IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT:  
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE MAQBOOL BAQAR 
 
CIVIL PETITION NO. 1965 OF 2019   
On appeal from the judgment dated passed 
03.05.2019 by the Lahore High Court Lahore in 
C.R.1339/2017) 
 
Jubilee General Insurance Co. Ltd, Karachi   …Petitioner(s) 
 
                              VERSUS 
 
 
Ravi Steel Company, Lahore                           …Respondent(s) 
 
 
For the petitioner(s): 
 
Mr. Hamid Khan, Sr. ASC a/w Barrister 
Rana Tariq, Legal Advisor 
 
For the respondent(s): 
 
Mr. Zaheer-ud-Din Babar, ASC 
 
Date of Hearing: 
09.10.2019 
 
 
JUDGMENT 
 
Mushir Alam, J.— Present Petitioner, Jubilee General Insurance 
Co. Limited, Karachi (hereinafter the ‘insurer’) have impugned the 
three (3) Member Bench judgement of Lahore High Court dated 
3.5.2019, which decided by majority of 2:1, in C.R. No.1339 of 
2017, that insurer, after exhausting ultimate remedy in review 
jurisdiction of Apex Court by re-agitating judgment of the learned 
Insurance Tribunal dated 03.10.2012 through application under 
section 12(2) CPC on a ground that even though defense of 
limitation was available but was not raised. Therefore, the 
application made is not maintainable and order dismissing 
application under section 12(2) CPC was passed by the learned 
trial Court was upheld through impugned judgment. 
CIVIL PETITION NO. 1965 OF 2019   
 
2
2. 
Facts in brief are that the respondent-Ravi Steel Company a 
property concern (hereinafter referred to as the ‘insured’)   insured 
consignment of two ‘furnace shell’ (herein after referred to as 
‘insured goods’) destined for Kazakhstan under “Marine Cargo 
Policy” dated 18.6.2005 (Ex-A-2), issued by the Petitioner-Insurer. 
The insured goods, en-route to Kazakhstan were damaged, the 
incident was reported promptly to the insurer on 5.9.2005 and the 
claim was lodged with insurer on 9.9.2005 (Ex-A-4). All documents 
as required by the insurer for processing the claim and assessing 
the damages were furnished through Ex-A-4 to Ex-A-6. To assess 
the loss/damage, ‘insurer’ appointed a Surveyor on 23.9.2005 (Ex-
A-8) and it is matter of record that based on surveyor’s report 
(which was not supplied though demanded by the assured nor 
produced in evidence), the insurer repudiated the claim on 
19.08.2008 (Ex-A-9), which prompted the insured to file a claim 
under section 122 of the Insurance Ordinance, 2000, (hereinafter 
referred to as Ordinance, 2000) for the recovery of sum assured 
along with liquidated damages in terms of Section 188 of the 
Ordinance, 2000, before the learned Insurance Tribunal, Lahore on 
11.11.2008. The claim was contested on merits, reply was filed, 
issues were framed, evidence was led by both the parties. Claim 
Application was allowed by the learned Insurance Tribunal on 
3.10.2012 for the sum assured together with liquidated damages 
as provided for under section 118 of the Ordinance, 2000 
“Calculated at the rate of five (5) percent on high base rate” till 
realization. Petitioner belatedly filed Regular First Appeal No.992 of 
2012 under Section 124 of the Ordinance, 2000 which was 
dismissed on 6.4.2016, which was challenged before this Court 
CIVIL PETITION NO. 1965 OF 2019   
 
3
through Civil Petition No.1287-L of 2016, which was dismissed on 
29.6.2016 and so also Civil Review Petition No.26-L of 2016 met 
the same fate vide order 24.01.2017.    
 
3.  
From the record it appears that in the intervening period 
when First Regular Appeal No.992 of 2012 was pending before the 
High Court, execution application was filed by the insured, which 
was resisted by the insurer, through Objection Petition, on the 
ground, inter alia, that the original Insurance Claim was time 
barred and few days later i.e. on 15.12.2012 chose to challenge the 
order of the Insurance Tribunal dated 03.10.2012 through yet 
another channel by invoking section 12(2) CPC on 15.12.2012 
(pages 103-116) on grounds inter-alia that: i) the claim was patently 
barred by time; and ii) want of jurisdiction, beside on merits. It is a 
matter of record that before the RFA No. 992 of 2012 could be 
decided, Objection Petition was dismissed on 20.5.2016, which 
order was not challenged any further and it attained finality. It is a 
matter of record that the application under section 12(2) CPC was 
kept pending, which fact was not disclosed before the learned High 
Court when the RFA No. 992 of 2012 was heard and dismissed on 
6.4.2016, such fact was also not disclosed in CPLA No. 1287-L of 
2016, which was dismissed on 29.6.2016, Civil Review Petition 
No.26-L of 2016 filed met the same fate vide order dated 
24.01.2017.  
 
