Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2026 MLD 856. In this matter between Mst. Safia Khanum and Additional District Judge-II, East, IslamabadHonorable Justice Tariq Mehmood JahangiriShahid Munir,Ch. Khanzada and Nasir Iqbal Khan, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

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2026 M L D 856 [Islamabad] Before Tariq Mehmood Jahangiri, J Mst. Safia Khanum and 7 others---Petitioners Versus Additional District Judge-II, East, Islamabad and 20 others---Respondents Civil Revision No. 06 of 2019, decided on 3rd June, 2025. (a) Civil Procedure Code (V of 1908) --- ----O.II, R.2, O.VII, R, 11, O.XXIII, R.1 & Ss.12(1), 115 ---Qanun-e-Shahadat (10 of 1984), Art.114---Withdrawal of suit---Fresh suit on same cause of action, filing of---Absence of express leave by Trial Court---Effect---Maintainability of subsequent suit---Revisional jurisdiction of the High Court---Concurrent findings, interference in---The petitioners instituted a suit for declaration, cancellation and rectification of mutations asserting that they were the legal heirs of the deceased and that respondents Nos. 2 to 18 had no lawful concern with the disputed inheritance---According to the plaint, portions of the property had wrongly remained or later been entered in predecessor-in-interest of respondents Nos.2 to 18 despite the devolution of inheritance through earlier mutations, and after about seventy years the respondents got the old mutation rectified through revenue authorities, whereupon the respondents moved an application under O. VII R.11, C.P.C.---Trial Court rejected the plaint and the appeal was dismissed---Petitioners then filed the present civil revision---The core issue for determination was whether, in the facts pleaded, the plaint was legally liable to rejection under O. VII R. 11, C.P.C? ---Held: As the second suit was dismissed for non-prosecution and the petition for permission to file afresh was declined, so the petitioners were precluded from filing the third suit---Moreover, in case of concurrent findings of courts below scope of revision petition became very limited---Petitioners failed to point out any misreading or non-reading of the evidence --- Present civil revision had no merit, and was dismissed, in circumstances. Khawaja Bashir Ahmed and Sons Pvt. Ltd., v. Messrs Martrade Shipping and Transport and others PLD 2021 SC 373; Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others 2013 SCMR 464; Muhammad Ali and others v. Province of Punjab and others 2009 SCMR 1079; Aziz Muhammad and others v. Mst. Hajran Bibi and another 1987 SCMR 527; Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore PLD 2020 SC 324; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 and Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 rel. (b) Civil Procedure Code (V of 1908) --- ----O.XXIII, R.1---Withdrawal of suit with permission to file a fresh suit---Grounds for allowing the plaintiff to institute fresh suit --- Scope --- Duty of court to pass formal order stated --- There are certain conditions for withdrawal of the suit --- First is that, if the Court is satisfied that a suit must fail by reason of some formal defect and second is that, there are other sufficient grounds for allowing plaintiff to institute a fresh suit for the subject-matter of a suit or a part of a claim --- It may, on such terms as it thinks fit, grant permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of claim --- Without passing of formal order for permission to file fresh suit by the learned Trial Court in terms of O. XXIII R. 1(2)(b) C.P.C., it cannot be presumed mechanically that permission to file fresh suit has been granted by mere mentioning in the petition filed for withdrawal of suit---Court is required to pass specific order granting permission to the plaintiff for filing the fresh suit. (c) Remedy--- ----Election, doctrine of---Once choice is exercised and election is made then such party is precluded from launching another proceedings to seek a relief or remedy contrary to what would be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as doctrine of election . Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828; Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore PLD 2020 SC 324 and Mir Mujib-ur-Rehman Muhammad Hassani v. Returning Officer, PB-41 Washuk and others PLD 2020 SC 718 rel. Shahid Munir for Petitioners. Ch. Khanzada and Nasir Iqbal Khan for Respondents Nos. 2 to 18. Judgment Tariq Mehmood Jahangiri, J.---Instant civil revision has been filed under section 115, C.P.C., with the following prayer; "In the circumstances, it is, therefore, most humbly prayed that the Revision Petition may kindly be accepted / allowed, set aside the impugned order/judgment and decree dated 28-05-2018 passed by the respondent No. 1 and the judgment and decree dated 02-04-2018, restore the suit/plaint as well as the Application U/O XXXIX Rules 1 and 2 read with Section 151 C.P.C. of the petitioners and to remand the case to the learned trial Court to decide the same afresh on merits in accordance with law in the interest of justice. Any other relief, which this Honourable Court may deems fit and proper, may also be granted". 