These are three applications filed under Order VII, Rule 11, C.P.C. with the prayers that all the three plaints be rejected in the above suits for the reasons mentioned in the said applications. Since the facts of all the three suits as well as the law point involved in all these applications are identical, I intend to dispose of all of them through this common order.
2. All these three suits are for recovery of damages/monetary compensation filed under section 1 of the Fatal Accidents Act, 1855 (hereinafter referred to as the Act, 1855). Admitted facts of these three suits are that all the defendants are common inasmuch as that the defendant No,3 namely, National Logistic Cell (hereinafter referred to as NLC) who being one of the Government organizations, was sued through Ministry of Defence, Government of Pakistan while defendant No,2 is the same driver who, at the relevant time, was driving N.L.C. Trailer bearing No,83660. Defendant No,3 is the National Insurance Corporation; that on 24-4-1988, when the above Trailer reached near Civil Hospital Thatta, it dashed with a standing Rickshaw bearing No,KAH-4580 from the back side resulting in death of four persons. Present three suits have been filed by the legal representatives of these four deceased persons who died as a result of above-mentioned accident.
3. In all these cases, evidence was recorded and the matter was fixed for arguments when these applications were filed by the defendant No,1 seeking rejection of all the three plaints. The first ground raised by the learned counsel appearing for the defendant No,1 is that the defendant No,2, namely, Niaz Ahmed son of Faqir Muhammad was tried by the Military Court and was acquitted of the charge of negligence. In support, copy of an order, dated 6-10-1988 was filed. The second ground is that this Court has no jurisdiction in view of the rule laid down by the Honourable Supreme Court in the case of Force Commander, Airport Security Force, Karachi and others v. Haji Muhammad Rashid and another 1996 SCM R 1614. During the course of hearing, learned counsel for the defendant No,1 referred further cases in support of his contention that the jurisdiction of this Court is barred. Reliance was placed on Mrs. Shahida Zaheer Abbasi and 4 others v. President of Pakistan and 6 others PLD 1996 SC 632, Abdul Ghaffar Lakhani v. Federal Government of Pakistan and others PLD 1986 Kar. 525, Brigade Commander Headquarters Field Command N.L.C. Karachi v.
The State 1996 M LD 469 and the case of Muhammad Nawaz Baloch v. President of Pakistan and 4 others 1999 M LD 359.
4. In so far as the first ground is concerned, it would not be just and proper to consider the copy of an order passed by Commandant South Zone N.L.C. which was neither filed with the written statement nor was produced in the evidence. As observed earlier, this case is fixed for final arguments after recording the entire evidence. I have also gone through the said order. It is not clear under which provision of law the said inquiry was conducted. It is also not clear whether any evidence was recorded or the legal heirs of those four persons who died in the. Accident were permitted to participate in the said proceedings. In absence of any sanction of law behind such inquiry, it cannot be said that such proceedings will create constructive res judicata. Mr. Nasir Maqsood, Advocate for plaintiffs argued that since these are applications under Order VII, Rule 11, C.P.C., while deciding the same only contents of plaint are to be looked into. In so far as these cases are concerned, this principle is not attracted. A Court is required to confine the contents of the plaint for deciding an application under Order VII, Rule 11, C.P.C. when no evidence has been recorded but once evidence has been recorded and the proceedings have come to an end, the Court will be entitled to consider the admitted facts of the case. In the case of Jewan and 7 others v. Federation of Pakistan and 2 others 1994 SCM R 826, it was held, inter alia, by the Honourble Supreme Court that the Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. cannot take into consideration the defence raised by the defendant. It was further held that if there is some other material before the Court apart from the plaint which is admitted by the plaintiff, the same can also be looked into and can be taken into consideration by the Court while deciding an application under Order VII, Rule 11, C.P.C. It was further held that, "The Court would not been titled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence". In the instant case, it is the last cited rule as laid by the Honourble Supreme Court in the case Jewan which is attracted. With this view, I have considered the respective submissions of both the learned counsel.