4. 
After exhausting two remedies against the order of the 
Insurance Tribunal dated 3.10.2012, one right up to review 
jurisdiction of this Court, as noted above and second through 
channel of objection, and having failed throughout, the  Petitioner 
CIVIL PETITION NO. 1965 OF 2019   
 
4
resorted to challenge the very order of the Insurance Tribunal by 
resurrecting the application under section 12(2) CPC, which 
application was dismissed on merits by the learned Insurance 
Tribunal, vide order dated 8.3.2017 on the ground, inter alia, that 
Objection Petition on similar facts and grounds was dismissed by 
the learned Tribunal observing that “from the contents of 
application and from perusal of the record available before this 
Tribunal, the element of fraud, misrepresentation or want of 
jurisdiction in terms of section 12(2) CPC  are missing” vide order 
dated 08.03.2017 which order was maintained in Civil Revision 
No.3093 of 2016 by a majority of 2:1 by the learned Bench of the 
Lahore High Court vide judgement dated 3.5.2019 impugned 
before us. 
 
5. 
Mr. Hamid Khan, learned Sr. ASC for the petitioner 
contended that scope and parameters of Section 12(2) CPC are 
different. According to him, the petitioner in RFA No. 992 of 2012 
was non-suited on the ground of limitation. According to him 
original insurance claim of the respondent was also hit by 
limitation, which aspect of the matter was not considered by the 
learned Insurance Tribunal and so also by the bench of the Lahore 
High Court. According to learned ASC, the contingency to file 
insurance claim was reported on 9.9.2005, limitation to file 
insurance claim under Article  86 (b) of the Limitation Act, 1908 is 
three years from ‘the date of occurrence causing loss’, the Insurance 
Claim Application under section 122 of the Ordinance 2000, was 
filed on 11.11.2008,  which was delayed by two months. It was 
urged that it was duty of the Insurance Tribunal under Section 3 of 
the Limitation Act to dismiss the Claim Application outright. It was 
CIVIL PETITION NO. 1965 OF 2019   
 
5
argued that the learned Insurance Tribunal could not have 
assumed the jurisdiction to entertain a time barred claim. It was 
next urged that the insurer being bailee had no insurable interest.   
 
6. 
Learned Sr. ASC for the petitioner next urged that when 
multiple remedies against a judgement, decision or an order are 
available then exhausting one remedy, does not bar other legal 
remedies, which could always be pressed into in service one after 
the other irrespective of outcome of one remedy. According to him, 
reliance in the impugned judgment on the case cited as Trading 
Corporation of Pakistan vs. Devan Sugar Mills Limited & others (PLD 
2018 Supreme Court 828) is also misplaced. According to him, 
the case of Maharunisa & another vs. Ghulam Sughran & another 
(PLD 2016 Supreme Court 358), as relied upon by learned 
minority Judge was apt and to the point. It was, therefore, urged 
that petitioner was well within its right to challenge the order of 
learned Insurance Tribunal under Section 12 (2) CPC, which is 
separate, distinct and coextensive remedy could be invoked 
independently and successively to assail order of the Insurance 
Tribunal on different grounds of defence including limitation, 
which though available were not raised nor adjudicated in first set 
of defence at trial. 
 
