1. The defendant No.1 filed its written statement. It was pleaded that at the relevant time the registered office of the defendant No.1 was at Chittagong and its head office at Dacca. The registered office is now at Peshawar. It has been stated that the obligation, if any, on the defendant No.1 under the policy stood discharged and the policy itself frustrated with the promulgation of the Civil Commotion Compensation Fund Ordinance, 1971 and the repeal of the said Ordinance did not revive the alleged liability of the defendant No.1. It denied its liability as the loss was not covered by the policy. The defendants No.2 and 3 pledged that at the relevant time the state of affairs did not confine to riot and civil commotion, but it was an open war, revolution and in fact parallel government was established in East Pakistan since 1971. It was further pleaded that the loss was caused before the promulgation of Civil commotion Compensation Fund Ordinance, 1971 and therefore, it was not covered under the said Ordinance. The correspondence with the plaintiffs was without the knowledge of the correct facts and when the claim was filed the defendant No.2 tried to scrutinise the same for coming to correct conclusion. Entering into correspondence does not amount to admission of liability of extension of time. It was denied that the Chartered Accountant had prepared any report. It was denied that the plaintiffs have suffered any loss. It was pleaded that after the repeal of two Ordinances no claim can be made. On the basis of the pleadings the following issues were framed:-- (1)Whether the suit is incompetent and not maintainable?
2. (2)Whether the suit is barred under Section 69 of the Partnership (3)Whether the Insurance Policies in suit were operative against the defendant No.1 Company in March, 1971?
3. (4)Whether the loss claimed in suit by the plaintiffs fell within any exceptionconditions of the policies and is outside the scope thereof?
4. (5)Whether by the happening of events in the then East Pakistan the Insurance Policies stood frustrated and the defendant No.1 discharge, from its liabilities, if any?
5. (6)Whether the plaintiff suffered any loss in the occurrence at Dacca on an, from Ist March, 1971 and if so, to what extent?
6. (7)Whether the Surveyors, Messrs Alliance Enterprises were appointed by, the defendant No.1.
7. (8)Whether the surveyors found the plaintiff's claim established and recommended payment of Rs.
8. 4,37,916.06 for the settlement plaintiffs claim against the policies in suit?
9. (9)Whether the policies of Insurance stood discharged, frustrated or suspended with the promulgation of the Civil Commotion Compensation --Fund Ordinance, 1971?
10. (10)Whether after the repeal of the Civil Commotion Compensation Fun'' Ordinance, 1971, the liability, if any, of the defendant No.1 which cease or suspended was not revived?
11. (11)Whether the loss in suit was not covered under the Civil Commotion: Compensation Fund Ordinance, 1971 as alleged by the defendants Nos.2 and 3?
12. (12)If the liability of the defendant Na.2 was once there under the Civil Commotion Compensation Fund Ordinance 1971, whether the same could be taken away by the Repealing Ordinance 1972 and the liability of the defendants Nos.2 and 3 ceased?
13. (12-A)Whether the conditions prevailing in East Pakistan at the relevant time were war like conditions and were not that of riots and civil commotions?
14. (13)Whether the repudiation of the plaintiff's claim by the defendants is legal and valid?
15. (14)Whether the plaintiffs are entitled to any relief and if so to what extent?
16. ISSUE NO.1.--The learned counsel for the defendant No.1 has challenged the maintainability of the suit and the jurisdiction of this Court on the ground that the defendant No.1 has its registered office at Peshawar and therefore, in view of the provisions of section 20 of C.P.C. Suit against the defendant No.1 is not maintainable. From the evidence it is fully established that the defendant No.1 has its registered office at Peshawar. Previously it had its registered office at Chittagong, but after the creation of Bangladesh it has been shifted to Peshawar. In this regard reference can be made to a notification issued on 29-2-1972 published in the Gazette of Pakistan, Extra-ordinary dated 2- 3-1972 when the registered office of the defendant No.1 was allowed to be transferred from Chittagong to Peshawar. Ahmed Saeed Hashmi has been examined on behalf of the defendant No.1. He has sated that the procedure is that branches are independently dealing with the claims and after settlement of the claim they send the papers to the head office.
