This judgment will dispose of R:S.As. Nos.23 and 24 of 1993 as both involve identical questions of fact and law. _
2. Facts giving rise to the present appeals are that the plaintiff/respondent (herein) Mst. Safia Begum alongwith her husband late Nawab Din purchased two life policies Nos.50/3833050 and 50/3833051 for rupees one lac each on 8-2-1983. Nawab Din one of the policy-holder died in a railway accident on 12-4-1984 just after one year of taking the insurance cover. After his death, Mst.
Safia/respondent lodged a death claim with the appellant-Corporation in respect of the said policy. Since it was the case of early death claim, so the investigations were conducted by the appellant --Corporation and it was found that the insured Nawab Din was patient of hypertension which he has not disclosed in his proposal form at the time of purchase of policy in question.
Hence, the death claim was repudiated on 6-5-1985 on-the ground of concealment of material facts.
2-A.. Mst. Safia Begum/respondent filed a complaint with the Wafaqi Mohtasib, Lahore on 9-8-1986 against the decision of the appellants/ Corporation but the Wafaqi Mohtasib, decided the case in favour of the State Life Insurance Corporation on 12-6-1988. Thereafter, Mst. Safia filed two separate suits for declaration and mandatory injunction in the Civil Court at Chichawatni against the appellants that she was entitled for a decree of Rs.2,00,000 (two lacs) and consequential relief of mandatory injunction. Both the suits were contested by the appellants, controverting the assertions raised in the plaint by filing the written statement. From the factual controversy appearing on the pleadings of the parties the trial Court led to frame the various issues.
3. After recording and appreciating the evidence of the parties, pro and contra, the trial Court decreed both the suits vide consolidated judgment and decree, dated 6-1-1992. The appellant/Corporation preferred an appeal against the said judgment and decree and the appellate Court vide impugned judgment and, decree, dated 22-2-1993 directed the trial Court to determine the issues Nos.1 to 7 and to record findings thereon separately and then submit the case within one month. After the remand, the trial Court decided issues Nos. l to 7 separately and maintained its judgment and decree passed earlier (decreeing the suits) vide judgment and decree, dated 21-3-1993. Feeling aggrieved, the appellants/Corporation filed an appeal in the Court of learned District Judge, Sahiwal which was dismissed vide judgment and decree, dated 12-7-1993 upholding the findings of the trial Court.
4. Learned counsel for the appellants only objected to the findings of the.Trial Court on issue No.4 which is as under:-- ''Whether the suit is barred by limitation? OPD Learned counsel argued that the suit filed by the plaintiff was barred by limitation because the same was filed beyond period of three years from the date of death of the insured. Nawab Din. The respondent has been prosecuting her case before Wafaqi Mohtasib, therefore, benefit of section 14 of the Limitation Act would not be available to the plaintiff/respondent. Further submitted that the suit was brought by the plaintiff on 17-4-1989 while the death of Nawab Din/her husband occurred on 13-4-1984. Relied on the case of Masud Ahmad and 2 others v. United Bank Ltd. 1992 SCM R 424 and Said Ahmad Khan v. Syed Altaf Hussain 1986 M LD 2283.
5. On the other hand, learned counsel appearing on behalf of contesting respondent has vehemently opposed the arguments of the learned counsel for the appellants and supported the findings of the Courts below Learned counsel contended that the time spent in the proceedings before Wafaqi Mohtasib shall be deemed to be the proceedings in the wrong forum, and therefore, the benefit of section 14 of the Limitation Act is attracted to the present case. He relied on the case of Muhammad Sharif Khan v. Mst. Manzooran Begum 1992 CLC 22.
6. I have heard the learned counsel for the parties and perused the record. Section 14 of the Limitation Act has provided as under:-- "14. Exclusion of time of proceeding bona fide in Court without jurisdiction.---(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal against the defendant, shall be excluded, where the proceeding is founded upon the same action of section and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. "
From the plain reading of section 14 of 'the Limitation Act, it reveals that benefit of this section would be given to the case which has been prosecuted with due diligence in the Court of first instance or in a Court of appeal, against the defendant in good faith which from defect of jurisdiction or other cause of a like nature is unable to entertain the same. The word "Court" has been mentioned in the said section, which means that if prosecution has been in progress in a Court having no jurisdiction to entertain the same. Office of Wafaqi Mohtasib is not a Court as enshrines in section 14 of the said Act, therefore, proceedings on the application of the plaintiff before Wafaqi Mohtsib would not be deemed to be the proceedings in the wrong Court and hence, benefit of section 14 will not be attracted to the instant case. Article 86 of the:imitation Act has provided that:-- 1 2 3
86. (a) On a policy of Insurance when the sum insured is payable after proof of the death hasThree years.The date of the death of the deceased. been given to or received by the insurers.