7. 
Mr. Zaheer-ud-Din Babar, learned counsel appearing on 
behalf of the respondent ‘insured’, supports the impugned 
judgment. It was urged that, insurance claim was lodged with the 
insurer promptly, on 9.9.2006 (Ex-A-4). The claim was not refuted 
and surveyor was appointed by the insurer to assess the loss. 
According to him, it was the Petitioner/Insurer who delayed in 
CIVIL PETITION NO. 1965 OF 2019   
 
6
settlement of claim beyond 90 day as required under Section 118 
of the Ordinance, 2000 law and without providing any survey 
report, belatedly refuted the claim on 19.2.2008. It was urged that 
the Insurer was very much party to the proceedings before the 
Insurance Tribunal and has contested the claim up to Review 
jurisdiction of this august Court, and cannot collaterally challenge 
the very judgment dated 3.10.2012 of the Insurance Tribunal 
under section 12(2) CPC raising ground inter-alia of limitation. 
Learned ASC for the Respondent urged that the Petitioner kept the 
insurer on false hope and adopted misleading and deceptive 
conduct amounting to fraud that prevented the insured to 
approach the Insurance Tribunal earlier and that they cannot be 
allowed to take benefit of such misleading and deceptive conduct. 
It was contended that abandoning plea of limitation at trial also 
amounts to waiver, as under facts and circumstances, question of  
limitation was mixed question of facts. Had it been raised at the 
earliest opportunity at the trial, insurer would be in a position to 
contest and defend such a dishonest plea. It was argued that 
present case is fully covered on all fours by dicta laid down in a 
case reported as Trading Corporation of Pakistan (Supra), wherein 
this Court expounded ‘doctrine of election of remedy’ and concluded 
that when out of multiple available remedy one of the remedy is 
invoked and exhausted a party cannot be allowed to hop and shop 
another remedy which may be available. Therefore, impugned 
judgment by majority of 2:1 rightly dismissed the application 
under Section 12 (2) CPC, calls for no exception. 
 
8. 
Having heard the arguments and perused the record, 
attending the challenge of the learned counsel for the Petitioner on 
CIVIL PETITION NO. 1965 OF 2019   
 
7
the ground of limitation. It is a matter of record that contingency of 
damaged to the ‘insured goods’ occurred and was reported during 
the currency of insurance policy promptly to the insurer on 
9.9.2006. Insurer did not repudiate the insurance claim but, to 
assess the loss appointed the surveyor on 7.9.2006. (Ex-A-9)  In 
terms of Section 118 of the Insurance Ordinance, 2000 insurer is 
obligated to, scrutinize, settle and pay the insurance claim within a 
period of 90 days from the date on which payment becomes due, or 
when the beneficiary of insurance claim, complete papers for 
claiming the payment due under the insurance policy. It is evident 
from the record that all the documents, as required by the Insurer 
to scrutinize, settle and pay the insurance claim were provided by 
the Insurer on 13.10.2005 (Ex-A-5) and 26.9.2005 (Ex. A-6). It is a 
matter of record even that the Insurer, through letter dated 
23.10.2005 (Ex-A-13) alongwith detail of damage caused, informed 
the Insurer, that survey has been carried out by the surveyor yet 
the claim was not paid and the Petitioner, Insurer took its time to 
repudiate the claim as late as on 19.2.2008 i.e. more than two and 
a half year as against 90 days as required under section 118 of the 
Ordinance, 2000. Common law principle of “utmost good faith” 
(also recognized as ‘Uberrimae Fidei’) has received statutory 
recognition, under Section 75 of the Insurance Ordinance 2000; it 
means 
that 
every 
person 
who 
enters 
into 
a contract (of insurance) has a legal obligation to act with utmost 
good faith towards each other and parties (to insurance) contract 
are required to deal with each other in an honest and upright 
manner, disclose all material facts to each other and not to take 
unfair advantage over another person or to fulfill a promise to act, 
CIVIL PETITION NO. 1965 OF 2019   
 
8
even when some legal technicality is not fulfilled. (see section 76 
ibid also) Additionally, Insurer is obligated not to engage in a 
misleading or deceptive conduct that may put the insured or 
beneficiary of Insurance Policy into a disadvantageous position (see 
section 76 ibid). Even ambiguities in insurance policies are 
construed in favour of the insured (Section 77 ibid). 
9. 
It is true that limitation to file Insurance Claim arising under 
the Insurance Policy before the Insurance Tribunal is not provided 
for under the Ordinance, 2000, however three years period is 
provided for under Article 86 (b) of the Limitation Act, 1908 against 
‘the occurrence causing the loss’ on the policy of insurance “when 
the sum insured is payable after proof of the loss has been given to 
or received by the insure”. Indeed, in adversarial proceedings a 
litigant has to cross the barrier of limitation, before his rights are 
adjudicated. Like Order II Rule (2) CPC mandates the Plaintiff to 
include the whole claim and seek all reliefs in a suit to which he is 
entitled, where a plaintiff omits to sue in respect of the portion so 
omitted to claim any relief to which he may be entitled, he cannot, 
except by leave of the Court, afterwards sue for any relief so 
omitted. Cumulative effect of Order VI Rule 4 CPC read with Order 
VIII Rule 2 and other enabling provisions, by same stroke requires 
that the “defendant must raise” in written statement and 
specifically and particularly plead “all matters, which show that the 
suit not to be maintainable or that the transaction is either void or 
voidable in point in law, and all such grounds of defence as, if not 
raised, would  be likely to take opposite party by surprise or would 
raise issues of facts not arising out of the plaint as for instance 
fraud, limitation, release, payment, performance or facts showing 
CIVIL PETITION NO. 1965 OF 2019   
 
