1. These two suits are filed by the plaintiff against the defendants, the Alpha Insurance Company and Government of Pakistan on the basis of two insurance policies issued by defendant 1 in favour of plaintiff, to recover losses suffered by him on account of riots and disturbances which took place during 1971 in the then territory of East Pakistan. In Suit No. 220/1971 the claim is made for a sum of Rs. 1,18,000 for loss of stock of safety matches which was kept in a godown belonging to the plaintiff at Khulna. While in Suit No. 57/72 the claim is made for a sum of Rs. 1,19,453 being the losses suffered by plaintiff on account of damage and destruction caused to the Mill premises, machinery stock of raw material, stock of goods and goods in process at plaintiff's Mill in Khulna. The defendant 1 in both the suits is avoiding its liability to pay the aforesaid claim under the Insurance policies on the ground that the alleged losses are not covered by the two policies issued to the plaintiff. Similarly defendants 2 and 3 are also refusing to pay the claim of plaintiff on the ground that the claim is not covered under the provisions of Civil Commotion Compensation Fund Ordinance, 1971, and that after repeal of this Ordinance on 3-8-1972, no claim for compensation at all is payable by him. The liability to pay the above claims by defendants 2 and 3 is also disputed on the ground that claim against them is barred by limitation.
2. As common questions of law and facts arise in both the suits, I propose to dispose of these suits by a single judgment.
3. Separate issues were framed in both the suits on the basis of the pleadings of the parties.
2. However, after evidence was recorded, when these matters came up for arguments before me, the learned counsel for the parties agreed that both the cases can be disposed of after reframing common issues of facts and law in these suits. I accordingly with the consent of Mr. Syed Mamood Hassan and Mr. A. Rauf, the learned counsel for the plaintiff and defendants respectively, framed the following common issues to the two suits.
3. "(1) Whether the loss caused to the plaintiff is covered by the policy and the indenture dated 10-3- 1971 issued by defendant No. 1 in favour of the plaintiff?
(2) Whether the defendant No. 2 is liable to pay the claim of the plaintiff under the provisions of Civil Commotion Compensation Fund Ordinance, 1971 ?
(3) Whether the suit against defendants Nos. 2 and 3 is barred by limitation?
(4) What amount of compensation, if any, the plaintiff is entitled to recover and against whom?
(5) Whether the liability of defendants Nos. 2 and 3 to compensate the plaintiff is tortuous?"
4. During the course of the arguments it became clear that the liability to pay is not seriously disputed by the defendants for the reason that losses were actually suffered by the plaintiff but that the liability is being avoided on the grounds that the losses suffered by the plaintiff are neither covered under the terms of the policy issued by the defendant No. I nor these losses could be recovered from defendants Nos. 2 and 3 under the provisions of Civil Commotion Funds Ordinance, 1971.
5. I will accordingly deal first with Issues Nos. 1, 2, 3 and 5. Issue No. l: The claims in the suits are made on account of the losses suffered by the plaintiff to the stocks, machinery, factory, raw material and goods in process during the months of March/April, 1971, on account of distur--bances which took place in the then territory of East Pakistan at Khulna. It is contended on behalf of the plaintiff that the losses suffered by him during those disturbances are covered under the riot and strike endorse--ment of the two policies issued in his favour by defendant No. 1, while defendant No. I has taken the stand that the conditions prevailing in the then territory of East Pakistan, can by no means be described as a "riot" or "civil commotion" as it was outright rebellion/insurrection of the people against the then existing political status quo in the country and as such the losses suffered by the plaintiff, if any, are not payable under the two insurance policies. The conditions prevailing immediately after the general election of 1970, in the then territory of East Pakistan are in the living memory of the citizens of Pakistan. Besides these facts are also now part of history having been recorded in quite details in numerous contemporary works in the form of books, Magazines, newspapers report, White Paper issued by Government of Pakistan, etc. The learned counsel for the defendants referred to me during the course of arguments various passages from the following books to show that the conditions in the then East Pakistan were neither "riots" nor 'civil commotion' but were an outright-revolt of the people against the then existing political status quo in the country :- "(1) The Last Days of United Pakistan-by G. W. Chodhry.
(2) Blood and Tears-by Qutubuddin Aziz.
(3) Witness to Surrender-by Siddiq Salik.
(4) Pakistan's Crisis in Leadership-by Fazal Muqeem Khan.
