Law: Civil Procedure Code (V of 1908)

Section: 12(2),2,3,4

(a) Civil Procedure Code (V of 1908)--- ----S.12(2) O.IX, Rr.2, 3 4---Fraud, misrepresentation and want of jurisdiction---Second application filed under S.12(2) of the Civil Procedure Code, 1908, maintainability of ---Doctrine of election of remedies---Scope---Petitioner/lady moved application under S.12(2), C.P.C., which was dismissed on account of non-deposit of process fee; then after 11 months of said dismissal, she filed application for its restoration which was dismissed on the ground of limitation---Petitioner, instead of assailing order rejecting the restoration, moved second application under S.12(2), C.P.C.---Civil Court dismissed second application of the petitioner, which order was maintained by the Appellate Court---Held, that O.IX, R.4 of the Civil Procedure Code, 1908, provided 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 exhausted either of the remedies being unsuccessful, he was not permitted to have 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 was deemed to have given up and forfeited his right to the other remedy; he could pursue the remedy which was initiated and exhausted first or earlier in point of time---Petitioner, in the present case, had elected and exhausted her remedy by filing restoration application against dismissal of first application under S. 12(2), C.P.C , therefore, her second application was not maintainable---Civil revision was dismissed in limine, in circumstances. Tanveer Jamshed and another v. Raja Ghulam Haider 1992 SCMR 917 and Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908 ref. (b) Civil Procedure Code (V of 1908)--- ----O.IX, Rr. 2 4---Dismissal under O.IX, R.2 of the Civil Procedure Code, 1908---Remedy---Order IX, R.4 of Civil Procedure Code, 1908, is one of very few exceptions envisaged by the provisions of the C.P.C., which provides 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…

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