17. Mr. Anis, the learned counsel for the plaintiffs has contended that the defendant No.1 has its head office at Karachi within the jurisdiction of this Hon'ble Court and therefore, the suit against it is maintainable.
18. The well-settled position in law is that section 20, C.P.C. Is not applicable to the High Court. From the evidence it is proved that the defendant No.1 has its head office at Karachi. Similar question as in the present case arose in WPIDC v. Fateh Textile Mills, PLD 1964 Kar. 11 and it was observed that the restriction prescribed by sections 16, 17 and 20 C.P.C. Having been removed the original jurisdiction of the High Court is enlarged and it has jurisdiction to entertain the suit. In view of the observation my finding is that suit is competent and maintainable and further that the Court has jurisdiction to entertain the suit.
19. ISSUE N0.2. Not pressed.
20. ISSUE NO. 3. Not pressed.
21. ISSUES NOS. 4 and 5: The main contention of the plaintiffs is that the losses caused to them on Ist, 2nd and 3rd March, 1971 were covered by the Policies issued by the defendant No.1. There is no dispute that the defendant No.1 had issued policy Ex.5/6 and 5/7 in which riot and strike endorsement was also attached in respect-of which premium had been paid. This endorsement proved that "it is hereby agreed and declared that notwithstanding anything contained in the written policy to the contrary the insurance under this policy shall extend to cover, riot, strike damage which for the purpose of endorsement shall mean loss or damage to the property directly caused by any disturbance to public peace not being occurrence mentioned in condition No.6" which reads as follows:- `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)War, invasion, act of foreign enemy, hostilities or warlike operations (whether war be declared or not), civil war.
22. (b)Mutiny, civil commotion assuming the proportions of or amounting to a popular rising, military rising, insurrection, rebellion, revolution, military or usurped power, or any act of any person acting on behalf of or in connection with any organisation with activities directed towards the overthrow by force of the Government de jure or defacto or to the influence of it by terrorism or violence.
23. According to this condition any loss inter alia caused due to war, invasion, mutiny, civil commotion assuming the proportions or amounting to popul4r rising, or revolution, will not be covered under the policies. Mr. Rauf the leaned counsel has contended that on Ist, 2nd and 3rd of March, 1971, in the then East Pakistan conditions like mutiny, civil commotion assuming proportions or amounting to rising were operating and therefore the defendant No.1 is not liable to compensate the plaintiffs.
24. (1)Keesing's Research Report 9 Pakistan from 1947 to Creation of Bangladesh.
25. (2)Pakistan's Crises in Leadership by Fazal Muqeem Khan.
26. (3)Witness to Surrender by Siddiq Salik.
27. (4)White Paper issued on the crises of East Pakistan on 5 August 71 by the Government of Pakistan and (5)Pakistan: Failure in National Integration by Rounaq Jahan.
28. Reference can also be made to the East Pakistan Tragedy by L. Rushbrook Williams. `While calling for a continued hartal (general strike) in Government offices and the law Courts these conditions were accepted, and urging the people of East Pakistan to stop payment of taxes and revenue to the Government until power was transferred to the people's representatives. Sheikh Mujibur Rahman said there was `still time for us to live as brothers if things are settled peacefully'.
29. President General Yahya Khan arrived in Dacca on March 15 for talks with Sheikh Mujibur Rahman.
30. By then the strike had entered the third week. As no settlement could be reached President Yahya Khan postponed the session of the National Assembly to unspecified date and returned back to West Pakistan on March 25. `Full scale civil war erupted in East Pakistan on March 26, 1971 when a clandestine radio broadcast announced the proclamation by Sheikh Mujibur Rehman and the Awami League of the `Sovereign Independent People's Republic of Bangladesh.