2. Succinctly stated, facts of the matter are that the petitioners/plaintiffs filed suit for declaration, cancellation of mutation along with all subsequent entries, mandatory and permanent injunction to the effect that petitioners are legal heirs of the one Mehboob Sultan (late), whereas the respondents Nos. 2 to 18 are legal heirs of Sardar (late) and they have no concern whatsoever with the inheritance of the petitioners because they have no relationship with the petitioners. The predecessor-in-interest of the petitioners name Fatta (late) son of Ghulam Muhammad (late) was real paternal uncle of Aziz (late) son of Saida (late) son of Ghulam Muhammad (late) gave 1/2 share of their landed property in the revenue estate of village Mouza Pined Bagwal to predecessor-in-interest of the respondents Nos. 2 to 19 namely Sardar vide mutation No. 1670 of 1940 only up to the extent of khewats mentioned in the said mutation during their lifetime without any relationship. Another Predecessor-in-interest of the petitioners namely Mst. Sahib Neeshan (late) also died issueless after the death of her husband, some share of her inheritance was legally devolved upon her legal heirs through inheritance mutation No. 1950 of the year 1946 in the name of predecessor-in-interest of the petitioners namely Fatta (late). Maqsood (late), Mehboob Sultan (late) and the remaining share was illegally mutated in the name of the above said Sardar (late), who had no relationship with Mst. Sahib Neeshan (late). Lateron Fatta who was issueless sold his respective share to one Sajawal. Maqsood also died issueless, whose inherited share of land through above said mutation was devolved upon his real brother namely Mehboob Sultan, so Sardar was an irrelevant person and not entitled for any legacy of Mst. Sahib Neeshan. After the lapse of more than 70 years, the respondents Nos. 2 to 18 illegally and secretly filed an application before the concerned revenue officials for correction, rectification of mutation No. 1670, which was Illegally accepted as a result of which a rectification mutation No. 8225 of 2014 was illegally and fraudulently got sanctioned in connivance with the revenue officials/respondents Nos. 19 to 21. 3. Respondents Nos. 2 to 18 / defendants appeared before learned trial Court and thereafter filed an application under Order VII Rule 11, C.P.C. seeking dismissal of the plaint / suit filed by the petitioners. Thereafter, the petitioners filed written reply and the learned trial Court rejected the plaint of the suit vide order and decree dated 02.04.2018. Being aggrieved, the petitioners filed an appeal against the said order before respondent No. 1, which was also dismissed vide impugned judgment and decree dated 28.05.2018, hence the instant civil revision. 4. Learned counsel for the petitioners, inter alia, contends that the impugned judgment and decree dated 28.05.2018, passed by learned Additional District Judge, East-Islamabad and order and decree dated 02.04.2018, passed by learned Civil Judge 1st Class, East-Islamabad are against the law and facts of the case; bare reading of the Impugned order and decree as well as judgment and decree reveals that the learned Courts below miserably failed to realize, understand and consider the real actual controversy amongst the parties; both the impugned order / judgment and decrees passed by learned Courts below are patently illegal and liable to set-aside; learned Courts below failed to apply judicial mind to properly exercise jurisdiction while passing the impugned order / judgment and decrees; the version of the petitioners that their rights are attached to the suit land, has not been given due consideration and the matter has been decided merely on the basis of technicalities; the Impugned order / judgment and decrees have been passed in hasty and harsh manners which will result into a great miscarriage of justice; learned Courts below committed material irregularities while passing the impugned order / judgment and decrees, hence liable to be set aside. 5. Conversely, learned counsel for contesting respondents controverted the arguments advanced by learned counsel for the petitioners and has stated that the plaint of suit filed by the petitioners was rightly rejected vide order and decree dated 02.04.2018, under Order VII Rule 11, C.P.C.; the impugned High Court judgment and decree dated 28.05.2018, has been passed in accordance with law and facts of the case; there is no illegality or Irregularity in the impugned order and decree as well as judgment and decree and the same have been passed in a judicious manner and has prayed to dismiss the instant civil revision. 6. Arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance. 7. Admittedly, in the first round of litigation, the predecessor-in-interest of the petitioners namely Mehboob Sultan (late) filed a suit for declaration and cancellation of basic mutation number 1670/1940 in the year 1991, the suit was contested which was dismissed vide judgment and decree dated 14.01.2002, the said judgment was upheld in appeal on 16.02.2004. Thereafter, the petitioner filed revision which was also dismissed vide judgment dated 08.06.2015, by this Court. 