MUHAMMAD RAZA QURESHI, J. Through this Civil Revision under section 115 of the Code of Civil Procedure,1908 ("C.P.C."), the Petitioner has challenged the Orders dated 21.10.2019, 20.11.2020, 07.09.2021 passed by learned Trial Court and Order dated 10.12.2021 passed by learned Appellate Court below.
2. The Petitioner being a disgruntled lady filed an Application under section 12(2), C.P.C. seeking setting aside of Judgment and Decree dated 02.01.1975, inter alia, contending that the Suit titled "Nizam-ud-Din etc. v. Kishwar Sultana" was illegally decreed by the learned Civil Judge, Kot Addu, District Muzaffargarh and the said Judgment and Decree is based upon fraud and misrepresentation suffering from want of jurisdiction. The Application under section 12(2), C.P.C., was instituted on 29.07.2016 before the learned Trial Court. The same remained pending before the learned Trial Court when through Order dated 09.07.2019, the Respondents were directed to be served through notices, registered post A.D and process fee was directed to be deposited within a period of three days.
3. On the next date of hearing, i.e. 18.09.2019 due to failure of the Petitioner to deposit the process fee, the Petitioner was directed to submit the same within the time stipulated by the said Order. On 21.10.2019 upon failure of the Petitioner to deposit the process fee, the learned Court below dismissed the Application of the Petitioner on account of non-deposit of process fee.
4. The Order dated 21.10.2019 was assailed through Application seeking restoration of Application.
The said Application was filed on 02.09.2020 before the learned Trial Court. However, the learned Trial Court through Order dated 20.11.2020 dismissed the Application for restoration filed by the Petitioner holding the same barred by 11 months.
5. The Petitioner instead of assailing the Order dated 20.11.2020 switched his remedy and opted to refile the Application under section 12(2), C.P.C. before the learned Trial Court. The second Application was filed by the Petitioner on 19.12.2020. Through Order dated 07.09.2021, the learned Trial Court after hearing preliminary arguments dismissed the second Application under section 12(2), C.P.C. filed by the Petitioner considering that upon dismissal of the first Application due to non-deposit of process fee and that the Petitioner failed to assail the previous dismissal Order, therefore, her second Application under section 12(2), C.P.C. was not maintainable and consequently, the same was dismissed.
6. The Petitioner instead of filing the Civil Revision challenged the said Order dated 07.09.2021 through an Appeal on 22.09.2021. Interestingly, the learned Appellate Court dismissed the Appeal filed by the Petitioner considering that the same was filed against dismissal of first Application under section 12(2), C.P.C., filed by the Petitioner. Hence, the instant Civil Revision.
7. Learned counsel for the Petitioner submits that the Impugned Order is perverse, illegal and unlawful as the first Order passed by the learned Trial Court dated 21.10.2019 was illegally passed and the learned Trial Court instead of dismissing the first Application of the Petitioner under section 12(2), C.P.C. should have granted an opportunity to the Petitioner to deposit the process fee.
According to learned counsel for the Petitioner, the Order dated 20.11.2020 was also illegal and unlawful as though the Application for restoration was filed after lapse of 11 months, but the learned Trial Court failed to advert that a period of 30 days has been prescribed by law only for restoration of the suits dismissed for non-prosecution, whereas, there is no period provided by law for restoration of Application and in this case, the case of the Petitioner fell under article 181 of the Limitation Act, 1908.
8. Additionally, learned counsel for the Petitioner has argued that rejection of second Application under section 12(2), C.P.C., tiled by the Petitioner was again illegally dismissed by the learned Trial Court and Appeal there against also unlawfully failed for the reason that the Appeal filed by the Petitioner was barred by 10 months. In support of his arguments, learned counsel has relied upon case titled "Messrs Nazim Polysack Ltd. and another v. Messrs Atlas Lease Ltd, through Branch Manager and 3 others" (2006 YLR 1245). According to learned counsel for the Petitioner, in the facts and circumstances, it was essential for the learned Trial Court to frame issues on the Application of the Petitioner and have decided the same on merits as the Petitioner's Application raised substantial questions of fraud and forgery and since fraud vitiates against solemn proceedings, therefore, no limitation actually runs against the judgment and decree obtained through fraud and misrepresentation. Learned counsel for the Petitioner in support of his arguments has relied upon case law reported as "Haleema Shuja v. Mst. Syeda Mehmooda Begum (deceased) through L.R. and others" (PLD 2021 Lahore 533), "Government of Sindh through the Chief Secretary and others v. Khalil Ahmad and others" (1994 SCMR 782) and "Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies" (PLD 1964 Supreme Court 97).
9. Lastly learned counsel for the Petitioner has argued that admittedly the Appeal filed by the Petitioner was not maintainable, but the learned Appellate Court could have converted the Appeal into Revision as the learned Appellate Court had ample power of conversion of one proceeding into another. In support of his contention, learned counsel has relied upon case reported as "Manzoor Hussain v. Shahid Ali and 11 others" (2007 CLC 1483), "Mst. Ghulam Sakeena v. Bashir Ahmad and others" (2000 CLC 334) and Judgment reported as "Syed Aakif Ali Shah v.
Muhammad Ijaz and others" (PLD 2021 Lahore 688). Learned counsel has argued that both the Courts below actually decided the fate of the Petitioner on technicities, whereas, technicality was a ploy to stultify course of justice as its use did not unredeemed the wrong and the right was left unenforced and Courts must be aware that too rigid adherence to procedural rule may inappropriately and unjustly deprive a party of his/her share.
10. Arguments heard, record perused. There is no cudgel to the chain of arguments and points of law raised by learned counsel for the Petitioner, but unfortunately, none of the propositions or law point applies in the facts and circumstances of the instant case. It is equally unfortunate that both the Courts below though reached to a right conclusion, but on wrong reasoning, which this Court can check and determine in exercise of its supervisory jurisdiction.