31. Reference has been made to Blood and Tears by Qutubuddin Aziz in which the terrorist activities have been accounted. In the introduction it has been stated that in the first week of March 1971 the Awami League had fired, the first salvo of revolt in East Pakistan and it triggered off a forest fire of lawlessness, arson, loot and wanton murder all over the province, `At page it has been stated that "on March 3 the General Strike ordered by the Awami League all over the province, paralysed life in Dacca. Rampaging mobs, led by militants, carried tire, terror and death into the homes of thousands of non-Bengalis under the order of Awami League High Command, the Radio and Television Stations in Dacca gave up playing Pakistan's National Anthem and replaced it by the `Bangladesh Anthem'. From March .l to 10 violent mobs led by Awami League Jingoes, looted and burnt many non-Bengali houses and shops and kidnapped rich West Pakistani businessmen for ; ransom". On 6th March there was a jail break of Central Prison in Dacca and 341 prisoners escaped,'
32. On March 7 Sheikh Mujibur Rahman announced his long range action programme against the Federal Government at a mass meeting or the Ramna Race Course Ground. `Unfurled on the platform was the new flag of Bangladesh'. In Pakistan's Crises in Leadership by Fazal Muqeem Khan at page 56 it has been stated that "followers of the Awami League and the people under its influence revolted on March 1. They were joined by the extremists of other parties and communist of all hues and colours who were already preparing and biding their time for just this kind of opportunity to start with. It was not a revolt against dictatorship. Sheikh Mujibur Rehman, even if prudence had dictated him, could not keep in a low key the forces of anger'. The remaining books referred by Mr. A. Rauf corroborate these facts. Reference can also be made to the East Pakistan Tragedy by L. Rushbrook Williams. In appendix 5 of the book the instances of lawlessness and violence committed by Awami League prior to March 25, 1971 have been stated. According to the author on `March 1 Shaikh Mujibur Rahman called a strike in Dacca to protest against the temporary postponement of the meeting of the National Assembly, Awami Leaguers looted Naryan Ganj Rifle Club for arms which were collected by the student militants in the Iqbal and Jagannath Halls of Dacca University. During the night there was widespread looting.
33. On March 2 fire-arm shops were looted. Mobs with firearms raided business premises in Jinnah Avenue and Baitul Makarram' on March 3 violence spread to other areas also. Loot and arson was rampant. `Sheikh Mujibur Rehman announced a civil disobedience movement to `secure the rights of the people of Bangla Desh------------..Radio and Television were compelled to play the new Bangla Desh National Anthem. `On March 5 telephone and telegraph employees stopped work on Awami League's orders. On March 6 Jail break was reported. On March 7 Shaikh Mujibur Rehman proclaimed plans for running a parallel Government and issued directions for non payment of taxes, closure of all Government offices, Courts and educational institutions. From all these books which narrate incidents facts and happenings during March 1971 and onwards it seems established that the agitation in East Pakistan was started by making political demands but the situation turned to worst and from the date when the session of National Assembly was postponed the agitation which had started from earlier than March 1971 assumed the proportion of mutiny and revolution which included boycott of the Government offices, non-payment of taxes, control of information media, formation of parallel Government and loot, arson and massacre of non- Banaglies. This process continued culminating in declaration of independence and creation of Bangladesh to which stamp of success was given by military intervention of India. In this regard Mr. Rauf has referred to Rauf & Co. Ltd. v. Alpha Insurance Co. Ltd. PLD 1981 Kar. 457. While referring to the afore stated books it was observed that the facts. And conditions prevailing in the then East Pakistan were not akin to riot or Civil Commotion. In this judgment the meaning of the term Civil Commotion as given in the Strouds Judicial Dictionary, IV edition has been quoted 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 any usurped power'.
34. (2)An organised conspiracy to commit criminal acts without more does not amount to civil commotion.
35. (3)Fire Policy.-- The following definition of this phrase in Welford and Otterbarry'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.
