1. ' ABDUL RAHIM KAZI, J---The present appellant being aggrieved with the judgment and decree passed by the learned Single Judge on 7-2-1983 in Suit No,77 of 1966 decreeing the suit of the respondent No,1 for Rs,15,00,000 with interest at 6% per annum from the date of filing of the suit till realisation has preferred this appeal. Briefly the facts are that respondent No,1 had filed the said suit against the appellant for recovery of a sum of Rs,40,00,000 with interest. The suit was originally filed by M/s. United Oriental Steamship Company and its partners who were pleaded as plaintiffs Nos,2 to 5. The case of the plaintiff is that they were registered owners of the vessel s.s. "Ilyas Bakhsh" which was insured with the present appellant against war risk w,e,f, 2-9-1965 in the said amount. Respondent No,1 had informed the Insurance Company on 16-9-1965 that according to information received by them the said vessel was seized and impounded by the Government of India at Bombay and thus a notice of abandonment of the ship was also served on the present appellant with a claim for Rs,40,00,000 and on account of failure of appellant, the said suit was filed. The appellant filed their written statement on 1-9-1966 denying the claim of the plaintiff. They also denied the fact that plaintiff No,1 were the registered partnership firm. The present appellant further contended in their written statement that no contract of insurance was concluded between the parties and the abandonment of vessel was laso challenged as ineffective and invalid.
2. According to the present appellant it had at all times shown the value of the vessel to be Rs,15,00,000 for the purpose of actual total loss and constructive total loss and thus claim of Rs,40,00,000 was also disputed. On an application moved by the present appellant, relying upon the provisions of War Risk Insurance Ordinance, 1965 the present respondents Nos,2 and 3 were also impleaded as defendants Nos,2 and 3 by way of 3rd party. The present respondents Nos,2 and 3 also filed their joint written statement on 3-1-1980 wherein a plea was taken that the respondent No,2 was only a delegatee of the Central Government and was not personally liable in any manner and as such no decree could be passed against them. It was further pleaded by the respondents Nos,2 and 3 that admittedly the said vessel was impounded by the Indian Authorities on 7-9-1965 while the War Risks Insurance Ordinance, 1965 was promulgated on 9-9-1965 and as such there was no question of extending provisions of the Ordinance to the case of the said vessel.
3. ' By an order dated 14-11-1966 8 issues had been framed but after joinder of respondents Nos,2 and 3 and filing of their written statement an additional issue was framed by an order passed on 26-1- 1981 which reads:-- "Whether defendant No,1 has no capacity to enter into any contract of war risk insurance in view of the provisions of section 21 of the War Risks Insurance Ordinance, 1965? If so, what is its effect on the contract of insurance?"
4. ' The parties led their evidence and the learned Single Judge after hearing the Advocates for the parties was pleased to pass the impugned judgment and decree.
5. ' We have heard the learned counsel for the parties. At the very outset learned counsel for the present appellant has pointed out that no finding has been given by the learned Single Judge on the additional issue which is a very material issue in the suit and is likely to effect the very result.
6. Learned counsel has referred to the provisions of War Risks Insurance Ordinance, 1965. Section 21 of the War Risks Insurance Ordinance, 1965 reads as under:- "21. Restriction on carryinn on certain insurance business.--(1) After the date on which any Scheme or part of any Scheme is put into operation no person shall, except a person authorized by the Central Government as their agents to issue policies in pursuance of such scheme, carry on the business of insuring against war risks any goods or property required to be insured under this Ordinance.
(2) Whoever contravenes the provisions of subsection (1) shall be punishable with fine which may extend to five thousand rupees and with further fine which may extend to one thousand rupees for every day after the first on which the contravention continues."
7. ' He has also referred to The War Risks (Ships) Insurance Scheme published in Gazette of Pakistan, Extraordinary, of 12th September, 1965 under section 21 of the Ordinance. This scheme under the heading "Instruction" shows that the same has been put into operation by the Government of Pakistan from 9-9-1965 whereby the Government has undertaken to insure against War Risk, ships of the value exceeding Rs,3,00,000.
8. ' In view of the above provisions Mr. Mansoorul Arfin, Advocate for the appellant, has submitted that no insurance company could under write the war risk after 9-9-1965 and the correspondence in present case shows that there was no definite and concluded contract of insurance between the parties before the said date. He has taken us through the correspondence produced in evidence by the parties. As against this Mr. Yousuf Rafi, learned counsel for respondent No,1 has also placed reliance on the same correspondence and has submitted that this correspondence shows that a conclusive contract had been entered into between the parties as before cut off date the present appellant had accepted the premium and, therefore, they were liable under the same. We have carefully considered the correspondence between the parties. It may be observed that the first point which requires determination will be as to what is the cut off date." Whether it is 9-9-1965 on which date the said Ordinance was promulgated or it is 12-9-1965 on which date the scheme was notified through Gazette of Pakistan giving it effect retrospectively from 9-9-1965. It is also apparent from the judgment in suit that no finding is given on the additional issue. The correspondence referred to by the learned counsel for the parties shows that vide letter dated 2-9- 1965 the present respondent No,1 had requested the present appellant to insure the said vessel against the war risk for which an amount of Rs,2,000 was said to be sent through cheque. The same letter shows that no such cheque was sent. There is an endorsement on this letter by the representative of the present appellant which reads: "The cover will commence after I have received confirmation from my reinsurers in London." Again in another letter dated 3-9-1965 the present respondent No,1 had enclosed a bank guarantee of Rs,50,000 requesting the present appellant for war risk insurance of their 3 vessels. Thereafter also the parties had exchanged a number of letteRs, The last letter being dated 2-12-1965 in respect of War Risk Insurance. All the correspondence show that the present respondent No,1 had been acting on the assumption that the said vessel had stood insured againt the war risk w,e,f, 2-9-1965 while the present appellant had been avoiding to make a definite commitment. The learned Single Judge has held that it was a concluded contract but it has not been held as to on what date the said contract was concluded.
9. In the judgment, while dealing with issue No,2, which also reflects on the point involved in the said additional issue the learned Single Judge, taking into cumulative effect of the entire corresponding has observed that there was a concluded contract between the parties but it has not been determined specifically as to on what date the contract had been concluded. In view of the above provisions of War Risks Insurance Ordinance, 1965 and the said scheme, the determination of this point can be crucial for the decision in the suit. As the determination of this point also involves the question of fact, we would refrain from giving any finding on additional issue at this stage but would remand the case to the learned Single Judge to give finding on this issue as well after hearing the learned counsel for the parties.
10. ' The upshot of the above discussion is that the present appeal is allowed, the judgment and decree passed in the suit is set aside and the case is remanded to the learned Single Judge to give findings on the additional issue 1 as well as all the issues afresh. There will be no order as to costs.
11. ' Above are the reasons for the short order announced by us in Court today.