Ch. Muhammad Masood Jahangir ,J.-The titled Revision Petition was initially dealt with by my two Hon'ble brothers, one of them, Amin-ud-Din Khan, J. not only held that application under section 12(2) of the Code, 1908 preferred by the same litigant during the pendency of his RFA was maintainable, rather the said application was allowed when not only R.F.A. had already been dismissed by this Court and also upheld in C.P. as well as Review by the apex Court, whereas the other , Ch. Muhammad Iqbal, J. adopted dissenting view while dismissing application under section 12(2) being not maintainable.
On account of difference of opinions between the two, the case was referred to me by the Hon'ble Chief Justice as a third Judge under Clause 26 of Letters Patent in order to render opinion as per Rule (5), Part-H, Chapter-4 of Vol: V of the Rules and Orders of the Lahore High Court, Lahore read with section 98 of the Code, 1908, however , the point of dissent was not reduced in the form of question/issue while referring it, but to me absence of formulation of the point of difference would not render the reference illegal and having gone through the verdicts of both my learned brothers, the specific points requiring determination would be; firstly whether a case covered by the mischief of section 12(2) of the Code ibid was made out, and secondly whether two parallel remedies can be launched and after exhausting one upto the level of the last Court, the second one can also be pressed into by the failing party and granted.
2. Undisputedly , the petition under section 122 of the Insurance Ordinance, 2000 preferred by respondent against the civil revisioner after settling issues, recording and appreciating the evidence, so led by the contesting parties, was culminated on 3rd October , 2012 in favour of the former by the learned Tribunal. The petitioner firstly assailed it on 3rd November , 2011 through Appeal under section 124(2) of the Ordinance ibid before this Court, and it was still sub judice, when after losing more than a year, the application under section 12(2) of the Code ibid was preferred, which was not activated, however , the Appeal of the petitioner was finally dismissed on the score of limitation vide judgment of 6th April, 2016 and it though was assailed through C.P. as well as Review before the apex Court, but both failed and the verdic t of this Court, whereby RFA was dismiss ed became final. Thereafter , the application under section 12(2) was agitated for its logical end, but resulted in divergent opinions, as observed supra.
As the file was received being fixed for actual date, learned counsel for the parties requested for right of audience, who exhausted themselves on the same lines, which they had already addressed when this petition was heard by my brothers, as such it will be unnecessary for the sake of repetition to reproduce their submissions here, however , Mr. Hamid Khan, Advocate, counsel for the petitioner in support of his arguments relied upon the judgments reported as R.V. Narayanaswami Chetti Vs. Soundarabajan & Co (AIR 1958 Madras 43), M/s.Raj Spinning Mills Vs. M/s. A.N.G.King Ltd. (AIR 1959 Punjab 45), Haji Moosa Haji Omer Vs. Ahmed Abdul Ghani and another (PLD 1968 Karachi 320), Mercantile Fire & General Insurance Co. of Pakistan Ltd. Vs. M/s. Imam & Imam Ltd. (1989 CLC 2117), Haji Habib & Co. Vs. Alpha Insurance Co. Ltd. (1992 CLC 1586 ), Muhammad Iqbal through duly authorized Attorney Vs. Muhammad Ahmed Ramzani and 2 others (2014 CLC 1392 ), Ahsan Ali and others Vs. District Judge and others (PLD 1969 SC 167), Mansab Ali Vs. Amir and 3 others (PLD 1971 SC 124), Hakim Muhammad Buta an another Vs. Habib Ahmad and others (PLD 1985 SC 153), Mst. Dilbar Hamid Vs. Dr. Ghulam Bheek Khan and others (1997 SCMR 610), Gatron (Industries) Limited Vs. Government of Pakistan and others (1999 SCMR 1072 ), Dil Mir Vs. Ghulam Muhammad and 2 others (PLD 2002 SC 403), Muhammad Sami Vs. Additional District Judge, Sardogha and 2 others (2007 SCMR 621), Almas Ahmad Fiaz Vs. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2006 SCMR 783), Mrs. Amina Bibi through General Attorney Vs. Nasrullah and others (2000 SCMR 296), Muhammad Hussain Vs. Mukhtar Ahmad (2006 SCMR 71), Mst. Sabiran Bibi and others Vs. Ahmed Khan and others (2008 SCMR 226), S.M.Sohail Vs. Mst. Sitara Kabir -ud- Din and others (PLD 2009 SC 397), Lahore Development Authority vs. Firdous Steel Mills
(Pvt) Ltd (2010 SCMR 1097 ) Allah Ditta Vs. Ahmed Ali Shah and others (2003 SCMR 1202 ), Sahabzadi Maharunisa and another Vs. Mst. Ghulam Sughran and another (PLD 2016 SC 358), Haji Farman Ullah Vs. Latif ur Rehman (2015 SCMR 1708 ), and T errance W illiams Vs. Pennsylvania (2016 SCMR 1561 ).
