 
 
IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
Present:  
Mr. Justice Mushir Alam 
Mr. Justice Faisal Arab 
Mr. Justice Sajjad Ali Shah 
 
 
Civil Petition No.60-K of 2018 
Against 
the 
judgment 
dated 
04.12.2017 passed by the High 
Court of Sindh at Karachi in 
Const.P. No.S-1862 of 2016.  
 
 
Trading Corporation of Pakistan 
Petitioner(s)  
 
VERSUS 
 
Devan Sugar Mills Limited and others 
Respondent(s) 
 
 
 
For the Petitioner(s)   
: Mr.M. Sarfraz Metlo, ASC 
Mr.K.A. Wahab, AoR 
 
 
 
 
For the Respondent(s)  
: Mr.Khalid Javed Khan, ASC 
 
 
 
 
Date of Hearing 
: 05.09.2018 
 
 
JUDGMENT  
 
 
 
Mushir Alam, J-. Instant matter arises out of impugned 
judgment dated 04.12.2017 whereby order passed by the learned 
Executing Court/VIth Senior Civil Judge, Karachi South dated 
01.11.2016 and learned Additional Sessions Judge Vth, Karachi South 
in appeal dated 9.11.2016 concurrently dismissing the application 
under section 47 CPC was set aside and case was remanded to the 
learned Executing Court to decide the application afresh. 
2. 
 
In 
nutshell 
it 
appears 
Appellant 
filed 
ejectment 
proceedings against the respondent-tenant on the ground of personal 
requirement and default in the payment of rent with effect from 
1.8.2008. Learned Rent Controller under section 17(8) of the 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
2 
 
 
Cantonment Rent Restriction Act, 1963 passed tentative rent order 
directing the Respondent-tenant to deposit the arrear of rent 
amounting to Rs.23,755,482/- within 30 days from the date thereof 
and future monthly rent on or before 5th of each month. It appears 
that the rent as per tentative rent order was not deposited that led to 
the filing of an application under section 17(9) of the Act, ibid to seek 
striking off the defence. Learned Rent Controller Karachi, Cantonment 
on verification of the record that no rent having been deposited in 
terms of tentative rent order as noted above; struck off the defence 
and as a consequence respondent-tenant was directed to vacate the 
demised premises comprise of Tower-A 8th Floor, Block-A, Finance & 
Trade Centre (FTC), main Shahrah-e-Faisal, Karachi within 30 days 
vide order dated 17.05.2011, which order was not challenged in 
appeal, attained finality.  
3. 
 
On failure of the respondent-tenant to vacate the 
tenement, the Appellant herein filed Execution Application No.40/2011. 
After service, the respondent-tenant on 07.12.2011 filed an application 
under section 12(2) CPC detailing facts and grounds, which according 
to the tenant led them to believe that terms of ejectment order have 
been varied, as the rent was being received in instalments, which led 
them to believe that the Appellant-land lord have waived its right to 
seek eviction. The application was contested and dismissed through a 
detailed order dated 07.08.2012 (available at page 117 of the paper 
book), which order was maintained by the High Court in Constitution 
Petition No.S-923 of 2012 through the detailed judgment dated 
19.08.2016 (available at page 117 of the paper book), which order 
attained finality.  
4. 
 
The Respondent instead of vacating the tenement, on 
14.10.2016 chose to make another application under section 47 read 
with section 151 CPC without disclosing that earlier an application 
under section 12(2) CPC on substantially similar facts and grounds was 
also dismissed by the Executing Court, which was maintained by the 
High Court as noted in preceding paragraph.  
5. 
 
The application under section 47 CPC read with section 151 
CPC was dismissed by the learned executing Court/6th Senior Civil 
Judge, South Karachi vide order dated 01.11.2016 (available at page 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
3 
 
 
71 of the paper book), which order was maintained by the Additional 
Sessions Judge-V, Karachi South in Civil Revision No.156 of 2016 vide 
order dated 09.11.2016, (though such order is appealable under 
section 104(1)(ff) CPC no appeal was filed), against which the 
respondent preferred Constitution Petition No.S-1862 of 2016 before 
the High Court. The learned bench of the High Court in consideration 
of reasons set down in paragraphs No.24 and 25 of the impugned 
judgment remanded the case to the learned executing Court; which 
read as follows: 
“24. 
The reason of discussing the aforesaid judgments 
in respect of section 47 and order 21, Rule 2 of Civil 
Procedure Code is to ascertain that the criteria, reasoning 
and rational of deciding two applications one under 
section 12(2) and the other under section 47 of Civil 
Procedure Code are different and distinct and reasoning 
of the earlier cannot overlap the reasoning of later. 
25. 
The executing Court while deciding application got 
influenced by the findings of earlier round in respect of an 
application under section 12(2) CPC in CP No.923/2012. 
Findings of the trial Court and Appellate Court should 
have been based on rationale as to whether there was 
any compromise to adjust or satisfy the decree to make it 
unexecutable? Whether there was any compromise 
between them in respect of a question arising out of 
suit/application i.e. arrears of rent and eviction? Whether 
maintenance 
claim 
in 
draft 
compromise 
or 
correspondence was extraneous to the “question arising 
out of pleadings” hence the trial Court can exercise 
jurisdiction in terms of Section 47 CPC? Whether an 
alleged compromise can “still” be certified by the Court 
under Order 21, Rule 2 CPC, executing the decree 
excluding the issue of maintenance charges or any other 
issue not arising out of pleadings?”    
It was, concluded by the learned bench of the High Court that “ousting 
the petitioner from availing their remedy, which they could have 
before executing Court amounts to denial of fair trial” and set aside 
orders dated 9.11.2016 and dated 01.11.2016 passed by Vth ADJ 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
4 
 
