' SYED TAHIR ALI SHAH, J.--- Instant petition is the outcome of order returned by the Chief Court Northern Areas, dated 17-4-2006, whereby accepting the revision suit of the plaintiff was dismissed.
2. Ali Dad and his brother Roshan Ali got a tractor through Agricultural Development Bank of Pakistan against mortgage of their land in the year 1985. The tractor, as averred, was duly insured with the East West Insurance Company. During August, 1987 the tractor met an accident and the insurance company was duly informed of the accident. As averred further in the plaint, the tractor, as directed by insurance company was brought to Gilgit where the Manager concerned prepared insurance claim which was sent to company's highups and petitioner was assured the payment of his claim within days. It is again averred that when no payment was made for a period of six months to get the damaged tractor repaired plaintiff got the required repair done paying the bill from his own sources. Later on matter was put into cold storage rather notices were issued to the plaintiffs for payment of instalments followed by a request to the Local Administration for the arrest of the plaintiffs and auction of properties whereupon the present suit was filed for the recovery of expenses made by the plaintiffs.
3. Defendants denied almost all the allegations except the purchase of tractor through mortgage and it having met an accident.
4. After necessary investigation the trial Court vide its judgment, dated 2-5-2002, dismissed the suit finding meritless. However, during the first appeal the District Judge reversed the findings of the trial Court and decreed the suit in toto. On revision being filed the Revisional Court i,e, the Chief Court vide its judgment, dated 17-4-2006, concurred with findings of trial Court by setting aside the judgment/decree of the 1st Appellate Court. Hence the present petition for leave.
5. We have heard the exhaustive arguments advanced by the learned counsel for the parties and attended all the factors as well as law points involved in the case.
6. Syed Jaffar Shah learned counsel appearing for the respondents at the very outset contends that instant petition for leave is hopelessly barred by limitation. According to the learned counsel as per Order XIII, Rule 1 of the Rules framed by this Court petition for leave to appeal shall be lodged within 30 days of the judgment/order sought to be appealed from.
7. We are unable to agree with the contention of the learned counsel on this issue. The period of 30 days for lodging petition for leave is applicable only when the subordinate Court i,e, the Chief Court refuses to grant certificate when the same is applied for. In the instant case the petition has been filed under the first part of Article 1 of Order XIII of the Rules which provides a period of 60 days for lodging petition for leave of the judgment/order impugned. Calculated the period in the light of record the instant petition has been filed within the stipulated period of 60 days. So no question of barring the petition arises and the contention is repelled.
8. Coming to the merits of the case it appears from record that accident met is rather admitted. It has also been admitted that one of the petitioners informed about the accident to defendant though verbally. It is also not disputed that an agreement exists between the parties for the insured tractor. The cause of action to the petitioner has accrued, when the respondents, as per averment in the plaint refused to prepare the claim papers for the tractor which met an accident. However, according to the agreement the petitioners have a cause to get their claim regarding insurance honoured and not for recovery of the incurred expenses by them. The suit should be a declaratory one directing to prepare insurance claim. The petitioners instead for a declaration has filed the present suit for recovery of which they had no cause of action. Under law when a plaint is filed without a cause of action or under a wrong cause of action the proper way for the trial Court is to reject the plaint and not to dismiss it. It is the primary duty of the trial Court to investigate the matters like cause of action, limitation, jurisdiction and points of alike nature. The three Courts below have failed to appreciate the points and have either dismissed the suit or decreed it throughout.
9. Since a valuable right has been accrued to petitioners/plaintiffs as per agreement if executed by the parties regarding insurance policy and the matter being hanging fire since 1989, this Court being the Court of equity and justice deems proper to remand the case to the trial Court rather to reject the plaint.
' The net result of the above discussion is that petition is converted into appeal and accepted but on different scores as the case is remanded to the trial Court with the direction that amended pleadings be received from the parties and decide the matter according to law within a period of three months from the receipt of the record positively. Judgments/decrees returned by Chief Court dated 17-4-2006, District Court, dated 22-11-2004 and the trial Court, dated 2-5-2002, are set at naught. Costs will follow the event. File be consigned to record after due completion.