3. Emerging of available record affirms that firstly RFA No.992 of 2012 was preferred under section 124(2) of the Insurance Ordinance ibid and the para-1 1 being relevant is given below:-
11. The written statement to the suit was filed by the Appellant on 05.01.2009 and issues were framed by the Honble Insurance Tribunal on 22.01.2009. In the written statement, it was contended on behalf of the Appellant that the Respondent had no right to claim under the Policy as the risk in the cons ignment had passed on to the consignee under CIF sale with the Respondent paid in advance. The written statement also stated that the claim had been rejected on the basis of survey report, which attributed the damage to improper/inadequate lashing and securing of the cargo on the carrying trucks.
The grounds of attack to assail the impugned judgment in RFA agitated in para-14 from "A to T" for ready reference are also reproduced hereunder:- A). That the Impugned Judgment is liable to be set aside as it awards compensation to a complete stranger , who has suffered no harm whatsoever . This renders the Impugned Judgment unsafe and bad in law, and nullity in the eyes of law B). That the Impugned judgment is liable to be set aside as it ignores the basic principle of CIF contracts in which the risk passes to the buyer the moment the goods are dispatched to it by the seller where after the seller retains no risk in the goods and therefore becomes ineligible to claim under the insurance policy .
C). That the impugned judgment is liable to be set aside as it fails to take into account the basic point of limitation which renders the claim by the respondent barred by law, having been filed more than three years after the alleged cause of action.
D). That the Honble Insurance Tribunal erred in ignoring admitted position that notice to the carrier was a pre - requisite to a claim under the policy and that the Respondent had admittedly not given any such notice to the carriers, thereby failing in his duty to secure the legitimate interests of the Appellant insurance company and disentitling himself in the process to claim under the Policy .
E). That the impugned Judgment is liable to be set aside as it is based on incorrect appraisal and patent misreading of the facts on the one hand and unlawful and unjustifiable disregard of the evidence on the record on the other .
F). That the Honourable Insurance Tribun al erred in ignoring admitted evidence, including independent statement from the consignee of the cargo, showing the real cause of the damage being improper or inadequate lashing and securing of the consignment on the carrying trucks, which was duly excluded from the scope of the Policy under Institute Cargo Clauses Act.
G). That the Honourable Insurance Tribunal erred in concluding that the Appellant had not adduced any document in support of its contentions as the Appellant was under the bona fide and the legitimate impressing all along that the documents sought to be relied upon by the Appellant have been duly admitted by the Respondent and would in due course be brought on the record by virtue of the Appellant's application under Order XII Rules 2 and 4 CPC, which application was not decided at all by the Honourable Insurance Tribunal, Contrary to the law on the subject which requires all pending applications to be decided before the final disposal of a matter .
H). That the Honourable Insurance Tribunal erred in not deciding at all Appellant's application under Application under Order XII Rules 2 and 4 CPC in dismissing appellants application under Order XIII rule IV read with section 151 CPC and Order XIII rule 1 read with section 151 CPC. These errors proved fatal in this case as they seemingly led the Honourable Court to conclude that the Appellant had not adduced any evidence and also to completely disregard the evidence that was otherwise admitted at the evidence stage even by the respondent himself.
I). That the Honourable Trial Judge ignored the facts of the case pertaining to recordal of evidence, to the effect that since the Respondent admitted all the documents written by the parties, the Appellant's witness tendered all these documents without any objection. Due to procedural error however the documents were not shown as exhibited or numbered. It was this mistake that was sought to be rectified by the aforesaid applications, which applications were unjustly dismissed/not decided by the Honourable Trial Court. Without prejudice it is submitted that even if there was any human mistake in this regard it can be ascribed to the counsel's negligence and the Appellant should not be penalized for no fault of their own.