8. The second suit was filed regarding rectification of mutation No. 1670/1940, by the petitioners for the same cause of action on 13.06.2014, which was dismissed in default on 15.10.2016. The petitioner filed an application for restoration of the same along with an application for withdrawal of suit but the petition was dismissed, and no permission was granted to file a fresh suit. 9. The petitioners filed third suit for declaration, cancellation of mutation number 8225/2014, which was issued as a result of correction of mutation number 1670/1940, regarding which the first suit, appeal and revision petition filed by the petitioners in relation thereto, were dismissed from the Civil Court up to the High Court. 10. The correction in mutation No. 1670 dated 27.04.1940, was made vide order dated 01.04.2014, passed by Additional Deputy Commissioner Revenue / District Collector, ICT, Islamabad. Being aggrieved, the petitioners filed review before Additional Deputy Commissioner Revenue / District Collector, ICT, Islamabad on 01.07.2014, praying that the mutation No. 8225 dated 03.04.2014, be cancelled by seeking review of order dated 01.04.2014. 11. The review petition filed by the petitioners was dismissed by the Court of Additional Deputy Commissioner Revenue /District Collector, ICT, Islamabad, vide order dated 10.11.2015. It is strange that leaving those proceedings in the way, the petitioners instituted civil suit. 12. It is trite law that the moment a party to lis intended to commence any legal proceedings to enforce any right and or invoke a remedy to set right a wrong or to vindicate an injury, he had 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 proceedings/actions or remedy from a forum of competent jurisdiction vested with that party but when once choice was exercised and election was made then such party is precluded from launching another proceedings to seek a relief or remedy contrary to what would be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as "doctrine of election". The edifice of "doctrine of election" is structured and founded 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 of "C.P.C.", principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order, 1984 and principles of res-judicata as enshrined in Section 11 of "C.P.C.". To understand the object and scope of "doctrine of election" one can seek guidance from the principles laid down by the Hon'ble Supreme Court of Pakistan in the case of "Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others" (PLD 2018 SC 828). The relevant extract from the same is reproduced below:- "8........ 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 to defences 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 (by way 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 subsequently to venture into other concurrently or coexisting available remedies. In a situation where an application under Order IX, Rule 13, C.P.C. and also an application under section 12(2), C.P.C. seeking setting aside of an ex-parte judgment before the same Court and so also an appeal is filed against an ex-parte judgment before higher forum, all aimed at seeking substantially similar if not identical relief of annulment or setting aside of ex-parte order/judgment. Court generally gives such suitor choice to elect one of the many remedies concurrently invoked against one and same ex-parte order/judgment, as multiple and simultaneous proceedings may be hit by principle of res-subjudice (section 10, C.P.C.) and or where one of the proceeding is taken to its logical conclusion then other pending proceeding for the similar relief may be hit by principles of res-judicata. Giving choice to elect remedy from amongst several coexistent and or concurrent remedies does not frustrate or deny right of a person to choose any remedy, which best suits under the given circumstances but to prevent recourse to multiple or successive redressal of a singular wrong or impugned action before the competent forum/court of original and or appellate jurisdiction, such rule of prudence has been evolved by courts of law to curb multiplicity of proceedings. As long as a party does not avail of the remedy before a Court of competent jurisdiction all such remedies remain open to be invoked. Once the election is made then the party generally, cannot be allowed to hop over and shop for one after another coexistent remedies. In an illustrative case this court in the case of Mst. Fehmida Begum v. Muhammad Khalid and others (1992 SCMR 1908) encapsulated the doctrine of election as follows: However, it is one thing to concede a power to the statutory forum to recall an order obtained from it by fraud, but another to hold that such power of adjudication or jurisdiction is exclusive so as to hold that a suit filed in a civil Court of general jurisdiction is barred. I am therefore In agreement with my brother that a stranger to the proceedings, in a case of this nature has two remedies open to him. He can either go to the special forum with an application to recall or review the order, or file a separate suit. Once he acts to invoke either of the remedies. he will, on the general principles to avoid a conflict of decision ultimately before the higher appellate forums, be deemed to have given up and forfeited his right to the other remedy, unless as held in Mir Salah-ud-Din v. Qazi Zaheer-ud-Din PLD 1988 SC 221, the order passed by the hierarchy of forums under the Sindh Rented Premises Ordinance, leaves scope for approaching the Civil Court. 