5. The case of Haji Muhammad Rasheed (supra) arises from a decision of a Division Bench of this Court in two Constitutional petitions against the punishment awarded by the Summary Court Martial. It was held by a Full Bench of Honourable Supreme Court that the Services Tribunal had no power to examine the legality of conviction and sentence recorded under the Airport Security Act, 1975 or under the Pakistan Army Act, 1952. Nowhere, in that case, it was held that a suit for monetary compensation arising out of the Act, 1855 is not maintainable. In that case, interpretation of Service Rules and allied matters were involved. In the case of Mrs. Shahida Zaheer Abbasi (supra), again the matter was considered in reference to the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, 1973. While following the rule laid down in the case of Brigd. (Retd.) F.B. Ali v.
The State PLD 1975 SC 506 it was held that the bar contained in Article 199(3) of the Constitution on the powers of High Court for exercising writ jurisdiction is not absolute in nature and that it could be exercised in the cases, namely, where the impugned action is mala fide or without jurisdiction or coram non judice. Again, in that case, section 9 of the Code of Civil Procedures, 1908 in reference to Act, 1855 was not considered. 'Therefore, the rule laid down in the case of Mrs. Shahida Zaheer Abbasi is of no help to Mr. Abdul Rauf. No provision of any statute or enactment or any judicial precedent was cited at bar which may indicate that a civil Court has no jurisdiction to entertain a claim under Fatal Accidents Act, 1855 against an Army Organization.
6. In the case of Abdul Ghaffar Lakhani (supra), one of the question involved was in reference to the Constitutional jurisdiction to be exercised by the High Court under Article 199 of the Constitution, 1973; the rule laid down in the case of F.B. Ali was reiterated. The case of Muhammad Nawaz Baloch also refers to the jurisdiction of High Court under Article 199. In the instant case, it is yet to be established by the defendant No,2 that the Tribunal constituted for his trial was constituted under some special law barring jurisdiction of the ordinary Civil Court and that such Tribunal was lawfully constituted and the trial conducted was concluded in a lawful manner exonerating the said defendant from the allegations. Only under such circumstances ouster of jurisdiction is completed.
No material was placed to show that the jurisdiction of this Court is ousted in the aforesaid manner. I am fortified in my view by the rule laid down by the Honourble Supreme Court in the case Zafarul Ahsan v. Republic of Pakistan PLD 1960 SC 113. Section 9 of the C.P.C., indeed, bars a suit which is even impliedly barred. There is no element of impliedness in this case. In the case of Zafarul Ahsan (supra) the appellant was retired from service for misconduct by the President under sub-clause (b) of clause (5) to Article 6 of the Laws (Continuance in Force) Order, 1958 against which the appellant moved High Court of West Pakistan through writ petition against the President's order which was dismissed on the ground that the Court had no jurisdiction to consider the merits of the case. The appeal was dismissed with no order as to cost but following observation was made by the Full Bench of Honourble Supreme Court while defining as to how the jurisdiction of Court is ousted:-- "...If a statute provides that an order made by an authority action under it shall not be called in question in any Court, all that is necessary to oust the jurisdiction of the Courts is that the authority should have been constituted as required by the statute, the person proceeded against should be subject to the jurisdiction of the authority, the ground on which action is taken should be within the grounds stated by the statute, and the order made should be such as could have been made under the statute. These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority. If an appellate authority is provided by the statute the omissions or irregularity alleged will be a matter for that authority, and not, as rightly observed by the High Court, for a Court of law.
Of course where the proceedings are taken mala file and the statute is used merely as a cloak to cover an act which in fact is not taken though it purports to have been taken under the statute, the order will not, in accordance with a long line of decisions in England and in this Subcontinent, be treated as an order under the statute..."
