed with the hearing of the case afresh from the stage of arguments and decide the suit after hearing both the parties afresh in accordance with law.