9. In the case of Behar State Co-operative Marketing Union Ltd. v. Uma Shankar Sharan and another [(1992) 4 Supreme Court Cases 196] Indian Supreme Court confronted with somewhat identical situation as to availability of plurality of remedies under a statute in paragraph No.6 at page 199 concluded as follows: "6. Validity of plural remedies, if available under the law, cannot be doubted. If any standard book on the subject is examined, it will be found that the debate is directed to the application of the principle of election, where two or more remedies are available to a person. Even if the two remedies happen to be inconsistent, they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly." The above principles were further reiterated in the recent judgments reported as "Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore" (PLD 2020 SC 324) and Mir Mujib-Ur-Rehman Muhammad Hassani v. Returning Officer, PB-41 Washuk and others (PLD 2020 Supreme Court 718). 13. As the second suit was dismissed for non-prosecution and the petition for permission to file afresh was declined, so the petitioners were precluded from filing the third suit. 14. For the convenience, Order XXIII Rule 1 of Code of Civil Procedure is reproduced as under: 1. "Withdrawal of suit or abandonment of part of claim. (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the Court is satisfied- (a) that a suit must fall by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, It may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others." 15. There are certain conditions for withdrawal of the suit. First is that, if the Court is satisfied that a suit must fail by reason of some formal defect and second is that, there are other sufficient grounds for allowing plaintiff to institute a fresh suit for the subject-matter of a suit or a part of a claim. It may, on such terms as it thinks fit, grant permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of claim. Without passing of formal order for permission to file fresh suit by the learned trial Court in terms of Order XXIII Rule 1(2)(b), C.P.C., it cannot be presumed mechanically that permission to file fresh suit has been granted by mere mentioning in the petition filed for withdrawal of suit; learned Court is required to pass specific order granting permission to the plaintiff for filing the fresh suit after being satisfied in terms of order supra. 16. It is categorically mentioned in the Order XXIII Rule 1(3) C.P.C. that if the suit is withdrawn without the permission referred to in sub-rule (2), the plaintiffs shall be liable for such costs as a Court may award and shall be precluded from instituting any fresh suit. 17. It is also provided in section 12(1), C.P.C. that: "12(1). Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies. 18. Admittedly, in the instant case no such permission was granted in terms of Order XXIII Rule 1(2), C.P.C., so the petitioners were precluded from bringing a fresh suit under Order XXIII Rule 1(3) and section 12(1), C.P.C. Reliance in this regard is placed on law laid down by the Hon'ble Supreme Court of Pakistan in a case titled as "Khawaja Bashir Ahmed and Sons (Pvt.) Ltd. v. Messrs Martrade Shipping and Transport and others" (PLD 2021 SC 373). Similarly, in the case of "Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others" (2013 SCMR 464), the Hon'ble Supreme Court of Pakistan while interpreting Order XXIII, Rule 1, C.P.C. held that: "From the clear language of the above, it is vivid and manifest that the noted rule mainly comprises of two parts; sub-rule (1) entities the plaintiff of a case to withdraw his suit and/or abandon his claim or a part thereof, against all or any one of the defendants, at any stage of the proceeding and this is his absolute privilege and prerogative (Note: except in certain cases where a decree has been passed by the Court such as in the cases pertaining to the partition of the Immovable property etc.). And where the plaintiff has exercised his noted privilege he shall be precluded from instituting a fresh suit on the basis of the same cause of action qua the same subject matter and against the same defendant(s) and this bar is absolute and conclusive, which is so visible from the mandate of sub-rule (3). However, sub-rule (2) (a)(b) is/are a kind of an exception to the sub-rules (1) and (3), in that, where a plaintiff wants to file a fresh suit after the withdrawal of his pending suit on the basis of the same cause of action about the same subject matter and the same defendant(s), he shall then be obliged to seek the permission of the Court in that regard; however such permission shall not be granted as a matter of right or as a matter of course/routine, rather the judicial conscious of the Court should be satisfied that, if the permission is not given the said suit shall fail on account of any formal defect, (Note: for the present what is a 'formal defect' is not a moot point therefore, this aspect is not being touched herein) or that there are other sufficient grounds for allowing the plaintiff to withdraw the suit with a permission to institute a fresh suit; in respect of "sufficient grounds" no hard and fast criteria can be laid down and it depends upon the facts of each case, whether a case in that regard is made out or not." 19. Reliance could also be place on the dictums of…

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