J). That the documents the admission of which was sought to be placed on record and which were sought to be numbered and exhibited formally , clearly demonstrated the true cause of the damage. While the Honourable Trial Court allowed a new document to be brought on record by the Respondent at an extremely late stage of the trial, holding that "the provisions of law are always meant to administer justice and not the technicalities", similar requests by the Appellant were unlawfully rejected on the ground that "the petitioner did not produce the same at the time of recording of evidence and now at such belated stage has filed applications one after the other". This obvious discrimination in the treatment of the two parties by itself renders the entire impugned judgment unsafe in law and liable to be set aside.
K). That the evidence allowed to be place d on record on the Respondent's later application was not even related to the issues in hand, whereas the applications by the Appellant were all very pertinent and would have not only helped the Honourable Trial Court in reaching a lawful decision but were actually vital to the just conclusion of the trial.
L). That the Honourable Trial Judge erred in law allowing the survey report to be brought on the record as not only was this report crucial to the real controversy in the matter , it being an electronic document, was actually admissible under the Electronic T ransactions Ordinance 2002.
M). That the Honourable Trial Judge appears to have based the Impugned Judgment on the flawed understanding of the law on burden of proof, as the apparent understanding displayed on the face of the Impugned Judgment is that it was for the Appellant to prove that the loss was not covered by the terms and conditions of the Policy , whereas the law on the point is that the Respondent, having made the claim and the application under the Policy was duty bound to prove how the loss was covered by such terms and conditions of the Policy . Not only is this the legal position, but also the facts being solely in the possession of the Respondent or his agents, it had to be the respondent alone who was bound under the law to prove each of his contentions.
N). In decreeing the Respondent's application as prayed', the Honourable Trial Court has effectively awarded the Respondent- a stranger - full insurance coverage amount when it was not even the Respondent's own case that the entire consignment had been destroyed. By all accounts, the damage was at the most worth US$100,000 and even that could not be proved by the Respondent in his evidence. To award the entire coverage amount therefore renders the Impugned Judgment clearly wrong and accordingly , liable to be struck down.
O). The Respondent also claimed cost of the application, along with counsel's professional fee. The Impugned Judgment in decreeing the application "as prayed" appears to have awarded the cost of the application, along with the counsel's professional fee, without even being addressed on these amounts and whether or not they may even be awarded under the law. The same goes against the norms and practices of the land and is a patent manifestation of the general apathy with which that the merits of the claim were considered, rather not considered, by the Honourable T rial Court.
P). That the award of liquidated damages by the Honourable Trial Judge is equally indefensible as, admittedly , the damage occurred due to improper or inadequate lashing and securing of the consignment on the carrying trucks.
There is therefore no question of any liquidated damages being awarded against the Appellant.
Q). The case was heard by various presiding officers at the Insurance Tribunal and the Honourable Judge who ultimately authored the Impugned Judgment had been in the office for just days when he passed the Impugned Judgment. The Honourable Judge was also under severe pressure to decide the case urgently as the Respondent had filed petitions in the Honourable Supreme Court for early disposal of this case, even though it was the Respondent himself who had been delay ing the proceedings all along. A decision under such intense pressure, with respect, is never a safe decision in law, particularly with various applications to decide and all the evidence to be considered. The Impugned Judgment is therefore liable to be set aside on this ground alone.
R). That the Honourable Trial Court failed to take into account the fact that the Respondent had filed the claim in the court and had acted all along with unclean hands and was therefore not entitled to any remedy .
S). That the Honourable Trial Court failed to take into account that no cause of action whatsoever had been shown by the Respondent against the Appellant.