(5) Kessing's Research Report 9-Pakistan from 1947 to Creation of Bangladesh."
6. Apart from the above books the learned counsel for the defendants also relied on several passages appearing at pages 5, 13, 14, 15, 22, 27, 38, 39 and the incidents recorded at pages 29 to ,37, in Government White Paper, on .The Crisis in East Pakistan issued on 5th August, 1971, by Central Government of Pakistan.
7. It will be quite relevant here to reproduce some material from the above "White Paper" for the purposes of present case. At pages 13, 14, 22 and 27, the following reports of foreign newspapers and the official comments on the condition then prevailing in East Pakistan are recorded :- "On 23rd February, 1971, the 'London Times' reported: `Sheikh Mujibur Rahman already refers in public statements to 'the Bangali nation' - instead of East Pakistan". The 'Liverpool Daily Post' of 24th February, 1971, said: 'There are now fears in Whitehall that Pakistan may break up, with East Pakistan declaring herself independent Bengali Muslim Republic- Sheikh Mujib, leader of the Awami League who gained 161 of the 300 National Assembly seats, has now begun to speak not of East Pakistan but of the Bengali Republic . . . . . .
8. It is realised in Whitehall that the British Government are facing the serious prospect of the break up of a Commonwealth country.'
9. 'The 'Washington Post' of 3rd March, 1971, carried a report of Sheikh Mujibur Rehman's 2nd March Press Conference saying: "Sheikh Mujibur Rahman, President of the Awami League, told a hurriedly called News Conference in Dacca, that the Awami League would hold a public meeting in Dacca on 7th March, 1971, where he would outline a programme for achieving the right of self- determination for the people of Bengal . . . . . .
10. Asked whether he was going to proclaim independence, he said, `You wait'. Earlier, speaking to the Press on 27th November, 1970, he had said: 'Independence, no, not yet'. `The London `Daily Telegraph' reported on 9th March, 1971: `Sheikh Mujibur Rahman appears to have declared the independence of East Pakistan, thinly dis-guided in demands. (Four-Point demands for attending the Assembly session on March 25), which President Yahya Khan cannot meet", and added: `Terming his movement one of 'independence, the Sheikh, leader of the Awami League, laid down conditions for co-operating in National Assembly which cannot be met by President Khan'. In an editorial the same day, the 'Daily Telegraph' said: `Already we hear the putative name of the separate State that East Pakistan could become-Bangla Desh, Bengali land. The flag has been devised."
11. Page 14: 'Time' magazine reported from New York : The man behind the impending spilt (of Pakistan into two independent States) is Sheikh Majibur Rahman 'Mujib'. 'Pakistan, as it stands today, is finished, Mujib told 'Time' correspondent Dan Coggin in- Dacca last week. 'There is no longer any hope of a settlement'. He urged that East and West Pakistan adopt separate constitutions, and that his followers refuse to pay taxes to the Central Government, which is situated in the West. He seemed on the brink of an outright declaration of independence for what he calls Bengla Desh (Bengal State). Two days earlier, the East Pakistani leader said of West Pakistanis 'I will break them and bring them to their knees'. After such a statement, an outright declaration of independence could be little more than an anti-climax.'
12. Page 22: '23th March, 1971 The events of 23rd March, 1971, including armed rallies, and the public unfurling of the Bangla Desh Flag at Sheikh Mujibur Rahman's residence, are detailed elsewhere: Page 27: The Awami League had stated publicly that they were not interested in any further meeting. The draft proclamation submitted by them showed clearly that Sheikh Mujibur Rahman was not interested in any arrangement concerning the Centre of the Federation of Pakistan. The draft proclamation would extinguish Central authority by creating a confederation rather than a federation, give de jure authority to the parallel Government he had been operating in East Pakistan since 1st March, and create a constitutional vacuum through promulgation of a proclamation with no legal validity.
13. The position was summed up by the President in these words; 'It became quite evident that the intention of Sheikh Mujib and his advisors was not to come to an understanding on the basis of one Pakistan but was somehow to extract from me a proclamation which would in effect divide the National Assembly into two separate constituent Assemblies, give birth to a confederation rather than a federation and, by the removal of the authority of Martial Law, create complete chaos in the country. Through this plan they expected to establish a separate State of Bangla Desh. That needless to say, would have been the end of Pakistan as created by the Father of the Nation'.
