TARIQ MEHMOOD JAHANGIRI, J: Instant civil revision has been filed under section 115, CPC, 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 Rule 1&2 read with Section 151 CPC 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".
02. Succinctly stated, facts of the matter are that the petitioners/plaintiffs filed suit for declaration, cancellation of mutation alongwith all subsequent entries, mandatory and permanent injunction to the effect that petitioners are legal heirs of the one Mehboob Sultan (late), whereas the respondents No. 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) s/o Ghulam Muhammad (late) was real paternal uncle of Aziz (late) s/o Saida (late) s/o 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 No. 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 predecessorin-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 No. 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 No. 19 to 21.
3. Respondents No. 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 & 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 & decree dated 28.05.2018, passed by learned Additional District Judge, East-Islamabad and order & 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 & decree as well as judgment & 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 & 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.
05. 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 & decree dated 02.04.2018, under Order VII Rule 11, CPC; the impugned judgment & 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 & 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.
09. 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 Vs. Devan Sugar Mills Limited and others" (PLD 2018 Suprem e Court 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 Vs. Ravi Steel Company, Lahore" (PLD 2020 Supreme Court 324) and Mir Mujib-Ur-Rehman Muhammad Hassani Vs. 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 fail 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. Vs. Messrs Martrade Shipping and Transport and others" (PLD 2021 Supreme Court 373). Similarly, in the case of "Muhammad Yar (Deceased) through L.Rs. and others Vs. 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) entitles 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 the following judgments: i. "Muhammad Ali and others Vs. Province of Punjab and others" (2009 SCMR 1079), wherein it was held that: "No doubt Order VII, rule 13 does contemplate that rejection of a plaint shall not of its own force preclude the plaintiff from presenting a fresh plaint. Nevertheless the underlined words are important and clearly indicate that other provisions relating to avoiding multiplicity of litigation and attributing finality to adjudications could not be ignored. For instance if a plaint under Order VII, Rule 11 is rejected on the ground of the relief being undervalued or failure to affix proper court- fee stamps, a fresh plaint could always be presented upon rectifying the defects within the prescribed period of limitation. Nevertheless if the plaint is rejected after proper adjudication as to the non-existence of cause of action or upon the suit being barred by law the findings could operate as res judicata and would not enable the plaintiff to re-agitate the same question through filing a subsequent suit upon the same cause of action and seeking the same relief. In our humble view, therefore, the question whether a fresh plaint could be presented under Order VII, Rule 3 or otherwise would depend upon the nature of the order passed by the court in rejecting a plaint under Order VII, Rule 11. A somewhat similar view appears to have been taken by this Court in Muhammad Saleemullah and others v. Additional District Judge, Gujranwala and others PLD 2005 SC 511." ii. "Aziz Ahmad and others Vs. Mst. Hajran Bibi and another" (1987 SCMR 527), wherein it was held that: "The mere fact that in the first suit the appellants did not seek relief in respect of the property at Faisalabad would not make the cause of action in the second suit a different one. In fact by not seeking any relief in respect of the property situate in Faisalabad in the suit filed at Bahawalpur the appellants would be taken to have given up their claim to the said property, and the second suit would be hit by the bar contained in rule 2(2) of Order II of the Code of Civil Procedure." iii. "Jubilee General Insurance Co. Ltd., Karachi Vs. Ravi Steel Company, Lahore" (PLD 2020 Supreme Court 324), wherein it was held that: "...these rules of prudence require both the plaintiff and defendant to plead all facts that may constitute cause of action for any relief and for the defendant which may constitute a defence to specifically refute any claim on merits as well raising specific defense denouncing claim on the assertions of fraud, limitation, release, payment, performance or facts showing illegality. Unless such particulars are specifically pleaded in the plaint or in written statement as a defence other party may it be plaintiff or defendant would have no opportunity to controvert the same, as neither the issue could be framed nor, evidence could ordinarily be allowed to be raised or led at trial or attended in further appeals or revisions as the case may be. Failure to raise such plea at the first opportunity (either in plaint or written statement as the case may be) to assert any right or claim any relief where such rights and relief is founded on such assertion or raising such plea as a defence to contest and or controvert any such claim may well amount and be successfully be defeated on doctrine of constructive res judicata, in subsequent proceedings (see Explanation IV to section 11 C.P.C. and Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others (1988 CLC 870, para 5)." It has also been laid down in the same judgment that "it is by now well entrenched in our jurisprudence that where multiple remedies are available against any order judgment and or decision then it is the prerogative of the suitor to elect and pursue one out of the several hierarchy or channel of remedies. A suiter having availed and exhausted one of the several hierarchy or channel of remedy, doctrine of constructive res judicata, as discussed above debars him to adopt one after another hierarchy, course or channel of remedies."
