' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---This judgment will dispose of two appeals bearing R.F.A.No,403 of 2007 Messrs East West Insurance Company Limited and another v. Messrs Muhammad Shafi and Company and 2 others and R.F.A.No,404 of 2007 Messrs East West Insurance Company Limited and another v. Messrs 'Al-Karam Rice Mills and another as common questions of law and facts are involved therein.
2. Precisely the facts giving rise to these appeals are that Messrs Muhammad Shafi and Company (respondent No,1 in R.F.A.No,403 of 2007) and Messrs Al-Karam Rice Mills respondent No,1 in R.F.A.No,404 of 2007 (hereinafter to be read as the respondents/plaintiffs) filed suits on 28-7-1994 in the Court of Civil Judge Ist Class, Ferozewala, District Sheikhupura for recovery of Rs,45,50,000 and Rs,20,00,000 with interest/ mark-up etc., respectively, against Messrs East West Insurance Company Limited and two others on the 'ground that they, respectively, took a loan from the National Bank of Pakistan (respondent No,3 in both the appeals) and paddy lying in their stores was insured with the appellant Company; the premium of both the respondents/plaintiffs was paid on 4-3-1993 and 10-2-1993, the date of insurance, respectively; in the night between 4/5.3.1993, a fire broke out in the godowns of the respondents/plaintiffs and the paddy lying therein was burnt into ashes. Hence, filing of the aforesaid two suits by the respondent/plaintiffs, which were contested by the appellant/defendant (Company); both the suits were consolidated; out of the pleadings of the parties, the trial Court framed nine issues including the relief on 29-3-2003 and thereafter four additional issues i,e, 8-A to 8-D were framed on 25-3-2004; after recording evidence of the parties, the learned Civil Judge Ist Class. Ferozewala, proceeded to decree the suits in favour of the respondents/plaintiffs vide a consolidated judgment dated 17-9-2007. Hence, these appeals.
3. Main stress of the learned counsel for the appellant company was on his contention that in view of the promulgation of Insurance Ordinance No,XXXIX of 2000 (hereinafter to be read as Ordinance, 2000), Insurance Tribunal had been constituted under section 122(1) thereof vide notification dated 20-6-2006 by the Federal Government, therefore, the learned Civil Judge ceased to have jurisdiction in the matter and he should have transmitted the suits to the Insurance Tribunal for their decision. Reliance has been placed on the case of Adrian Afzal v. Capt. Sher Afzal PLD 1969 SC 187.
4. On the other hand, Ch. Inayatullah, learned counsel for the respondents/plaintiffs and Mr. Muhammad Qamar-uz-Zaman, learned counsel for the National Bank of Pakistan respondent No,3 argued that as the suits were filed in the year, 1994 and the Insurance Ordinance came in the year, 2000, the same will not be applicable to the present case and it will be applicable only to the cases, which were filed after the enactment of said Ordinance or constitution of Tribunal, therefore, proceedings before Civil Judge were legal. He further argued that the learned District Judge had referred the matter to the trial Court (Civil Judge Ist Class, Ferozewala) on 9-6-2007, which order was not challenged by either of the sides and as such, it has attained finality.
