SHAHID WAHEED, J:- The genesis of the dispute involved in this case is the order dated 26.07.1979 whereby the Notified Officer/respondent on the complaint under Sections 10/11 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, filed by one Muhammad Bashir, the general attorney of Muhammad Ishaq, cancelled the allotment of land measuring 82 Kanals 17 Marlas situated in Sikandarpura District Kasur made in favour of the predecessor of the present appellants namely Sher Khan vide mutation No.132 dated 22.04.1956 after having got confirmation of claim against Khata No.5657 of RL-II. The cancellation order dated 26.07.1979 was challenged before this Court through W.P.No.814-R of 1979. This petition was accepted vide order dated 25.10.1992 and the case was remanded to the respondent with a direction to take evidence regarding the appellants as legal heirs of Sher Khan even after summoning record from the Central Record Room. On remand the Notified Officer again cancelled the allotment vide order dated 27.07.1993. The appellants feeling aggrieved challenged the said cancellation before this Court through W.P.No.192-R of 1993. On 16.02.1998 neither party appeared when W.P.No.192-R of 1993 was called on for hearing, the learned Single Judge-in-Chamber dismissed the petition for want of prosecution. After a lapse of more than a decade the appellant moved an application i.e. C.M.No.01 of 2010 for recalling of order dated 16.02.1998. This application was dismissed being barred by time vide order dated 14.04.2010. Subsequently , the appellant brought a fresh constitutional petition i.e. W.P.No.104-R of 2010 questioning the order dated 27.07.1993 of the Notified Officer. This petition was dismissed on the ground of laches and also that the same being second writ petition was not maintainable. So, this appeal.
2. It is contended on behalf of the appellants that on the basis of principle settled in the cases of "Dr. M. A. Haseeb Khan ETC versus Sikandar Shaheen and 9 others " (PLD 1980 Supreme Court 139) and "Shamim Akhtar versus Muhammad Tufail" (2002 MLD 1716 ) the second constitutional petition was maintainable and the same could not be considered to be hit by principle of res judicata or laches.
3. The argument canvassed at the Bar is not well founded. It is an admitted fact that the appellants' earlier constitutional petition i.e. W.P.No.192-R of 1993 was dismissed for non-prosecution vide order dated 16.02.1998 under Order IX Rule 3 CPC. According to Rule 4 of Order IX CPC the appellant had two remedies, to wit, to bring a fresh constitutional petition or to apply for an order to set the dismissal aside. The appellant elected the second option and filed an application for revival of earlier petition i.e. W.P.No.192-R of 1993 but the same was dismissed vide order dated 14.04.2010 on the ground of limitation. Now a question arises as to whether after availing the remedy for restoration of earlier constitutional petition, the appellants could resort to the other remedy provided in Rule 4 of Order IX CPC. Answer to this question is available in a recent judgment handed down by the Hon'ble Supreme Court of Pakistan in the case of "Trading Corporation of Pakistan versus Devan Sugar Mills Limited and others" (PLD 2018 Supreme Court 828) wherein it has been held that "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". On the basis of said precedent the conclusion is that the appellants' second constitutional petition i.e. W.P.No.104-R of 2010, giving rise to instant appeal, was not competent.
4. The precedents cited by the appellants' counsel are inapt. In the cases of "Dr. M. A. Haseeb Khan ETC versus Sikandar Shaheen and 9 others " (PLD 1980 Supreme Court 139) and "Shamim Akhtar versus Muhammad Tufail" (2002 MLD 1716 ) it was held that when the first writ petition was not decided on merits but was dismissed for non-prosecution, for such reason alone bar could not be placed for filing a fresh writ petition. This is not the case here. Had the appellants not availed the remedy of filing an application of restoration of earlier constitutional petition, their second constitutional petition on the basis of principle settled in the above cited cases and under Order IX Rule 4 CPC would have been maintainable. In these attending circumstances, we are of the view that the order passed by the learned Single Judge-in-Chamber is valid and thus, interference therewith is uncalled for .
5. In the sequel, this appeal being devoid of any merit is dismissed.