Mst. KISHWAR SULTANA vs NIZAM-UD-DIN (DECEASED), through Legal Heirs S — 2023 CLC 1349 LAHORE-HIGH-COURT-LAHORE

Case information

Citation: 2023 CLC 1349 LAHORE-HIGH-COURT-LAHORE
Court: Lahore High Court
Year: 2023
Reporter: CLC
Parties: Mst. KISHWAR SULTANA vs NIZAM-UD-DIN (DECEASED), through Legal Heirs S
Subject matter: Criminal
Provisions referred to: S. 12; Civil Procedure Code

Fields are extracted from the reported citation and judgment text. Where a detail is not stated in the record, it is not shown.

Judgment text as reported

Mst. KISHWAR SULTANA VS NIZAM-UD-DIN (DECEASED), through Legal Heirs S.12(2) & O.IX, Rr.2, 3 & 4---Fraud, misrepresentation and want of jurisdiction---Second application filed under S.12(2) of the Civil Procedure Code, 1908, maintainability of ---Doctrine of election of remedies---Scope---Petitioner/lady moved application under S.12(2), C.P.C., which was dismissed on account of non-deposit of process fee; then after 11 months of said dismissal, she filed application for its restoration which was dismissed on the ground of limitation---Petitioner, instead of assailing order rejecting the restoration, moved second application under S.12(2), C.P.C.---Civil Court dismissed second application of the petitioner, which order was maintained by the Appellate Court---Held, that O.IX, R.4 of the Civil Procedure Code, 1908, provided remedies to an aggrieved person i.e. either to bring a fresh suit/application or apply for an order to set the dismissal aside---Once a litigant exhausted either of the remedies being unsuccessful, he was not permitted to have an attempt to go for second remedy---As under the doctrine of election of remedies once aggrieved person had acted and exhausted either of the two remedies he was deemed to have given up and forfeited his right to the other remedy; he could pursue the remedy which was initiated and exhausted first or earlier in point of time---Petitioner, in the present case, had elected and exhausted her remedy by filing restoration application against dismissal of first application under S. 12(2), C.P.C , therefore, her second application was not maintainable---Civil revision was dismissed in limine, in circumstances.

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