5. We have heard the learned counsel for the parties at length and have also gone through the record.
6. It reveals from the perusal of record that the suits were filed in the year, 1994 and the appellants/defendants filed their written statements, Evidence of the parties was completed on 86-2006 and the case had been postponed for final arguments. On 13-1-2007, the appellants/defendants filed an application under section 122 of the Ordinance, 2000 on the ground that by virtue of section 122(3) thereof, no Court other than a Tribunal is competent to exercise any jurisdiction with respect to any matter to which the jurisdiction of a Tribunal extends under this Ordinance and now the Tribunal has also been constituted vide notification dated 20-6-2006. On 22-5-2007, the learned counsel appearing on behalf of the respondents/plaintiffs made a statement before the learned Civil Judge that instead of returning the plaints to the respondents/plaintiffs, the suits may be sent to the Tribunal and he will have no objection to the acceptance of the application. Thus both the sides gave consent for sending of the files, as it is, whereupon the learned Civil Judge referred the matter to the learned District Judge for the appropriate orders and directed the parties to appear before the learned District Judge on 9-6- 2007, who had passed the following order:-- "I have seen the reference sent by Mr. Shaukat Javed Khan, learned Civil Judge, Ferozewala on the request of. Mirza Hafiz-ur-Rehman, Advocate, learned counsel for the defendant No,
1. Perusal of the record shows that earlier ex parte judgment and decree was passed in this suit for recovery of insurance amount Rs,45,50,000. An application for setting aside the ex parte judgment and decree at the instance of the defendants was also dismissed, against which civil revision was filed and Civil Revision bearing No,1467 of 2002 was allowed by the. Honourable High Court vide Order dated 26-11-2002 subject to payment of costs Rs,5000 in each of the case as there were more revision petitions and first appeal than one and directed the learned trial Court to decide the suit within 6 months. I do not know what happened to the direction of decision of the suits within 6 months. In any event the learned trial Court is directed to mention the relevant provisions under which the matter is referred to the Insurance Tribunal and at the same time would also explain that once the Honourable High Court has directed the trial Court to decide the same within 6 months whether the learned trial Court can allow the request of the parties for referring the matter to the Insurance Tribunal. Send both the files back to the learned trial Court for answer to the queries raised by this Court till 23-6-2007. The parties are directed to appear before the learned referring Court on 13-6- 2007."
' Thereafter the learned Civil Judge took cognizance of the matter again for the first time after constitution of Insurance Tribunal on 2-7-2007 and after hearing, the arguments of the parties decreed both the suits vide judgment dated 17-9-2007.
7. It should be relevant to mention here issue that No,8-B framed on 25-3-2004, which reads as under:- "Whether civil Court has no jurisdiction to adjudicate upon the matter? OPD-3"
' While dealing with this issue, the learned trial Judge proceeded to observe as under:-- 64 At this juncture, it is suitable to discuss that the defendants Nos. 1 and 2 moved an application before this Court under section 122 of the Insurance Act. On this application, both the parties got recorded their statements to the effect that if the suit is transferred/sent to the Court of learned Insurance Tribunal then they have no objection. Subsequently, this Court forwarded a reference to the Court of Worthy District and Sessions Judge, Sheikhupura where the matter was heard once again. The reference was turned down on the ground that after the promulgation of Insurance Ordinance and establishment of any Court, the matter in both the suits went up before the Honourable Lahore High Court, Lahore twice i,e, firstly in revision and secondly when some permission was granted under Order XXIII, C.P.C. To file fresh suit. The Honourable Lahore High Court, Lahore remanded the suits twice. In the light of these instructions of Honourable Lahore High Court, Lahore, the learned District & Sessions Judge, Sheikhupura turned down the reference of this Court. Now it is obvious that the matter has been entrusted twice by Honourable Lahore High Court, Lahore. So this Civil Court has the jurisdiction to entertain this suit."
' Admittedly, the matter came to this Court twice in the shape of Civil Revision No,3477 of 1994 and Civil Revision No,1467 of 2002. In the former revision petition, the defendants had challenged an order passed on the application under Order VII, Rule 11, C.P.C., in which trial Court with the consent of the parties allowed plaintiffs to withdraw the suit and file a fresh one after removing the defects and said revision petition was dismissed by this Court on 10-10-2001. In the latter one, this Court on 26-11-2002 while disposing of the civil revision along with other connected matters filed by the appellants/ defendants while setting aside the ex parte decree dated 1-16-2002 with the cost of Rs,5000 in each case also directed the trial Court to decide the matter within six months.
8. Direction dated 26-11-2002 of this Court was for the trial Court, which was competent under the law to adjudicate the fish. It was not specifically oriented to the particular Judge or Court. The learned Court had acted under a wrong impression in this regard and ignored the important questions of law. Even otherwise, question of jurisdiction never came before this Court while dealing with Civil Revision No,1467 of 2002.
9. If in a case the Tribunal or Court does not have the jurisdiction under the law, jurisdiction cannot be conferred on a Court or Tribunal by the consent of the parties or even by the Court. Courts are bound to decide the lis before them in accordance with law. Justice, according to law, is the duty of Court, which can neither be abdicated in favour of whims or A ignorance of parties or their counsel.