36. Any agitation, demonstration or movement though started peacefully in organised manner leading to violent or terrorist activities for a common purpose to overthrow the existing Government amounts to a civil commotion. In degrees and stages Civil Commotion is at a higher and more intensive level than not and is short of civil war. In the present case the incidents which have been recounted lead to the conclusion that the incidents of 1st, 2nd and 3rd March indicate that they were a chain and link with the previous incidents growing into a civil commotion assuming the proportion of mutiny.
37. Mr. Anis has contended that the incident in the referred case occurred in April and not early March as in the present case. There the loss was suffered during March/April, 1971. In any event the incidents on 1st, 2nd and 3rd March, 1971 were part of civil commotion which assumed the proportion of a popular rising, rebellion and revolt."
38. ISSUE NO 4: My finding is as follows:-- The loss caused to the plaintiff was not covered by the policies.
39. ISSUE N0 5: The policies had not frustrated due to afore stated incidents in East Pakistan and the defendant No.1 is not liable as the loss was not covered by the policies.
40. ISSUE N0.6: In view of the above discussion and the survey report of the surveyors appointed by defendant No.1 it is proved that due to the occurrences in Dacca on 1st, tad and 3rd March, 1971, the plaintiffs have suffered loss to the extent of Rs. 4,37,916.06.
41. ISSUE N0.7: From the report of the Alliance Enterprises Ex.5/8 it is established that they were appointed by the defendant No.1. My finding is in the affirmative.
42. ISSUE N0.8: From the survey report it is clear that after due investigation the surveyors had estimated the loss suffered by the plaintiffs to the extent of Rs. 437,916 payment of which was recommended subject to the conditions, warranties and exceptions under the policy. My finding is accordingly.
43. ISSUES N0.9 AND 10: Under section 8 of the Civil Commotion Compensation Fund Ordinance, 1971, compensation for any loss- suffered in respect of any insurance policy during the period commencing the 1st day of March, 1971 and ending on a date specified in the official gazette due to fire or destructive action taken by person during civil commotion or die to action taken by lawful authority to suppress civil commotion. The learned counsel for the parties agree that dues to the promulgation of this Ordinance, the policy of insurance was not discharged nor frustrated but it remained suspended and was revived no sooner the Ordinance of 1971 was repealed by Civil Commotion Compensation Fund (Repeating) Ordinance, 1972 which provided that after the repeal no compensation shall be paid. Therefore my finding on these issues is as follows:-- ISSUE N0.9: In the negative ISSUE N0.10: The liability, if any, had been suspended, revived after the repeal of the Civil Commotion Compensation Ordinance, 1971.
44. ISSUE NO.11: Not pressed.
45. ISSUE N0.12: Under the provisions of Civil Commotion Compensation I-, uric! Ordinance compensation for the loss caused due to specified events was to be paid, out of the fund created for that purpose. This Ordinance was repealed by Civil Commotion Compensation Fund (Repeal)
46. Ordinance, 1972 which provided that after repeal no compensation shall be paid. In view of this statutory provision the. Defendants Nos.2 and 3 were not liable to pay compensation. In this regard reference can be made to A. Rauf & Co. v. Alpha Insurance. Co. Ltd. PLD 1981 Kar. 457. My finding is in the affirmative.
47. ISSUE N0.12-A: In para. 35 of the written statement it was pleaded that obligation if any, by the defendant No.1 under the alleged policy of insurance stood discharged and policy itself frustrated with the promulgation of Civil Commotion Compensation Fund Ordinance, 1971, and the repeal of the said Ordinance did not revive the liability of the Insurance Company. In view of the finding on the afore stated issues the finding is in the negative.
48. ISSUE N0.13: In view of the finding on issues No.4, 5 and 6 the repudiation of the plaintiffs claim was proper and valid.
49. ISSUE N0.14: The plaintiffs are not entitled to any relief and the suit is dismissed with no order as to costs.
50. M.Y.H./B-115/K