T). The Appellant reserves the right to add more or further grounds during the pendency of these proceedings. and when the contents of the application under section 12(2) are gone through, those were found to be verbatim/analogous of the afore-noted para as well as grounds of RFA. There was no ground in this petition to claim that order dated 3rd October , 2012 had been procured through fraud, misrepresentation, collusiveness or any such other element, what to talk about the detail thereof, so these basic components of the provision to deal with the said application were absolutely missing since its inception. Without spec ifying the essential detail, the pleadings per se were not sufficient to declare that the order was obtained by practicing fraud. In this respect, the provisions contained in Order VI rule 4 of the Code, 1908 are worth perusal. To substantiate this aspect of the case, reliance is placed on Waheed Ullah Khan and 2 others versus Kalim Ullah and 3 others (PLD 1977 SC 75), wherein it has been held that:- In particular , rule 4 of Order VI of the Civil Procedure Code lays down that in all cases in which the party pleading relies any misrepresentation, fraud, breach of trust, willful default or undue influenc e and in all other cases in which particulars may be necessary beyond such as are in the form exemplified aforesaid, particulars (with dates and items fi necessary(1) shall be stated in the pleadings. In Bal Gangadhar Tilk and others Shrinivas Pandi and others (AIR 1915 PC 7), it was held that in pleadings, general allegations, however , strong may be, the words in which they are stated are insufficient even to amount to an averment of fraud of which any Court ought to take notice.
Hence, the petitioner failed to clearly spell out case of fraud and misrepresentation out of the above stated facts, whereas other quoted grounds were not enough to bring his case within the ambit of relevant provision. Mr. Hamid Khan, learned counsel for the petitioner on having been faced with the contents of application tabled by his client submitted that respondent being a consig ner had no right to claim amount as well as liquidated damages, who in spite of lacking locus standi to prefer his claim before learned Tribunal through cheating procured a favourable decree, the judgment under attack of application u/s 12(2) of the Code being tainted with misreading and non- reading of evidence was liable to be set aside for want of jurisdiction, was not well founded. The petition under section 12(2) of the Ordinance ibid had been contested on this score as well before the learned Tribunal, which were adhered to as per facts and law, but anything even having been rendered erroneously or illegally could not be assailed under Section 12(2) of the Code ibid, especially when the basic judgment discussed the entire evidence issue-wise in detail. In fact the grounds and submission pleaded/urged travelled beyond the scope of Section 12(2).
The application under this provision only lies if the order/judgment/decree was obtained by practicing fraud etc. In the present case, such ingredients are certainly missing, whereas Section 12(2) is not substitute of appeal, which also cannot be equated or treated at par to the remedy of review or revision. In the present case the entire controversy had already been culminated and become final. For the sake of arguments, if submissions of Mr. Hamid Khan are taken to be correct, it was, at the best, a case in which the judgment was obtained by false evidence or the learned Tribunal misread or misconstrued the available material. It is well established that the remedy provided under section 12(2) cannot be availed where it is alleged that the decree was obtained on the basis of perjured evidence. The philosophy behind this rule would be that all quest ions concerning credibility of the evidence produced in the case relate to that file and must be decided therein; otherwise there would be no finality to the litigation. To me application under section 12(2) would also not be maintainable merely on the ground that the claim was false or that lis was incompetent. It is also recognized principle that a decree cannot be challenged on merits, especially when the applicant was aware of the facts forming the appli cation, but did or did not assert those in the Court before whom the proceedings were finalized and subsequently by means of application under section 12(2), he is precluded from challenging the decree under this provision.
There is hell of difference in deciding a fact with wrong exercise of jurisdiction and for want of jurisdiction. The findings based on wrong exercise of jurisdiction could only be agitated under sections 115 or 96 of Civil Procedure Code, 1908 as the case may be. In case of Rehmat Ali Us. Additional District Judge (1988 SCJ 761), the august Supreme Court while dealing with the expression "without lawful and of no legal effect" held that the distinction has to be made in the judgment, which stood vitiated on account of "jurisdictional defect" and a judgment, which is tainted with irregular and improper exercise of jurisdiction and for correcting latter kind of deficiencies, the remedy available under law would be other than to have resorted to section 12(2) by invokin g ground of want of jurisdiction, rather only the findings for the Court/T ribunal having absolute, no jurisdiction could be brought before the same forum by means of application under section 12 (2) of the Code ibid. Here in this case, if the argument of Mr. Hamid Khan is considered to be correct that a consigner was not entitled to claim the amount as well as liquidated damages, was a fact, but was decided by the Court having jurisdiction to answer it on either side, hence for any illegality or material irregularity the jurisdiction vested to Court under the afore-noted provision could not be invoked. Mr. Hamid Khan when was confronted to the situation that had the Appeal preferred by his client been allowed, then what would be the fate of subsequent application, he was not in a position to wriggle out of it, which left no room to conclude that it was ploy and instrument to reopen the Pandora' s box. The scope of provision ibid was restricted and the applicant was only obliged to prove that fraud or misrepresentation had been committed by the adversary in connection with the proceedings, but the contents of his application as disclosed supra, are silent in this regard. In fact, petitioner in a way wanted to reopen the matter , which had been finally disposed of, as such it failed to prove his case being covered by the mischief of section 12(2) of the Code, ibid.