If the Court otherwise lacks jurisdiction to adjudicate the matter, then mere consent of the parties cannot confer jurisdiction. Question of jurisdiction is always a fundamental question, which must be decided at the initial stage of the proceedings. Reliance is placed on the cases of Executive District Officer Schools v. Qamar Dost Khan 2006 SCMR 1630, Muhammad and others v.
Muhammad Shafi and another PLD 1996 SC 292, Haji Abdullah Khan and another v. Nisar Ahmad Khan PLD 1965 SC 690, Salah-ud-Din Tirimzi v. Election Commission of Pakistan PLD 2008 SC 735 and All Pakistan Newspaper Society and another v. Federation of Pakistan PLD 2004 gC 600.
10. It is the duty of the Court to apply correct law. A Judge is supposed to "wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter". It has been held by the Honourable apex Court in the cases of Board of Intermediate and Secondary Education Lahore v. Salma Afroze PLD 1992 SC 263, Kutab- ud-Din v. Fazal Ali 1994 SCMR 107, Ghulam Muhammad Khan v. Settlement Re-habilitation Commissioner Hyderabad 1972 SCMR 359. Muhammad Sarwar v. State PLD 1969 SC 278, and Rana Muhammad Hayat Khan v. Rana Imtiaz Ahmad PLD 2008 SC 85.
11. What will be the effect of change of forum by a law during the pendency of the lis? When the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when action was begun unless ' the new statute shows a clear intention to vary such rights, which means if a statute deals merely with procedure in an action and does not affect the rights of the parties, it will apply prima facie to all actions pending as well as future. "When the legislature alters the right of the party by taking away or conferring any right of action, its enactments, unless in express terms, they apply to pending actions, do not affect them". It has been held by the superior Courts that the matters relating to the remedy, mode of trial, manner of taking evidence and forms of action are all matters relating to procedure. According to the general rule of interpretation, a procedural statute is to be given retroactive effect unless, the law contains a contrary indication. This is the consistent view of the superior Courts. Reliance is placed on the cases of Colonial Sugar Refining Company Limited v. Irving 1905 AC 369, Joseph Suche and Co.
Limited (1875)1 Ch. D.48, Ghazi v. State PLD 1962 Lah.662, Mir Hassan v. State PLD 1969 Lah. 786, State v. Muhammad Jamil PLD 1965 SC 681, S.M. Yusuf and Bros v. Muhammad Mehdi Pooya PLD 1965 SC 15, Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Aftabuddin Qureshi and another v. Mr. Rachel Joseph and another PLD 2001 SC 482.
12. The Ordinance, 2000 was promulgated on 19-8-2000 in order to regulate the business of the Insurance Industry, to' ensure the protection of the interest of insurance policy holder and of insurance industry. Under section 122 of the Ordinance, 2000, vast powers have been conferred to the Tribunal. Powers of Civil Court under Civil Procedure Code, 1908 have been conferred to the Tribunal, in respect of claim of the policy holder arising out of policy of insurance, while exercising its civil jurisdiction.
' Similarly under section 122(1)(b) of the said Ordinance, Tribunal shall exercise power of Court of Session while exercising its criminal jurisdiction to try the offences punishable under the Ordinance.
It is section 122(3) of the Ordinance, 2000, which clearly bars jurisdiction of Civil Court other than the Tribunal.
' Under section 123 of the Ordinance, procedure for the Tribunal has been provided and under section 124 thereof appeal before Division Bench of the High Court within thirty days has been provided if amount of the claim is not less than Rs,1,00,000. Even office of Insurance Ombudsman has been provided under sections 126 and 127 of the Ordinance to undertake any investigation into the allegation of maladministration on the part of any Insurance Company. Under section 130(2) thereof, right of appeal has been provided against the order/recommendation of the Ombudsman before Commission.
' Section 170 is saving section of the Ordinance. It has been provided under section 170(4) that until the establishment of a Tribunal under the Ordinance, sections 47-C to 47-L and section 110 of repealed Act (i,e, the Insurance Act, 1938) shall continue to have effect in relation to the cases already pending before Settlement Board i,e, Insurance Appellate Tribunal and shall be decided in accordance with the law in force immediately before the commencement date.