14. I may also mention here some of the incidents recorded in the 'White Paper' at pages 32, 33, 35, 38, 39, Chapter III and at page 66 Appendix 'G' :- `7th March, 1971'.
15. Sheikh Mujibur Rahman announced plans for running a parallel Government and formally issued a number of 'Directives' (Appendix 'D'). He made public a week-long programme 'to continue the non-violent, non-cooperation movement', (started on 2nd March, 1971). The programme included
(t) a No-tax campaign, (ii) closure of all educational institutions, Government and semi- Government Offices, High Courts and other Courts throughout 'Bangla Desh'. Detailed directives were issued to Radio, Television and newspapers on the pattern of Awami League coverage failing which 'Bengalis working in these establishments shall not co-operate'. Telephone communica-- petition between East and West Pakistan was stopped. One directive ordered that 'banks shall not effect remittances to the Western Wing either through the State Bank or otherwise'. Another directive specifically laid down that a Sangram Parishad (Revolutionary Council) was to be organised in each union, Moballah, thana, sub-division and district' under the leadership of the local Awami League units'.
16. Page 33: '8th March, 1971.'
17. The Awami League organised meetings and violent processions shouting racial and anti-Pakistan slogans throughout the province.
18. The General Secretary of the East Pakistan Awami League, Mr. Tajuddin Ahmad, announced 'certain exemptions and clarifications pursuant to Sheikh Mujibur Rahman's Directives'. These included a categorical directive that 'No remittances shall be effected outside Bangla Desh either through State Bank or otherwise'.
19. Page 35: .
20. '14th March, 1971'.
21. Sheikh Mujibur Rahman issued a statement, superseding all previous 'Directives', and announced a new 'programme of action commencing from 15th March, 1971' in the form of fresh directives. One of these laid down that 'in discharging their duties and functions, the authorities concerned, viz. The Deputy Commissioner and Sub-Divisional Officers will maintain close contact with and act in co- operation with the Awami League Sangram Parishads at their respective levels.'
22. Another directive laid down that 'the Customs Department shall function and shall allow clearance of goods against deposit of the full amount of duty assessed, in Special Accounts to be opened for this purpose in Eastern Banking Corporation Limited and Eastern Mercantile Bank Limited (Private regional banks) to be operated by the Collector of Customs, who shall operate these accounts in accordance with the directives of the Awami League which may be issued from time to time. Such realisations shall not be credited to the account of the Central Government.'
23. Pages 38 and 39: '23rd March, 1971'.
24. 'Pakistan Day' was renamed 'Resistance Day' and Pakistan National Flags were replaced by the new 'Bangla Desh' flags atop public and private buildings in Dacca and other towns of East Pakistan.
25. March pasts and parades were held by para-military 'liberation Fronts' and ex-servicemen. Under instructions from the Awami League, Dacca Television did not show the Pakistan Flag on this day.
26. The situation was reported tense in Mirpur and certain other areas where residents insisted on flying the Pakistan Flag and refused to hoist the new 'Bangla Desh' Rag.
27. Sheikh Mujibur Rahman took the salute at an armed march-past at his residence on which the Bangla Desh flag was ceremonially unfurled.
28. Student groups kidnapped West Pakistani businessmen and demanded ransom. Armed crowds brick batted and harassed outgoing passengers near Dacca Airport.'
29. 24th March, 1971.
30. Militant Student and labour groups begin circulating handwritten and cyclostyled posters in various parts of the province inciting people to violence. One of these, issued by the Zilla (District)
31. Committee of Purbo Bangla Sramik Andolan (East Bengal Labour Movement) read as follows :- The National Liberation Movement should spread this wildfire to every place. Patriotic and revolutionary people, take up arms. Resist and liquidate the enemy troops. Defend the freed areas through armed resistance.
32. People, get armed with the available weapons to stop .The inroads of the enemy, cut off the roads, bridges, rail links etc. In those areas which are not in their control. Keep ready hand bombs and Molotov. Coktails in every house. If we have to surrender or we are directly attacked by the enemy, we will have to resort to a bloody war of resistance.
33. Please keep in mind that the national liberation of East Bengal is only possible through armed struggle which will be of long duration. Hence, without guerilla war tactics, we shall not be able to resist the enemy. Be ready to protect the freed area at any price. The long struggle of liberation of East Bengal is not at its end. It is just the beginning. To weaken us, the enemy may impose economic blockade. The victory of East Bengal is inevitable. We have torn off the shackles of Pakistani colonialism. Independent East Bengal --Zindabad'.