4. Adverting to the second point of difference of opinion, admittedly prior to filing of application under section 12(2) of the Code, the Appeal had already been preferred and after having remained unsuccessful, the other provided remedy could not be pressed. Although the petitioner at least had three concurrent remedies, i.e. appeal, review as well as application under section 12 (2) to assail the judgment of the learned Tribunal and one does not exclude the other , but it was open to him to choose either of the three and the moment one out of those (appeal) was availed, the doors of the Court to receive/entertain the second application u/s 12(2) were closed to decide both the remedies simultaneously or one after the other . If duplication is allowed, then there would be no end of litigation, which may also cause conflicting judgments and would be sheer abuse of process of law. The apex Court while dealing with a similar proposition in a reported as case Mrs. Amina Bibi vs. Nasrullah (2000 SCMR 296) had discussed the remedies and panorama available to the litigant for his redressal against ex parte decree and para 7 thereof being relevant is given below:- Where a suit has been decreed ex parte, various remedies are available to an aggrieved person for redress of his grievance. Firstly , an application under Order IX rule 13 CPC; secondly , an appeal from the ex parte decree under section 96 (2), CPC; a petition for review under section 114 read with Order XLVII and a civil suit on the ground of fraud and want of jurisdiction. The latter remedy is now substituted by section 12 (2) CPC. Here, the petitioner has exhausted her remedies by filing an application under Order IX rule 13 CPC and, therefore, on the same ground she cannot be permitted to re-agitate the same issue by means of a fresh petition under section 12 (2) CPC.
Thus the petitioner had no lawful excuse or justification to re-agitate the settled controversy again by resorting to another dif ferent remedy .
5. The apex Court recently rendered a comprehensive judgment and his lordship Mushir Alam, speaking for it in the case reported as Trading Corporation of Pakistan Vs. Devan Sugar Mills Limited and others (PLD 2018 SC 828) discussed the doctrine of election in depth and finally held that once the litigant opted to avail one out of the provided remedies, then it generally could not be permitted to initiate the other one. The relevant part of his lordship' s conclusion being applicable to the facts of the case in hand is reproduced hereunder:- ...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 proceedings/ actions or remedy from a forum of compe tent 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 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 reme dy at the same time against an ex-parte order/judgment. However , once election or choice from amongst two or more available remedy is made an exhausted, judgment debtor cannot ordinarily be permitted subsequently to venture into other concurrently or coexisting available remedies.
With more certainty it was further concluded that:- 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 cover 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 form it by fraud, but another to hold that such power of adjudication or jurisdiction 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 decisions, 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."
In view of the principle so set, the petitioner at the most could select one of the remedies provided by the Statute, but it was not his choice to avail/press one after the other .
6. The other salient feature of the case would be where special law provides its own mechanism and procedure to challenge certain actions under its schem e, recourse to general law for challenging such actions is not approved by the apex Court. See Major(Retd.) Pervez Iqbal vs. Muhammad Akram Almas and others (2017 SCMR 831) wherein it is concluded that all the available grounds could have been raised before the forum and hierarchy provided in special law and not in collateral proceedings u/s 12(2) of the Code, 1908.
7. The judgments relied upon by Mr. Hamid Khan, learned counsel for the petitioner are entirely distinguishable from the facts and circumstances of the instant case, wherein the Superior Courts have discussed the meanings of fraud, misrepresentation, rule of merger , suo moto powers of the Courts to deal with application under section 12(2), but none of the judgments cited above have come across to cope with situa tion that even after availing one of the provided remedies upto the level of honourable Supreme Court, the same party could maintain application u/s 12(2) for re-agitating the same grievances as a fresh cause of action.
8. For what has been discussed above, I am of the considered opinion that application under section 12(2) of the Code, 1908 was not maintainable and I agree with the opinion and observations of my learned brother Ch. Muhammad Iqbal, J., which now being view of majority would have decisive effect and the judgment will follow such opinion.