11. There is no cavil to the proposition that against Judgment and Decree dated 02.01.1975, the Petitioner was well within her right to file Application under section 12(2), C.P.C. It was the merit of said Application which, had the learned Trial Court proceeded on merits determined whether this Application is to be decided summarily or after framing of issues, but in the instant case, the matter never reached to that stage to proceed on merits of the said Application.
12. The core question that requires determination in the instant case is whether the second Application under section 12(2), C.P.C filed by the Petitioner was maintainable or not? It is an admitted position that through Order dated 21.10.2019 the learned Trial Court dismissed the Application for non-deposit of process fee. The said dismissal Order was passed in terms of Order IX, Rule 2, C.P.C. which is reproduced hereunder:- "2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs:- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charges (if any) chargeable for such service, the Court may make an order that the suit be dismissed:"
13. The said dismissal Order was assailed by the Petitioner through restoration of his Application under section 12(2), C.P.C. which was filed on 02.09.2020. Learned Trial Court through its Order dated 20.11.2020 dismissed the said Application being barred by time without going into the merits whether the said Order was legal or illegal. It is an admitted fact that the Petitioner elected not to challenge the said Order any further and opted to file her second Application under section 12(2), C.P.C., and therefore, fate of first Application attained finality and the Petitioner conceded to the result of said Application.
14. Upon failure, the Petitioner opted to file a second Application under section 12(2), C.P.C. which was permissible only subject to provision of Order IX, Rule 4, C.P.C., which is reproduced hereunder: "4. Plaintiff may bring fresh suit or Court may restore suit to file:- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
15. The provisions of Order IX, Rule 4, C.P.C., provide 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 exhausts either of remedies, being unsuccessful he is not permitted to have another bite at the cherry in 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 is deemed to have given up and forfeited his right to the other remedy. As in terms of law he could pursue the remedy which was initiated and exhausted first or earlier in point of time. Reliance in this regard is placed on "Tanveer Jamshed and another v. Raja Ghulam Haider" (1992 SCMR 917) and "Mst. Fehmida Begum v. Muhammad Khalid and another" (1992 SCMR 1908).
16. The interesting aspect of Order IX, Rule 4, C.P.C. is that this is one of very few exceptions envisaged by the provisions of C.P.C. that even in case of dismissal of a Suit/Application, the law equips the Plaintiff/Applicant to either initiate fresh proceedings or seek setting aside of order for dismissal under rule 2 ibid. Order of learned Trial Court dated 07.09.2021 holding that the second Application of the Petitioner under section 12(2), C.P.C. was not maintainable, (though on different reasoning) is correct. There is another aspect in the matter i.e. had Petitioner elected to opt first the remedy of refiling of the Application under section 12(2), C.P.C., the Petitioner could have only brought fresh Application only subject to limitation as envisaged by the provisions of Rule 4 of Order IX, C.P.C.
17. In the instant case the Petitioner once exhausted her remedy of applying the Trial Court to set the dismissal Order aside, her second Application under section 12(2), C.P.C. was bared as she had elected and exhausted her remedy.
18. An Application under section 12(2), C.P.C. is to be filed within a period of three years and in the instant case, the period of three years commenced from the date of knowledge i.e. 29.07.2016 when the Petitioner filed her first Application under section 12(2), C.P.C. The condition precedent for refiling the same was subject to limitation available to the Petitioner under Order IX, Rule 4, C.P.C. If the second suit or application is not filed within the period of limitation, then obviously such proceedings will be hit by provisions of section 3 of Limitation Act, 1908, which is reproduced hereunder: "3. Dismissal of suit, etc., instituted etc., after period of limitation:- Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence."
19. It must be borne in the mind that a litigant might have a right which was otherwise enforceable, loses the said right to the extent of its enforcement, if it is found by the Court of law that its case is hit by limitation. In such a situation, the right remains with the party, but such party cannot enforce it and if the litigant aggrieved did not approach the appropriate forum within the stipulated period, though the grievance remains alive but it cannot be redressed because if on one hand there was a right with the party which could have enforced against the other, but because of principal of limitation, the same right then vests in favour of opposite party.
20. Though the learned counsel for the Petitioner has argued, but the hurdles of limitation cannot be crossed under guise of any hardships or imagined inherent discretionary jurisdiction of the Court. Ignorance, negligence, mistake or hardship did not save limitation, nor does poverty of the parties and as held by the Hon'ble Supreme Court of Pakistan, the law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly. In this regard, reliance is placed upon cases titled "Khushi Muhammad through L.Rs and others v. Mst. Fazal Bibi and others" (PLD 2016 Supreme Court 872), "Sheikh Muhammad Saleem v. Faiz Ahmad" (PLD 2003 Supreme Court 628) and 'State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others" (2012 SCMR 280).
21. In the light of what has been declared above, this Court in exercise of its supervisory jurisdiction holds that (i) the Petitioner had elected and exhausted her remedy by filing restoration Application against dismissal of first Application under section 12(2), therefore, her second Application was not maintainable, (ii) even otherwise the second Application of the Petitioner was hit by limitation, (iii) the Impugned Order bated 10.12.2021 passed by the learned Appellate Court was based on wrong factual premise, therefore, same is not sustainable in the eyes of law, however, for reasoning hereinabove the Impugned Order dated 07.09.2021 passed by learned Trial Court is maintained.
22. Despite hectic efforts of worthy counsel, since the Impugned Order passed by learned Trial.
Court is not tainted with material illegality or irregularity, therefore, instant Civil Revision is declared to be meritless and consequently same is dismissed in limine.