34. Page 66: 'Khulna-28-29th March, 1971 Khulna Town-Crescent Jute Mill Khalispur and Star Jute Mills, Chandi Mahal.
35. All pare-military training camps established in Khulna. Organised murder and arson unleashed against so-called 'brokers' of West Pakistan. Houses destroyed and large-scale massacre carried out. Before being guillotined, victims were tortured. Innocent women and children were dragged on the road and killed. Survivors found floating on the river were fished out, their stomachs were slit open and then they were again pushed back in the river which ran red with blood. Extensive damage to mill property. Some officers spared on paying ransome. (Casualities: about, 5000 killed).
36. 28-29th March, 1971 People's Jute Mill, Khalispur, Khulna.
37. EPR/Ansars) All Workers indulged in wanton massacre irrespective of their victims' age. (Casualties: 467 killed).
38. 28-29th March, 1971 New Colony Khalispur, Khulna.
39. Colony surrounded by about 10000 AL workers. Rebel police also joined in. Firing continued for over six hours. (Casualties: about 300 killed).
40. 30th April, 1971 Satkhira Sub-Division, Khulna.
41. West Pakistani S. D. O. Captured and taken prisoner. The area was subjected to mass killing, atrocities and large-scale looting of the town. (Casualties: about 1,000 killed)."
42. "(6) This Insurance does not cover any loss or damage occasioned by or through or in consequence, directly or indirectly, of any of the following occurrences, namely :-
(a) Earthquake, volcanic eruption or other convulsion of nature.
(b) Typhoon, hurricane, tornedo, cyclone or other atmospheric disturbance.
(c) War, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not), civil war.
(d) Munity, riot, military or popular rising, insurrection, rebellion, revolu--petition, military or usurped power, martial law or state of siege or any of the events or causes which determine the proclamation or maintenance of martial law or state of seige.
43. Any loss or damage happening during the existence of abnormal conditions (whether physical or otherwise) which are occasioned by or through or in consequence, directly, or indirectly, of any of the said occurrences shall be deemed to be loss or damage which is not covered by this insurance except to the extent that the insured shall prove that such loss or damage happened independently of the existence of such abnormal conditions.
44. Mr. Abdul Rauf the learned counsel for defendants contended that the liability of Insurance Company (defendant No. 1) in. These cases will only arise if it is shown that the losses sustained were not attributable to any of the conditions mentioned in the above clause of the policy. He h however, admitted that if losses are found to have resulted due to `riots',the defendant No. 1 will be liable to pay the claim in the suits. The word `riot' is not defined either in the Insurance Policy or in the Insurance Act. The word is generally used in criminal terminology and therefore in my view it will be quite, advantageous to look to its definition in the Pakistan Penal Code. Section 146, P. P. Tr.
45. Defines 'rioting' as follows :- "146. Rioting.-Whenever force or violence is used by an unlawful assembly, or by any member thereof I prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting."
46. The expression an 'unlawful assembly' used in the above definition is defined under section 141, P. P.
47. C. As under :- "141. Unlawful assembly.-An assembly of five or more persons is designated as 'unlawful assembly' if the common object of the persons composing that assembly is First, to overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or Second, to resist the execution of any law, or of any legal process: or; Third, to commit any mischief or criminal trespass, or other offence; or Fourth, by means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, of the use of water or other incorporeal right of which, be is in possession or enjoyment, or to enforce any right or supposed right; or Fifth, by means of criminal force, or show of criminal force, -to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.
48. Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." `riot' is defined as under; "riot: (1) Wanton or disorderly behaviour; disorder; uproar; tumult "His headstrong riot."
(2) Profligate or extravagant living; excessive, wild, and loose festivity; revelry. 'Venus love the riot'-Chaucer.
(3) Law. The tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object. The usual (equivalent) definition is that given in 1 Hawkins' Pleas of the Crown, c. 65, s. 1, as follows; 'A tumultuous disturbance of the peace by three or more persons assembling together of their own authority with an intent mutually to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature and afterwards actually executing the same in a violent and turbulent manner to the terror of the people, and this whether the act intended be of itself lawful or unlawful."
