Mian Hamid Farooq, J.--The petitioners/plaintiffs, through the petition in hand seek leave to appeal against the judgment dated 28.2.2007, whereby, the learned Division Bench of Lahore High Court at Lahore dismissed their appeal (RFA No, 56/2001) and maintained the judgment and decree dated 20.12.2000 through which the learned trial Court/Additional District Judge dismissed petitioners' suit for recovery of Rs, 14,00,000/,
2. Facts of the case, in brief, are that the petitioners/plaintiffs, claiming to be the successors-in- interest of Malik Maqbool Ahmad deceased, on 9.12.1998, instituted the suit for recovery of Rs, 14,00,000/-, against the respondents, before the learned District Judge under summary procedure provided under Order-XXXVII CPC on the basis of two dishonoured crossed cheques, both dated 20.4.1998 (Exh.P-1 & P-2), total amounting to Rs, 14,00,000/-. The case of the petitioners as set out in the plaint was that their father namely Malik Maqbool Ahmad purchased Life Insurance Policy No, 504812122-2 for Rs, 14,00,000/-from Respondent No, 1; the policy was issued, on 15.7.1996, in favour of their late father who had been paying the premium regularly and Malik Maqbool Ahmad nominated the petitioners as his legal nominees to receive the amount of Rs, 14,00,000/-. It was pleaded by the petitioners that Malik Maqbool Ahmad died on 4.6.1997, thereupon the insurance claim was submitted by the petitioners, which was accepted and approved and consequent thereto, two crossed cheques both dated 20.4.1998 total amounting to Rs, 14,000,00/- (Cheque No, 90251826 for Rs, 983,865/- in favour of the Petitioner No, 1 and another Cheque No, 90251827 for Rs, 491,859/- in the name of Petitioner No, 2) were issued, however, when the cheques were deposited in their accounts the payment was refused by Respondent No, 3 on the ground that Respondent No, 1 had stopped payment against the said cheques. Respondents No, 1 & 2 were granted leave to appear and defend the suit, they filed joint written statement thereby admitting issuance of the cheques, however, contended that the predecessor-in-interest of the petitioners obtained insurance policy by misrepresentation, furnishing his incorrect date of birth, by concealment of material facts and thus it was pleaded that there was no liability on them for making payment of the suit amount. The learned trial Court framed five issues, recorded evidence of the parties and in the ultimate analysis dismissed petitioners' suit vide judgment and decree dated 20.12.2000.
Petitioners' appeal (RFA No, 56/2001), assailing the said judgment and decree was, also dismissed by the learned Division Bench of Lahore High Court at Lahore vide judgment and decree dated 28.22007, hence the present petition.
3. Learned counsel for the petitioners submitted that in view of Section 45 of The Insurance Act, 1938, the insurance policy in the name of petitioners' father could be called in question on the allegation of fraud within a period of two years from the date it was effected and thus both the Courts erred in law in dismissing petitioners' suit/appeal. He-has further submitted that there is no evidence on record to show that the date of birth mentioned in the proposal form was a conscious act of mis-representation by Malik Maqbool Ahmad with a view to defraud the Insurance Company and the policy holder at the time of making the statement knew that the statement was false and fraudulent. He has relied upon the cases of Mithoolal Nayak v. Life Insurance Corporation of India (AIR 1962 SC 814), Life Insurance Corporation of India v. Nanaki Ammal (AIR 1968 Madras 324), Life Insurance Corporation of India, Bombay v. Parvathavardhini Ammal (AIR 1965 Madras 357), Sint.
Benarasi, Debi v. New India Insurance Co. Ltd (AIR 1959 Patna 540), Lakshmi Insurance Co. Ltd. V. Bibi Padma Wati (AIR 1961 Punjab 253). He has next contended that, case reported as State Life Insurance Corporation v. Mst. Begum Jan (PLD 1983 SC 421) relied upon by the High Court, is clearly distinguishable from the facts of the present case.
4. We have heard the learned Counsel at length and perused the total record of the case. Upon the in-depth examination of the contents of the plaint, we do not find that the petitioners raised the plea of Section 45 of The Insurance Act now vigorously pleaded by the learned counsel. It was simply stated in para.-8 of the plaint that Respondents No, 1 & 2 with malafide intentions, illegally, fraudulently and without any reason refused to make payment of these two cheques to the petitioners. Para-8 of the plaint reads as follows:-- "That the Defendants No, 1 and 2 with malafide intentions on its part illegally, fraudulently and without any reason whatsoever refused the payment of these two cheques to the plaintiffs on 24.4.98".
