2026 SCLR 33
Other citations: 2025 SCP 482
[Supreme Court of Pakistan]
Present: Shahid Bilal Hassan and Shakeel Ahmad, JJ
Mst. Safia Khanum and others --- Petitioners
versus
Additional District Judge-II East, Islamabad and others --- Respondents
C.P.L.A.No.3939 of 2025, decided on 6th January, 2026.
[Against judgment dated 03.06.2025 passed in C.R.No.06 of 2019 by Islamabad High Court, Islamabad]
HEADNOTES by Ms. Saamiya Siddiqui, Advocate
(a) Civil Procedure Code (V of 1908) ---
--- 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. [A]
Trading Corporation of Pakistan v. Pakistan (2023 SCMR 653) referred.
(b) Civil Procedure Code (V of 1908) ---
--- 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. [B]
Khawaja Bashir Ahmed and sons Pvt. Ltd. v. Messrs Martrade Shipping and Transport and others (PLD 2021 Supreme Court 373), Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others (2013 SCMR 464), Muhammad Ali and others v. Province of Punjab and others (2009 SCMR 1079), Aziz Ahmad and others v. Mst. Hajran Bibi and another (1987 SCMR 527) and Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore (PLD 2020 Supreme Court 324) referred.
Muhammad Ikhlaque Awan, Advocate Supreme Court for the petitioners.
Respondents: N.R.
Date of hearing: 6th January, 2026.
ORDER
SHAHID BILAL HASSAN-J: This petition under Article 185(3) of the Islamic Republic of Pakistan, 1973, seeking leave to appeal, has been filed against judgment dated 03.06.2025 passed in C.R.No.06 of 2019 by Islamabad High Court, Islamabad.
2. Facts can easily be recapitulated from the impugned judgment, which do not need to be reproduced here.
3. Heard.
4. Considering the arguments and perusing the record, it has surfaced that earlier, Mr. Mehboob Sultan (late), predecessor in interest of the petitioners instituted a suit for declaration and cancellation of basic mutation No.1670/1940 in the year 1991, which was contested by the rival party and the same was dismissed on 14.01.2002, which judgment and decree was upheld in appeal on 16.02.2004. The revision petition filed there-against was also dismissed on 08.06.2015 by the Islamabad High Court. It has been noted that second suit was instituted germane to rectification of mutation No.1670/1940 ibid by the petitioner(S) for the same cause of action on 13.06.2014, which was dismissed in default on 15.10.2016. The petitioner(s) filed an application seeking restoration of the suit alongwith an application for withdrawal of the suit but the same was dismissed and no permission was granted to file a fresh suit. Instead of agitating the said issue further before the higher forum, the petitioner(s) instituted a third suit for declaration, cancellation of mutation No.8225/2014 which was sanctioned in culmination of correction of mutation No.1670/1940 ibid (the basic mutation). It is notable fact that correction in mutation No.1670/1940 dated 27.04.1940 was made vide order dated 01.04.2014 by Additional Deputy Commissioner Revenue/District Collector, ICT, Islamabad and review thereagainst before the Additional Deputy Commissioner Revenue was dismissed on 10.11.2015. However, instead of agitating matter before the higher revenue hierarchy, the petitioner(s) opted to institute a suit for declaration before the Civil Court. The learned Islamabad, on this point, while elaborating and adhering to the ‘doctrine of election’ has rightly appreciated judgment rendered by this Court in Trading Corporation of Pakistan1 case, because when a person chooses to initiate proceedings through forum parallel to other forum, he cannot recourse to the other one by abandoning the election already made and such action is barred under Order II Rule 2 read with Article 114 of the Qanun-e-Shahadat Order, 1984.
It is evident from the record that no permission to file a fresh suit was granted by the learned trial Court as the application for restoration and withdrawal was dismissed and instead of knocking the door of higher forum the petitioners instituted the third suit, which was blatantly barred by Order XXIII, Rule 1 of the Code of Civil Procedure, 1908 and the ratio of judgments2 on the subject has rightly been appreciated.
5. In view of the above discussion, when all the three Courts below have concurrently, while construing law on the subject, non-suited the petitioner(s) and during course of arguments, no substantial question of law and any illegality in the impugned judgment has been pointed out by the learned counsel for the petitioner(s), warranting interference by this Court, we are not inclined to grant leave to appeal to the petitioner(s). As such, no case for grant of leave is made out. The petition in hand fails and the same is dismissed. Leave is refused.
Leave refused
1.Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others (PLD 2018 Supreme Court 828)
2. Khawaja Bashir Ahmed and sons Pvt. Ltd. v. Messrs Martrade Shipping and Transport and others (PLD 2021 Supreme Court 373), Muhammad Yar (Deceased) through L.Rs. and others v. Muhammad Amin (Deceased) through L.Rs. and others (2013 SCMR 464), Muhammad Ali and others v. Province of Punjab and others (2009 SCMR 1079), Aziz Ahmad and others v. Mst. Hajran Bibi and another (1987 SCMR 527) and Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore (PLD 2020 Supreme Court 324)