20. Furthermore, there are concurrent findings of both the learned Courts below against the petitioners. In case of concurrent findings of the Courts below, scope of the revision petition becomes very limited. The petitioners have failed to point out any misreading or non-reading of the evidence. In this regard, guidelines have been laid down by the Hon'ble Supreme Court of Pakistan for exercise of revisional jurisdiction in the following cases: i. "Mst. Shumal Begum Vs. Mst. Gulzar Begum and 3 others" (1994 SCMR 818), wherein it was held that: "The revisional jurisdiction under section 115, C.P.C. exercised by the High Court is attracted only in cases where the lower Court has exercised a jurisdiction not vested, in it by law or it has failed to exercise jurisdiction so vested in it or while exercising jurisdiction the Courts below have acted illegally or with material irregularity. It is, therefore, quite clear that the High Court while exercising revisional jurisdiction cannot disturb the finding of fact arrived at by the lower Court in proper exercise of the jurisdiction vested in the Court and upon consideration of the relevant evidence on record. The finding of fact by the lower Court could only be disturbed in revisional jurisdiction by the High Court, if it is found to be fanciful, perverse or it has been arrived at by a process which had rendered the exercise of the jurisdiction vested in the Court defective. In case of misreading of evidence or non consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction. The fact that the High Court on reappraisal of the evidence, find that the finding of fact recorded by, the trial Court is preferable to the finding of fact recorded by the first appellate Court cannot justify interference with such finding in exercise of revisional jurisdiction by the High Court. The first appellate Court is the final Court in so far the findings of facts are concerned and such finding can only be disturbed in revisional jurisdiction by the High Court if it is arrived at by the first appellate Court either by misreading the evidence or through perverse appreciation of evidence on record, or due non- consideration of legal evidence on record. From the above quoted passage of the impugned judgment, it is quite clear that the findings of facts recorded by the first appellate Court, was reversed by the High Court on reappraisal of the evidence and by substituting its own opinion for that of the first appellate Court without referring to any defect in the process of reasoning adopted by the first appellate Court. This, in our opinion, was not permissible within the scope of the revisional jurisdiction exercised by the High Court in the case." ii. "Noor Muhammad and others Vs. Mst. Azmat-E-Bibi" (2012 SCMR 1373), wherein it was held that: "Jurisdiction of the High Court under S.115, C.P.C., was narrower and concurrent findings of fact could not be disturbed in revisional jurisdiction unless courts below while recording findings of fact had either misread the evidence or had ignored any material piece of evidence or those were perverse and reflected some jurisdictional error." iii. "Malik Muhammad Khaqan Vs. Trustees of the Port of Karachi (KPT) and another" (2008 SCMR 428), wherein it was held that: "This Court has consistently held that when finding of the facts of the trial and Appellate Courts are contrary to the evidence and material on record or are against law when the revisional Court would have jurisdiction to rectify the same so as to bring the findings in consonance with the evidence on record or to remove the illegality surfacing from the judgment. Similarly if the revisional Court finds any violation of provision of law by a Court or ignorance of law then it is vested with the authority to set aside the concurrent findings and substitute its own findings."
21. I have carefully examined the impugned order and decree dated 02.04.2018, passed by learned Civil Judge 1st Class, East-Islamabad and judgment & decree dated 28.05.2018, passed by learned Additional District Judge, East-Islamabad, and find that learned Courts below have assigned valid reasons for reaching their conclusions which are duly supported by law and facts.
22. I find no reason, basis or justification to interfere with the matter, not persuaded to take a view different from the one taken by learned lower Courts.
23. The petitioners have failed to point out as to how the impugned order and decree dated 02.04.2018, passed by learned Civil Judge 1st Class, East-Islamabad and judgment & decree dated 28.05.2018, passed by learned Additional District Judge, East-Islamabad, were the consequence of an error of law or without jurisdiction or in excess of jurisdiction.
24. In view of the above prospective, instant civil revision has no merits and the same is dismissed.
25. All pending C.Ms are disposed of accordingly.