JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

( JUDICIAL DEPARTMENT)
I.C.A. No.255415 of 2018
Daan Khan (deceased) through legal heirs. Vs. Assistant Collector (Notified).

JUDGMENT
Date of hearing: - 23.01.2019
Appellants by: - Ch. Muhammad Amin Javed.
Respondent by: - Mr. Asif Mehmood Cheema, Additional Advocate
General.

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
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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
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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.
(MAMOON RASHID SHEIKH) (SHAHID WAHEED)
JUDGE JUDGE
*Saeed Akhtar* Approved for reporting.
JUDGE