(b) On a policy of insurance when the sum insured is payable after proof of the loss has been given to or received by the insurers. (b) The date of the occurrence causing the loss.
The limitation provided in this Article is three years starting from the date of A the deceased. .
Section 19 of the said Act envisaged as under:-- "19. Effect of acknowledgement in writing.--- (1) Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed."
8. From the abovesaid provision of law, it is manifestly clear that where an acknowledgement of liability in respect of property or right has been made in writing by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.
9. In the case in hand, the plaintiff/respondent when disappointed by the appellants/Corporation, approached the Wafaqi Mohtasib where she was asked to resort to the remedy by filing of a suit in a Court of competent jurisdiction and then, she again requested the appellants for the payment of insured amount and on the refusal by the Corporation, she filed the suits.
10. Rana Babu Khan, Ex-Officer of State Life Insurance Corporation, appeared in the trial Court as D.W.5 and deposed that the claim of the plaintiff was rejected by the Insurance Company on the ground that at the time of purchase of policy, the insured had concealed the facts, regarding his .Illness. In the evidence of the defendants/appellants it is nowhere stated that the suit was hit by limitation nor it is on the file of the Court that when the claim of the plaintiff was lastly refused by the Insurance Company. It was incumbent on the defendants/appellants to establish on record the date when the claim of the plaintiff was refused by the Corporation. No such letter was issued by the Company to the plaintiff. All the evidence available on record pertains to the fact that the insured had concealed the facts at the time of registration for insured persons. Copy of death certificate produced by the plaintiff (Exh.P.C.) shows that the husband of the plaintiff/respondent had died in Rail accident near Bharia Road Railway Station, Sindh.
11. Though, the date of death of insured is starting point for running limitation under Article 86-A of the Act, yet, where insurer acknowledged p liability to the sum insured by a letter refusing to pay, the limitation will start from the date of signing such letter. Reference in this respect can be made to the case of Messrs State Life Insurance Corporation v. Mst. Kausar Jehan Begum 1982 CLC 1658, wherein Honourable Judge of Karachi High Court has observed as under:-- "Admittedly, case is governed by Article 86 of the Limitation Act, 1908, which provides that on a policy of insurance, when the sum insured is payable after proof of death has been given to or received by the insurers, period of limitation for filing the suit is three years from the date of the death of the deceased. Ejaz Hussain died on May 10, 1969. Three years expired on May 9, 1972 but the suit was filed on July 2, 1973, that is, 14 months after the expiry of the period of limitation.
However,- before the expiration of the prescribed period, that is, before May 9, 1972,_ appellant- defendant Insurance Company wrote a letter Exh.2/9 on 15th December, 1970, to the Assistant Accounts Officer, reproduced in para. 2 above, in which they refused to pay the claim to plaintiff because deceased had given untrue statement with regard to his health, when was being examined for life insurance in respect of the Life Insurance Policy, which letter is an implied acknowledgement of liability with refusal to pay the same, falling within Explanation (a) of section 9 of the Limitation Act."
From, the above, it shows that in such, a situation, the period of limitation will start functioning from the date of signing the letter of refusal to pay the claim to the claimant.
12. From the scanning of the record of the trial Court, it reveals that no such letter was produced by the appellants to prove that on which date the claim of the plaintiff/respondent was refused. It means that important evidence to establish the expiry of period of limitation has not been produced by the appellants and that they have miserably failed to prove the onus on issue No.4 (expiry of limitation for filing the suit). The onus to prove the issue lies on the party who alleges. The onus on the issue of limitation was placed by the trial Court on defendants/appellants, therefore, it was the appellant who had to prove by producing sufficient and convincing evidence that the suit is barred by limitation. It is settled proposition of law that he who alleges must prove and in case such party fails to prove the issue, the, presumption would go against such party. Reliance in this respect can be made to the case Muhammad Zaman Khan v . Sher Afzal Khan PLD 1984 Azad J&K 138.
13. Learned counsel for the appellants has not been able 'to point out any illegality, material irregularity in the impugned judgments and decrees of the Courts below. He has also not been able to controvert the above discussed arguments.
14. Resultantly, I see no force in these appeals, hence, the same are dismissed with no order as to costs.