7. The objection to the maintainability of these suits were raised for the first time in these proceedings by the learned counsel appearing for the National Logistic Cell. In previous suits which were decreed against the same defendant and wherein the same counsel was appearing, such objections were not raised. Therefore, I have dealt in detail with the respective submissions of both the learned counsel. Mr. Nasir Maqsood has drawn my attention to the case Rukhsana Parveen Nazir v. National Logistic Cell and 2 others 1994 M LD 626, Mst. Sakina and 3 others v. Messrs National Logistic Cell through Commander and 2 others 1995' MLD 633 and Mai Nooran v. National Logistic Cell, Ministry of Defence, Government of Pakistan through its Commander and 2 others 1995 CLC 1969. In all the said three cases, judgments/decrees were passed against one of the same defendant, now, the defendant No,1 in the present suits. I am told that the appeals filed against these reported cases were also rejected by the Division Benches of this Court. Even in the case Syed Ghaffar Hussain and 3 others v. The Commander (Commanding Officer) Headquarters National Logistic Cell, Karachi and 3 others 1994 M LD 2010, the Commander/respondent himself appeared but he did not raise any objection to the maintainability of that suit. In that suit, the concerned driver of N.L.C. Tanker was not impleaded and the decree was passed against defendant No, 1 . In the case Ameena v. Government of Pakistan, Ministry of Defence through Secretary and another 1994 M LD 1922, compensation was claimed as a result of death of plaintiff's husband due to aircraft crash on 6th July, 1988 which belonged to Pakistan Air Force which was also impleaded as defendant No,2. The suit was decreed. Appeal filed against the judgment of a learned Single Judge of this Court (H.C.A.129 of 1995) was also rejected by a Division Bench of this Court comprising Syed Saeed Ashhad and Majida Razvi, JJ. One of the plea raised by the standing counsel in the above said appeal was that according to the departmental inquiry, it was found that no negligence/carelessness was committed by the pilot. In the instant suits, the same plea has been raised by Mr. Abdul Rauf Khan, Advocate for defendant No,1 that as per Court of Enquiry Report, the defendant No,2 who was driver of the trailer, was acquitted as no negligence was found to have been committed by him. This report was not produced in accordance with law of evidence but the learned counsel for the Defendants insisted to consider the same for the purpose of rejecting or dismissing the suit. Such these circumstances, I am not inclined to consider the photo copies of such reports which were not brought on record through the process of evidence.
8. I have examined in detail the contents of Annexure 'A' filed with the instant applications which is an order of Commander South Zone, N.L.C. according to this report, which is given under the heading of 'Court of Inquiry' an amount of Rs,2,50,000 was paid to the legal heirs of the four deceased after giving a finding that the accident did not take place due to fault of C.D. Niaz Muhammad, defendant No,2. Perusal of this order indicates that this is not an order which is protected by section 133 of the Pakistan Army Act, 1952 (hereinafter referred to as the Act 1952) which bars all remedies against any decision of a Court Martial except as per provisions of the Act 1952. According to this section, no appeal or application shall lie in respect of any proceeding or decision of a Court Martial to any Court exercising any jurisdiction whatsoever. However, remedy provided against any finding and sentence of Court Martial is mentioned in section 131 of the Act, 1952 which provides that subject to the provisions of the Act, 1952 any person who is aggrieved by the finding or sentence of a General, Field General or District Court Martial, may submit a petition, before confirmation of such finding or sentence to the Officer -empowered to confirm it. After confirmation of such finding or sentence, the remedy lies to the Federal Government or to the Chief of Army Staff or to any prescribed officer who is superior in command of such officer who confirmed such finding or sentence. The Military Courts are defined under section 80 of the Act 1952 which are of four kinds, namely, (1) General Court Martial; (2) District Court Martial; (3) Field General Court Martial and (4) Summary Court Martial. The instant inquiry was conducted by none of the Court Martials as mentioned in section 80 and, therefore, in my considered view, the bar contained in section 133 is not attracted. The defendant No,1 was also not able to show as to how N.L.C. or its employees fall within the definition of persons as mentioned in section 2 of the Act, 1952. I have gone through the entire contents of the joint written statement of the defendants Nos.1 and 2 which is absolutely silent on the point that the said defendants were governed by the provisions of the Act, 1952.
9. As a result of the above discussion, I am of the considered view that all these three applications for rejection of plaint being misconceived and frivolous are liable to be dismissed subject to payment of cost of Rs,2,000 each by the defendant No,1. Ordered accordingly.
10. Office is directed to fix all the three suits for final arguments.