Civil law

--- O. XXIII, R. 1 --- Withdrawal of suit --- Suit “dismissed as withdrawn” --- Effect --- Where an earlier suit was “dismissed as withdrawn” and was withdrawn without seeking permission of the Court to institute a fresh suit on the same cause of action, such withdrawal is a withdrawal simpliciter and squarely attracts the bar contained in Order XXIII Rule 1(3), CPC, thereby precluding the institution of a subsequent suit in respect of the same subject-matter.

--- S. 48 --- Limitation Act (IX of 1908), Art. 181 --- Execution of decree --- Limitation --- Principle of merger --- Scope --- The principle of merger holds that when a Superior Court passes a judgment in appeal, irrespective of the fact whether it was set aside or modified or affirmed, the decree of the lower court merges with that of the appellate court --- The principle of merger applies to reversal and modification and also to all those cases, in which judgment of a lower Court is affirmed in appeal or revision by the higher forum --- Therefore, the starting point of limitation of a fresh Execution Petition, subsequent to the first one, is the date of the final judgment of the final court of appeal.

--- Estoppel --- Scope --- The doctrine of estoppel does not operate against a statute --- No undertaking, concession, or participation can override an express legal prohibition.

--- O. II, R. 2 --- Qanun-e-Shahadat (10 of 1984), Art. 114 --- Doctrine of election --- Parallel forums --- Scope --- When a party chooses to initiate proceedings through a specific forum where parallel remedies are available, it cannot subsequently abandon that election to seek recourse through another forum --- Such an action is barred under the doctrine of election, read with the principles of estoppel --- Where petitioners opted to challenge revenue mutations before the revenue hierarchy but later instituted a civil suit for the same relief without exhausting the former, the suit was hit by the doctrine of election.

--- O. XXIII, R. 1 --- Withdrawal of suit and permission to file fresh suit --- Failure to obtain leave --- Effect --- Where a previous suit on the same cause of action is dismissed in default and an application for restoration coupled with a request for withdrawal with liberty to file a fresh suit is dismissed, the institution of a subsequent (third) suit is blatantly barred --- A party cannot bypass the requirement of seeking express permission from the court to file a fresh suit by simply initiating new litigation after a previous failure on the same subject matter.

--- S. 21 --- Territorial jurisdiction --- Objection at appellate stage --- Prejudice --- Waiver --- Raising objection to territorial jurisdiction at a later stage is “highly prejudicial and contrary to justice” --- Once case has proceeded and judgment is given, defect in territorial jurisdiction is treated only as a technical error --- Party is deemed to have waived objection by not pressing it at earliest stage.

--- S. 21 --- Family Courts Act (XXXV of 1964), Ss. 5 & 17 --- West Pakistan Family Courts Rules, 1965, R. 6 --- Territorial jurisdiction --- Objection as to place of suing --- Waiver --- Failure of justice --- Appellate stage --- Objection as to place of suing is required to be taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement --- Where no issue regarding territorial jurisdiction was framed and objection was neither raised before Trial Court nor taken in memo of appeal, appellate court could not reverse decree on that ground --- In absence of “consequent failure of justice”, defect in territorial jurisdiction is to be treated as a technical error.