The petitioners did not agitate in the plaint that the insurance policy issued in the name, of their deceased father could not be challenged and called in question as the period of two years fixed in Section 45 ibid has since expired. As the petitioners failed to plead and raise the said ground in their pleadings from the very inception of the case, therefore, they are now precluded from improving their case and to raise new ground of attack by departing from previous pleadings at this stage. It appears appropriate to refer to the followings case law, which is apt to the subject in hand. Mst. Murad Begum etc. u. Muhammad Rafiq etc, (PLD 1974. SC 322):-- It is well settled that a party cannot be permitted to raise an altogether new ground of attack or defence, by departing from its previous pleadings, especially when the opposite-party had no opportunity to adduce evidence in this behalf or to otherwise have an opportunity of meeting the plea during the course of the trial. Reference in this behalf may be made to Siddik Mahamed Shah v. Mst. Saran (1), Hem Chand v. Pearay, Lal (2), Kanda v. Waghu (3), Messrs Choudhry Brothers v.
Jaranwala Central Co-operative Bank Ltd. (4), Mst. Sherina u. Haji Ghawar Khan (5) and Abdul Karim v. Mirza Bashir Ahmad"
Mst. Jannat Bibi v. Sher Muhammad and others\(1988 SCM R 1696).
In civil proceedings a party is not permitted to deviate from his or her pleadings, nor can the Court set up a different plea for a party and decide the suit on that basis, much less at the appellate stage".
Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCM R 336).
"The appellants thus changed plea of oral agreement to a written agreement. This was not permissible in law and furthermore such a document could not have proved the plea of oral agreement pleaded in application under Section 12(2), CPC. It is a well-settled principle of law that a party can prove a case which has been pleaded by it. In support of his contention, the learned counsel for the appellant referred to Government of Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad (PLD 1976 Supreme Court 469). It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading".
Anwar Ali and others, v. Manzoor Hussain and another (1996 SCM R 1770).
6. Unfortunately, no such plea was taken by the appellants in the written statement filed in the suit.
The learned counsel for the appellants conceded that a defendant in a suit must deal specifically with each allegation of fact of which he does not admit the truth. Such provision exists in Order VIII, Rule 3 of the Code of Civil Procedure".
Muhammad Sarwar v. Zulfiqar and others (1998 SCM R 592)
"It is a settled principle of law that a party cannot be allowed to succeed on a case not set up by him. This plea is, therefore, violative of the rule of "Secundum Allegataet-Probata. i,e,, a party can only succeed according to what was alleged and proved".
In the above perspective, as the petitioners did not raise any such plea in the pleadings, therefore, they are now estopped to agitate the bar of two years as contained in Section 45 of Insurance Act 1938, as it will amount to improvement and deviation of the case originally set up in the pleadings.
The first contention of the learned counsel is without any force.
5. It has been established on record through production of oral as well as documentary evidence by the respondent Insurance Company, as rightly appreciated by both the Courts, that Malik Maqbool Ahmad procured the insurance policy by furnishing false and incorrect particulars about his date of birth. The Petitioner No, 1 namely Malik Muhammad Faisal (PW-1) appeared as the sole witness and produced certain documents in his statement. Besides, the petitioners did not produce any independent and convincing evidence to advance their case and to establish that the date of birth of their father, as incorporated in National Identity Card (Exh. D-5) i,e, 8.3.1945, is correct.
Contrarily, the Insurance Company was able to dig out the record of the Board of Intermediate & Secondary Education Lahore pertaining to the date of birth of the deceased to demonstrate that the correct and true date of birth of Malik Maqbool Ahmad was 8.3.1940 and not 8.3.1945. It examined Nazir Hussain Record Keeper of the Board to prove certificate ( Exh. D-1) showing that true date of birth of Malik Maqbool Ahmad in the record of the Board is 8.3.1940. Not only this but the said witness also produced the original Gazette confirming the said date of birth of the deceased. It may be noted that the petitioner did not lead any piece of evidence to rebut the convincing and irresistible evidence produced by the Insurance Company and to establish that the date of birth is 8.3.1945 and not 8.3.1940. Net result which flows therefrom is that the evidence produced by the Insurance Company stood un-rebutted and rightly believed by the two Courts below. If the Insurance Company was able to find out the record pertaining to the date of birth of the deceased and succeeded in producing sufficient material in evidence to establish deceased's correct date of birth, why the petitioners could not produce some evidence to substantiate their case that the date of birth of their father was 8.3.1945. It cannot be conceived, in view of the cogent available evidence that the deceased was unaware about his actual date of birth and not in the knowledge that his date of birth is 8.3.1940 and not 8.3.1945. PW-1 has admitted that his father was matriculate. Malik Maqbool Ahmad, admittedly, passed matriculation examination, therefore, it cannot be believed that he was not aware about his date of birth recorded by the Board in his matriculation certificate. It may be noted that Malik Maqbool Ahmad when appeared in the matriculation examination, himself filled up the form (Exh. D-1) showing his date of birth as 8.3.1940.