9
illegality.”(Order VIII Rule 2 CPC) plea of misrepresentation, fraud, 
breach of trust, willful default or undue influence, and in all other 
cases in which particulars may be necessary” (Order 6 R 4 ibid). 
These rules of prudence require both the plaintiff and defendant to 
plead all facts that may constitute cause of action for any relief and 
for the defendant which may constitute a defence to specifically 
refute any claim on merits as well raising specific defense 
denouncing claim on the assertions of fraud, limitation, release, 
payment, performance or facts showing illegality. Unless such 
particulars are specifically pleaded in the plaint or in written 
statement as a defence other party may it be plaintiff or defendant 
would have no opportunity to controvert the same, as neither the 
issue could be framed nor, evidence could ordinarily be allowed to 
be raised or led at trial or attended in further appeals or revisions 
as the case may be. Failure to raise such plea at the first 
opportunity (either in plaint or written statement as the case may 
be) to assert any right or claim any relief where such rights and 
relief is founded on such assertion or raising such plea as a 
defence to contest and or controvert any such claim may well 
amount and be successfully be defeated on doctrine of constructive 
res-judicata, in subsequent proceedings (see Explanation IV to 
section 11 CPC and  Mst. Kulsoom and 6 others vs. Mrs. Marium 
and 6 others (1988 CLC 870, para 5). 
 
10. 
In addition to doctrine of constructive res-judicata, doctrine of 
equitable estoppel having received statutory recognition under 
Article 114 of the Qanun-e-Shahadat Order, 1984 is gainfully 
applied in Insurance matter where the insurer uses the tool of 
surveyor, assessors and or investigators to investigate into claim of 
CIVIL PETITION NO. 1965 OF 2019   
 
10
loss and assessment of damages and induce the insured to believe 
that the claim will be paid and or settled once the survey, 
assessment or investigation into loss or damages is completed in 
due course and then belatedly, refutes the claim putting the 
insured at disadvantage to bring claim within limitation. In all 
fairness, in such circumstances the insurer may be equitably 
estopped from raising plea of limitation as a defense to the 
Insurance claim in Court of law. In case in hand plea of limitation 
was not raised in the first set of proceedings. (those interested may 
gainfully see In US jurisdiction where analogues provision contained 
in section 623 of California Evidence Code was propounded in a 
case Irwin vs. Department of Veteran’s Affairs, [498 U.S. 89,96 
(1990)] “An estoppel against a limitations defense usually ‘arises as 
a result of some conduct by the defendant, relied on by the plaintiff, 
which induces the belated filing of the action Spray, Gould & 
Bowers vs. Associated Int’l Ins. Co., [71 Cal. App.4th 1260, 1268 
(1999)]. Where an insurer is responsible for concealing the existence 
of an insured’s cause of action, Courts of this State have found that 
the insurer may be estopped from asserting statutory and 
contractual limitation periods, (there are plethora of authorities on 
the point including Vu,  [26 Cal.4th at 1152], Hydro-Mill Co., Inc. 
vs. Hayward Tilton & Rolapp Ins. Assoc., Inc., [115 Cal. App. 4th 
1145, 1165-66 (2004) and more recently from Indian jurisdiction  
National Insurance Co. Ltd vs. Hindustan Safety Glass Works Ltd. 
[2017] 5 SCC 776 paragraph 17 & 18).  
 