Thus complete hierarchy has been provided under the said Ordinance for the regularization and promotion of Insurance Industry and for the protection of the interest of the policy holders and the matters connected therewith, which has enlarged its scope.
13. There is no force in the contention of learned counsel for the Bank that when the reference was turned down by the District Judge vide order dated 9-6-2007, none of the parties has assailed the same and as such objection of jurisdiction cannot be raised at this belated stage. This contention is not tenable for the reason that question of jurisdiction is to be considered by the Court even though not raised by the parties. The principle of estoppel cannot be invoked to defeat the provisions of a statute or enactment affecting the jurisdiction of F the Court. Even the question of waiver will not arise when Court lacks the inherent jurisdiction. Reliance is placed on the cases of Muhammad Suleman v. Javaid Iqbal PLD 1982 SC AJ&K 64, Peer Sabir Shah v. Shahid Mehmood Khan PLD 1995 SC 66 and Raleigh Investment Company Ltd. v. Governor General in Council AIR 1947 PC 19, Town Committee Ghakhar Mandl v. Authority under the payment Wages Act PLD 2002 SC 452 and Muhammad Hussain v. Muhammad Shafi 2004 SCMR 1947. Moreover, order of learned District Judge on the reference of the learned Civil Judge is void. It does not have any legal effect. Any order without jurisdiction is nullity in the eyes of law and the same should be ignored. Reliance is placed on the cases of All Muhammad v. Hassan Bakhsh PLD 1976 SC 37 and Khuda Bakhsh v.
Khushi Muhammad PLD 1976 SC 208.
14. The learned District Judge entrusted the cases to the learned Civil Judge, who took cognizance on 2-7-2007 and decided the same on 17-9-2007. Tribunal was constituted under section 121 of the Ordinance on 20th June, 2006. Hence after the constitution of the Tribunal, the learned Civil Judge was not competent to proceed with the matter. After the constitution of the Tribunal, proceedings before the Civil Court were coram-non-judice and the same has no legal sanctity. We are conscious of the fact that the learned Civil Judge could not make reference directly to the Tribunal.
Despite the entrustment by the learned District Judge, the learned Civil Judge was required to decide issue No,8-B in accordance with law prevalent on the day. He was bound to decide the question of jurisdiction in accordance with law, which he has not done.
15. Suits in question were obviously filed under section 9 of the C.P.C. This section itself postulates that all suits of civil nature shall be tried by the Court established under the said law except the suits regarding which their jurisdiction either expressed or impliedly is barred. Section 122(3) of the Ordinance, 2000 clearly bars the jurisdiction of all the Courts including the Civil Court other than the Tribunal in the matter of claims under Insurance Policy. Although there was no bar at the time when the suit was filed, but subsequently the Civil Court became functus officio to adjudicate the matter relating to Insurance Policies. Reliance is placed on Haji Muhammad Hanif v. State Life Insurance Corporation of Pakistan 2007 CLD 490.
16. The learned Court below has neither applied its mind to the facts of the case nor has it taken notice of the altered/changed situation. It should have taken the notice regarding enactment of the Ordinance, 2000 and constitution of Tribunal under it. The learned Court below has ignored the law and failed to resolve the issue of jurisdiction. In these circumstances, we are of the view that after the constitution of Insurance Tribunal, the civil Court had no jurisdiction to deal or proceed with the suits in question and the learned Court has wrongly assumed the jurisdiction on an erroneous assumption as to the direction of this Court. After the issuance of Notification dated 26- 6-2006 and by operation of law, the Insurance Tribunal come into existence and was functional..
17. Resultantly, proceedings after the constitution of the Insurance Tribunal, before the learned Civil Judge, Ferozewala were coram-non-judice. The same have no legal value in the eyes of law.
Hence, we hereby set aside the impugned judgments and decrees dated 17-9-2007 passed by the learned Civil Judge in both the suits and remit the cases to the Insurance Tribunal constituted under section 122 of the Ordinance, 2000 for decision of the lis in accordance with law.
18. These appeals stand allowed in the above terms. No order as to costs.
19. Since the suits relate to the year, 1994, we direct the Insurance Tribunal to conclude the same within two months on receipt of this judgment.