The record of the Board including Exh. D-2 admitted in evidence shows the same date. Malik Maqbool Ahmad, vide letter dated 30.6.1996 (Exh.D-6), showed his inability to produce any record showing his date of birth stating that he had no proof of his age except the entry in the Identity Card. It is a matter of common knowledge that when a person applies for issuance of National Identity Card, he/she himself/herself gives his/her date of birth and other particulars and the authorities issuing the Identity Card without making any inquiry about the furnished particulars incorporate the same in the National Identity Card. To our mind furnishing of incorrect date of birth by the father of the petitioners at the time of obtaining insurance policy was his conscious act, he deliberately made false statement and furnished incorrect particulars qua his date of birth knowingly that his date of birth was 8.3.1940 and gave the incorrect date i,e, 8.3.1945 as his date of birth only to defraud the Insurance Company. It may be noted that, as disclosed by DW-3, Malik Maqbool Ahmad was a Sales Manager of State Life Insurance and thus he was aware about the in and out of the working of the Insurance Corporation and sufficiently equipped with the tricks of the trade.
6. Now the question arises as to whether under the facts and circumstances of this case, the entry of date of birth incorporated in the National Identity. Card is to be believed or record produced by the respondent-Corporation should be preferred. It has rightly been held by the High Court that "Ordinarily the date of birth mentioned in the National Identity Card is to be taken to be correct unless proved to be contrary by cogent and convincing evidence". This Court in, the case reported as Abdul Khaliq and another v. Maulv"i Muhammad Noor and others (PLD 2005 SC 962) has held as under:-- "Para-10 Normally the date of birth mentioned in the Identity Card would have to be given - preference over the certificate issued by the Balochistan Board of Intermediate and Secondary Education, Quetta and the Matriculation Examination form but in view of the facts and circumstances of this case it is found difficult to prefer the date of birth mentioned in the Identity Card over the date of birth certificate issued by the Balochistan Board of Intermediate and Secondary Education, Quetta and the Matriculation Examination Form". (underlining is for emphasis)
7. As noted above, the petitioners' father himself filled up the form (Ex.D-1) giving his date of birth as 8.3.1940 and the record produced by the respondent-Corporation as detailed above, also endorse same date of birth, therefore, in the facts and circumstances of the present case and in view of the voluminous evidence on record it can neither be argued nor held that the date mentioned in the National Identity Card is to be preferred over the un-rebutted record produced by the Corporation, which was admitted in evidence without any objection from the petitioners' side. In view whereof the findings of the learned' High Court to the effect that "in such a situation correct and true date of birth would be the one as recorded in the School/Board record being earliest in time are not open to any exception and we are not persuaded to take a contrary view than Of the High Court. This answers the second contention raised by the learned counsel.
8. Now coming to the case of State Life Insurance Corporation v. Mst. Begum Jan (PLD 1983 SC 421) which according to the learned counsel is distinguishable. We endorse the views of the High Court and feel appropriate to reproduce portions of the judgment, which read as under:- Fraud of the agent of Sales Representative of an Insurance Company vitiates the contract of Insurance itself and this happens to be a proposition universally recognized. In Lakshmishankar Kanji' Rawal v. Gresham Life Assurance Society, Ltd. (1), it was held that false statement in a proposal form whether" at the instance of the assured or of the ageing absolves the Company of the liability under the contract. The question involved in that case was answered in the alternative by holding as follow:- "Either the assured authorized these answers to be given or by his negligence he made it possible for the agent to deceive the Company, in neither case can the plaintiff succeed". ".....Clause (9) of the Insurance Policy would, therefore, be attracted and in terms thereof as the age of the appellant has been proved to be materially different from what was disclosed, the contract would be rendered void. This has been the effect also of the fraud perpetrated by the Sales Representatives on the principal as well as the on the assured".
Assuming, contention of the learned counsel is correct even then it will not improve the case of the petitioners, as it has been held above that the date of birth furnished by the father of the petitioners to the Board of Secondary Education Lahore at the time of taking matriculation examination is to be preferred over the date mentioned in the National Identity Card.
9. In the above backdrop, we have examined both the judgments and find that both the Courts have concurrently held that the petitioners failed to establish that their father's date of birth was 8.3.1945 instead of 8.3.1940, at the time of obtaining insurance policy incorrect information and fake particulars were furnished and the policy was obtained by practicing fraud. We are of the considered view that both the judgments are in accordance with the evidence on record and ,inconsonance with the law on the subject. We are not persuaded to interfere in the judgments, which are concurrent and hereby maintained.
10.In view of the above, the present petition being devoid of any merits is hereby dismissed and leave to appeal refused.