11. 
Since the Petitioner/defendant did not raise the bar of 
limitation, in the written statement, before the Insurance Tribunal 
at trial, which in the given circumstances is a mixed question of 
CIVIL PETITION NO. 1965 OF 2019   
 
11
fact and law and the same not having been raised, the 
Respondent/Plaintiff had no occasion to meet such challenge in 
earlier set of proceeding that culminated in his favour up to this 
Court in Review jurisdiction. Having failed to obtain any favourable 
order in the first complete cycle of remedy up to apex Court and 
having failed in its attempt in second challenge by way of 
objections to the execution, the Petitioner is not only estopped to 
seek annulment of judgment of Insurance Tribunal collaterally by 
adopting another or alternate channel of remedy to question the 
judgment of Insurance Tribunal on the ground of limitation by way 
of an application under section 12 (2) CPC, which ground, though 
available at trial was not raised could not be allowed to be raised in 
a collateral challenge. 
 
12. 
 Even otherwise, it is by now well entrenched in our 
jurisprudence that where multiple remedies are available against 
any order judgement and or decision than it is the prerogative of 
the suitor to elect and pursue one out of the several hierarchy or 
channel of remedies. A suiter having availed and exhausted one of 
the several hierarchy or channel of remedy, doctrine of constructive 
res-judicata, as discussed above debars him to adopt one after 
another hierarchy, course or channel of remedies. In case in hand 
Petitioner having challenged unsuccessfully the order of Insurance 
Tribunal up to this Court, then unsuccessfully availed second 
channel of remedy by challenging the Order of Insurance Tribunal 
through objection petition before the executing Court under 
section 47 CPC, which order too has attained finality and now 
invoked third hierarchy of remedy by way of application under 
section 12 (2) CPC. In somewhat similar circumstances, in the case 
CIVIL PETITION NO. 1965 OF 2019   
 
12
of Trading Corporation of Pakistan (Supra). It was held in para-8 at 
page-833 as follows: 
 
 “The moment suitor intends to commence any 
legal action to enforce any right and or invoke 
a remedy to set right a wrong or to vindicate 
an injury, he has to elect and or choose from 
amongst host of actions or remedies available 
under the law. The choice to initiate and 
pursue one out of host of available concurrent 
or co-existent proceeding/actions or remedy 
from a forum of competent jurisdiction vest 
with the suitor. Once choice is exercised and 
election is made then a suitor is prohibited 
from launching another proceeding to seek a 
relief or remedy contrary to what could be 
claimed  and or achieved  by adopting other 
proceeding/action and or remedy, which in 
legal parlance is recognized as doctrine of 
election, which doctrine is culled by the courts 
of law from the well-recognized principles of 
waiver and or abandonment of a known right, 
claim, privilege or relief as contained in Order 
II, rule (2) C.P.C., principles of estoppel as 
embodied in Article 114 of the Qanun-e-
Shahadat Order 1984 and principles of res-
judicata as articulated in section 11, C.P.C. 
and its explanations. Doctrine of election apply 
both to the original proceedings/action as well 
as to defenses and so also to challenge the 
outcome on culmination of such original 
proceedings/action, in the form of order or 
judgment/decree (for illustration it may be 
noted that multiple remedies are available 
against possible outcome in the form of an 
order/judgment/decree etc. emanating from 
proceedings of civil nature, which could be 
challenged/defended under Order IX, rule 13 
(if proceedings are ex-parte), section 47 
(objection to execution), section 114 (byway of 
review of an order), section 115 (revision), 
under Order XXI, rules 99 to 103 C.P.C. and  
section 96 C.P.C. (appeal against the order/ 
judgment) etc. Though there is no bar to 
concurrently invoke more than one remedy at 
the same time against an ex-parte order/ 
judgment. However, once election or choice 
from amongst two or more available remedy is 
made and exhausted, judgment debtor cannot 
ordinarily be permitted subsequent to venture 
into other concurrently or coexisting available 
remedies.”     
 
CIVIL PETITION NO. 1965 OF 2019   
 
13
13. 
Accordingly, no exception to the finding of the Bench of the 
High Court is called for. Instant petition is dismissed and leave to 
appeal is declined. The above are the reasons for our short order of 
even date, which reads as follow: 
 
“For reasons to be recorded later, this petition 
is dismissed and leave declined.”  
 
 
 
 
 
 
 
JUDGE 
 
 
 
 
 
ISLAMABAD 
9th October, 2019 
arshed/*                                Approved for Reporting 
JUDGE