' SALEEM AKHTAR, J.---This appeal by the leave to the Court arises from the judgment of the High Court passed in High Court Appeal filed by the appellant.
2. The appellant is a public limited company incorporated under the Companies Act. Respondent No.2 demanded Rs.1,30,29,807.53 and other dues as War Risks Insurance dues. The appellant protested against the payment as illegal, ultra vires and without jurisdiction but to no avail.
Consequently a suit for declaration and injunction was filed on the original side of the High Court of Sindh, Karachi. The appellant also filed an application under Order 39, rules 1 and 2, C.P.C. For grant of temporary injunction, but it was dismissed. The appellant then filed a High Court Appeal which was dismissed by the impugned judgment which reads as follows:-- "In the above appeal the appellants have raised a number of grounds including the question that they were entitled to exemption from the payment of war risk premium on the ground that their request for exemption was not granted by the Federation though in case of WAPDA the same was granted. The other ground is that the assessment of the valuation has been made ex parte not in terms of the War Risks Insurance Ordinance and the rules framed thereunder.
(2) As regards the exemption, we are not satisfied that the appellants have any justiciable case.
However, as regards the assessm ent of the valuation it seems that the same was done in the absence of the appellants. According to respondent No.2, who is present in person, he had served the notice on the appellants before the assessment order was made. However, he is agreeable to make fresh assessm ent in case the appellants appear before him and place all the relevant material for the purpose of arriving at the correct valuation.
(3) We would, therefore, dispose of the Suit No.600 of 1987 by consent of the learned counsel for the appellants and respondent No.1 and would remand the case to respondent No.2 with the direction to make fresh assessm ent after notice to the appellant who would place all the material whatever they wish to rely upon. They will appear before respondent No.2 on 12-6-1989 at 11-00 a.m. At the office of respondent No.2. The appeal is also disposed of." From the judgment it seems that the appellant had raised objection to the demand of respondent No.2 on the plea that as it has been taken over by WAPDA which has been exempted from War Risks Insurance dues, the appellant may also be exempted from such demand. This plea did not find favour with the learned Judges of the Bench who rejected it and it seems that they proceeded to further hear the case in which another plea was considered that respondent No.2 had passed the order of assessment ex parte and without hearing the appellant. Respondent's advocate offered to hear the appellant and reassess dues and it seems that to that effect the learned counsel for the appellant appearing in Court consented to such a procedure. By the impugned judgment which was against an order passed dismissing appellant's application under Order 39, rules 1 and 2, C.P.C. The whole suit was disposed of and the case was remanded to respondent No.2 for rehearing and reassessment.
3. Leave was granted to consider that an admission made by counsel on a misapprehension of the correct position could be no hurdle for the parties to seek decision on merits. Reference was made to Government of West Pakistan v. Nasir M. Khan PLD 1965 SC 106.
4. The learned counsel for the appellant has not appeared and has requested for adjournment. We have however heard Mr. Shahoodul Haq the learned counsel for the respondent. After going through the record and hearing the learned counsel for the respondent it seems that the appellant is not prepared to accept that its advocate had consented to the disposal of the main suit and alternatively that such a consent was given under misapprehension. If the learned counsel for the appellant would have appeared he would have been in a better position to apprise us of the correct facts. From the impugned judgment its seems that the question of legality of demand made by respondent No.2 was challenged particularly on the ground that the appellant was entitled to exemption in the same manner as WAPDA had been granted. The learned Judges held that they were not satisfied that the appellant had any justiciable cause. No further reasoning has been given for such a conclusion. However, the possibility cannot be ruled out that when the learned counsel appearing before the High Court realized that he had not been able to convince on merits and there was no possibility of grant of interim injunction which must entail recovery of the dues from the appellant which it was avoiding at that stage, he may have consented to the disposal of the suit by remanding the case which may at least give temporary relief from recovery and would provide an opportunity to produce the records and participate in the hearing for determination of the dues. However, in the impugned judgment while rejecting the plea for grant of exemption such details' have not been mentioned. We are aware that the learned Judges were hearing appeal against grant of interim injunction and therefore the merits of the case could not have been finally decided. The absence of the learned counsel for the appellant and the situation which we foresee on examining the impugned judgment we reserve the judgment for the time being and afford an opportunity to the learned counsel for the parties particularly the appellant's advocate to submit his written arguments and further if he wants orally to be heard, an opportunity shall be afforded to him by one of us who would be sitting in Karachi in the near future in the first instance.
' SALEEM AKHTAR, J.---In continuation of the judgment/order passed on 27-2-1993, hearing was afforded to the learned counsel for the parties by one of us at Karachi on 21-3-1993. Mr. Rustam J.E.
Kaikobad, learned counsel for the appellant appeared and filed his written arguments. The written arguments are merely reproduction of the memorandum of appeal and do not require any further consideration. Mr. Shahoodul Haq Advocate who had argued the matter earlier did not appear.
During his arguments Mr. Rustam J.E. Kaikobad was not able to further throw any light on the question whether consent had been given by the learned counsel to dispose of the entire suit as recorded in the impugned order. He however pleaded that such step could not have been taken by the Advocate who was arguing an injunction application and was not competent to make concession for the entire claim. As the Court was hearing appeal against an order rejecting application under Order XXXIX, rules 1 and 2, C.P.C., it was to consider prima facie nature of the claim of exemption for the purposes of deciding injunction application. Except the observation that the appellant had no justiciable case in that regard, no other observation was made on the merits of the claim of exemption nor any further reasoning was given for rejecting it. However, it seems that the respondent was prepared to hear and make fresh assessment and therefore with the consent of the parties as recorded, the suit was disposed of. From the impugned judgment it is not clear that the appellant had consented to withdraw his claim for exemption. In these circumstances, .There is every possibility that the agreement of the parties to make fresh assessm ent and consent to that extent may have been misunderstood as consent for disposal of the entire suit. We would therefore allow the appeal and remand the case to the High Court for consideration of the appeal on merits.