49. "Riot' is where three (at the least) or more, do some unlawful act; as to beat a man, enter upon the possession of another, or such like . . . . . . There are five necessary elements of a riot.-(I) three persons at least, (2) common purpose,
(3) execution or inception of common purpose, (4) an intent to help one another by force if necessary, against any person who may oppose them in the execution of their common purpose,
(5) force or violence displayed in such a manner as to alarm at least one person of reasonable firmness and courage."
50. Looking to the above definitions of the word 'riot' and the general conditions prevailing in the then territory of East Pakistan as stated above in the year 1971, 1 have no doubt in my mind that those conditions. Could not be described as 'riot' or 'riotous'. It was undoubtedly an open insurrec-- petition or a popular rising by the masses politically motivated and aimed at to change the then political status quo existing in the country. The fact that the conditions in the then territory of East Pakistan were an armed rebellion aimed at breaking of Pakistan is also stated in these words in the introduction of the White Paper issued by the Government of Pakistan in August, 1971 :- "The White Paper sets out in detail the background of these developments which culminated in armed rebellion aimed at break up of Pakistan."
51. The fact that the conditions prevailing in the then East Pakistan, ultimately climaxed into establishment of an independent country under the name of 'Bangladesh' is itself sufficient to show that the conditions through which it passed then were not akin to a 'riot' or a 'civil commotion'. The promulga--petition of Civil Commotion Compensation Funds Ordinance, 1971, by the then Government of Pakistan is also indicative of the fact that the Government was conscious of the fact that the losses suffered by the nationals of Pakistan in the then East Pakistan, during those days was not to be covered under the normal terms of an insurance policy. I therefore feel no difficulty in holding that the losses suffered by the plaintiff in the then territory of East; Pakistan, at Khulna during March, April, 1971, are not covered under the riot and strike endorsement of the two policies issued by defendant No. 1,1 in favour of plaintiff and as such the defendant No. 1 is not liable to pay the claim of plaintiff under the said Insurance Policies.
52. Issue No. 2: The burden of proving this issue is on defendant No. 2. It is contended by Mr. A. Rauf the learned counsel for the defendants that under section 8 of Ordinance XXI of 1971, the liability of Central Government to pay compensation to a person who suffered losses during the period commencing from 1st of March, 1972 and ending on a specified date to be notified by the Central Government by a notification in the official Gazette, which is in this case is agreed by both the counsel as 5-8-1972, namely the date on which Ordinance XXI of 1971 was repealed, in the then territory of East Pakistan was confined to the losses suffered by them in respect of insured properties due to fire caused by or any destructive or malicious activities of, persons taking part in civil commotion or due to any action taken by any lawful authority for suppression of "civil commotion". The proviso to this section further states that the compensation may also be paid out of the funds for any such losses suffered at any time after the expiry of said period if the Central Government is satisfied that such loss was suffered due to circumstances not covered by the policy under which it was insured.
53. However, the proviso is of no aid in the case as the losses were admittedly suffered by the plaintiff during the specified period. It is accordingly contended by the learned counsel for defendants that the losses suffered by the plaintiff in these cases were neither caused by fire, nor were it the result of destruction or malicious activity of persons taking part in civil commotion nor were they arose out of any action taken by a lawful authority to suppress the civil commotion. Emphasis was laid by the learned counsel on the word "civil commotion", to contend that the conditions then prevailing in East Pakistan which ultimately led to the establishment of the State of Bangladesh could not either be described as a "civil commotion". The word 'civil commotion' is also not defined either under the Insurance Act, Insurance Policy or under Ordinance XXI of 1971. The expression 'civil commotion' is stated in Stroud's Judicial Dictionary Fourth Edition as having been interpreted by Court in relation to Insurance cases as follows:-- "A 'civil commotion' within an exception to a fire policy means 'an insurrection of the people for general purposes, though it may not amount to a rebellion, where there is an usurped power'.
(2) An organised conspiracy to commit criminal acts without more does not amount to civil commotion.
(4) Fire policy.-The following definition of this phrase in Welford and Otter-Barry's Fire Insurance, 3rd Edn., p. 64, was approved: This phrase is used to indicate a stage between a riot and a civil war. It has been defined to mean an insurrection of the people for general purposes, though not amounting to rebellion; but it is probably not capable of any very precise definition. The element of turbulence or tumult is essential; an organised conspiracy to commit criminal acts, where there is no tumult or disturbance until after the acts, does not amount to civil commotion. It is not,. However, necessary to show the existence of any outside organisation at whose instigation the acts were done."
54. Keeping in view the above interpretation of the expression "civil commotion" I am of the view that in order to make a particular situation fall within the meaning of 'civil commotion' it must be short of, a civil war, a popular rising of the people to change the existing political status quo in the country and a mass movement to bring about political secession of a portion of the territory of a country. It is the object in view of the persons taking part, in the disturbances in a given case which will differentiate a 'civil commotion" from a popular arising, or a civil war. Considering the conditions in the then East Pakistan during March/April, 1971 in the light of the material placed before me in these cases, am inclined to hold that the conditions were not a mere civil commotion, and as such the losses suffered by the plaintiff during those disturbances in the then East Pakistan are not recoverable under the provisions of Ordi--nance XXI of 1971 from defendants Nos. 2 and 3. There is yet another aspect of this case which also cannot be overlooked. Ordinance XXI of 1971 was ultimately repealed by the Federal Government by Ordinance No. 32 of 1972. In subsection (3) of section 2 of the Repealing Ordinance it is provided that no compensation shall be payable out of the fund established under Ordinance XXI of 1971 and all monies paid into the fund shall, after payment, out of the fund of loans and advance's obtained under section 7 Ordinance XXI of 1971, be credited to the Federal Consoli--dated Fund. This repealing Ordinance was promulgated on 3-8- 1972 and came into effect at once. The repealing Ordinance does not make any provision with regard to the claims already preferred and pending before the Central Government under Ordinance XXI of 1971. In view of the clear language employed in subsection (3) of section 2 of Ordinance XXXII of 1972 the manifest intention of the Legislature in promulgating Ordi--nance XXXII of 1972 was that no claim was to be paid after the date of this Ordinance to any person under Ordinance XXI of 1971. I accordinghold that plaintiff cannot recover his losses suffered by him in the then East Pakistan, in respect of the insured goods from defendants Nos. 2 and 3.
55. Issue No. 3: Defendants Nos. 2 and 3 have also avoided their liability in suits on the ground that claim of plaintiff against them is barred by limitation.
56. Suit No. 220/71 was filed in this Court on 9-8-1971 while Suit No. 57/72 was instituted on 11-1-1972. In both these suits as originally instituted defendants 2 and 3 were not parties. These defendants were impleaded in the two suits subsequently by order of the Court dated 24-2-1975. In term of sub-rule (5) rule 10 of Order I, C. P. C. The proceedings against any person added as defendant shall be deemed to have begun only on the service' of summons. The summons in the suit were served on these defendants in March/April, 1975. Mr. A. Rauf contended that under Article 86 o fthe Limitation Act, a claim for loss under insurance policy is to be made within three years from the date of occurrence causing loss. The loss in this case took place in April, 1971 and as such the suit against defendants 2 and 3 under this Article in 1975 when these defendants were impleaded as parties was clearly time-barred. I am however, of the view that claim of plaintiff against defendants Nos. 2 and 3 is not one arising under an insurance policy and therefore Article 86 of Limitation Act will have no application. The plaintiffs claim against defendants Nos. 2 and 3 is based upon the omission of these defendants to do an act in pursuance to the provisions of Ordinance XXI of 1972. In these circumstances in my view the claim will be governed under Article 2 of the Limitation Act. The period of limitation prescribed for such cases is 90 days when the act or omission takes place. The plaintiff has not led any evidence to establish the date of act or omission on the part of defendants 2 and 3. However, in para. 10 of plaint it is alleged that cause of action against these defendants arose on 7-3-1972 when the claim forms duly filled in were forwarded to these defendants. Allowing a reasonable period of 15 days to settle the claim of plaintiff: the omission shall be deemed to have arisen on the part of defendants 2 and 3 by end of March, 1972, the suits therefore under this article could be brought against these defendants within 90 days next from the end of March, 1972. ' 1 accordingly hold that the suits against defendants Nos. 2 and 3 were barred by limitation, not for reasons shown by the defendants 2 and 3 but for different reasons as stated above.
57. Issue No. 5: The burden of proving this issue is on the plaintiffs. Except for an oral assertion made by the learned counsel for the plaintiffs at the time of argument, he was unable to point out any material on records to support his contention that the liability of defendants 2 and 3 was tortuous in nature: I accordingly hold that the plaintiff has failed to prove this issue.
58. The result is that both the suits are dismissed but in the circumstances of the case there will be no order as to costs.