 
Karachi (s) and VIth Sr. Civil Judge respectively the case was 
remanded to executing Court for passing appropriate order.  
6. 
 
Learned counsel for the petitioner has vehemently argued 
that all grounds as urged by the respondent in his application under 
section 47 CPC were also raised in its earlier application under section 
12(2) CPC, nothing new has been added. It was urged that payment of 
the rent in piecemeal after the defence was struck off, will not wipe 
out the consequence of ejectment nor indulgence of the appellant to 
receive rent, which was otherwise overdue and payable will amount to 
discharge and or satisfaction of ejectment order. It was next urged 
that subsequent application under section 47 CPC was hit by principles 
of constructive res-judicata and is otherwise not maintainable.  
 7. 
 
Mr.Khalid Javed Khan, learned ASC for the respondents 
supports the impugned judgment. It was urged that though concurrent 
remedies are available to challenge the ex-parte order of striking off 
the defence. It was urged that the remedies under section 12(2) CPC 
and that under section 47 CPC are separate and distinct, provide 
different 
parameters 
and 
reasoning 
to 
resist 
the 
execution 
proceedings, such remedy could be invoked alternatively successively 
and exhausting one may not bar the other remedy.  
8. 
 
Heard the counsels and perused the record. We have 
examined the contents of the application under section 12(2) CPC 
which was filed on 7.12.2011, heard and decided by the executing 
Court on 7.8.2012 and maintained by High Court on 9.8.2016 and the 
one filed under section 47 CPC on 14.10.2016. We have noted that 
facts and ground in both set of the proceedings are substantially same. 
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 than 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 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
5 
 
 
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 2 rule (2) CPC,  principles of estoppel  as 
embodied in Article 114 of the Qanoon-e-Shahdat Order 1984 and 
principles of res-judicata as articulated in section 11 CPC 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/judgement/decree etc. emanating from proceedings of civil 
nature, which could be challenged/defended under Order 9 rule 13 (if 
proceeding are ex-parte), section 47 (objection to execution), section 
114 (by way of review of an order), section 115 (revision), under 
Order 21 rule 99 to 103 CPC and section 96 CPC (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 9 rule 13 CPC and also an application under 
section 12 (2) CPC 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 give 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 CPC) and or where one 
of the proceeding is taken to its logical conclusion than 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 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
6 
 
 
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 versus 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 decisions, 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. versus 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.” 
 
10. 
 
In the light of above discussions, adverting to merits of 
case in hands, observation of the learned Revisional Court while 
attending to the question of second remedy under section 47 CPC after 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
7 
 
 
having failed to get any favourable order on application under section 
12 (2) CPC is quite apt, it reads as follows: - 
 
“Looking to the contents of constitution petition 
filed by the applicant before the Honourable Court of 
Sindh. It appears clearly that the facts as regards 
settlement if any between the parties was submitted in 
the pleadings so also the cheques through the payments 
were made were specifically mentioned in the memo 
constitution petition and it was also argued and urged 
before the honourable High Court of Sindh but no order 
favourable to applicant was passed by Honourable Court 
of Sindh as such it is presumed that such a relief was not 
granted and it was refused and as such the remedy was 
available to the applicant was to approach before 
Honourable Supreme Court of Pakistan for which 
admittedly the applicant obtained time by moving 
miscellaneous application in the constitution petition. Now 
the applicant has again agitated the same issue by 
moving application under section 47 CPC with delay on 
14.10.2016 and here is no explanation as to why this 
application 47 CPC was not filed at the earliest possible 
opportunity. Which establishes the fact that the point had 
already been agitated before the Additional controller of 
Rent as well as before the honourable High Court of 
Sindh. The learned executing Court has rightly decided 
the said application as it was found that the question was 
earlier decided by Honourable High Court of Sindh as such 
cannot be agitated before the lower forum.”    
  
11. 
 
In this view of the matter, the impugned judgment of the 
learned bench of the High Court cannot be sustained. Fair trial, does 
not envisage recourse to successive remedies one after another 
against one and the same impugned order on substantially same set of 
facts and pleadings seeking substantially similar relief, as it would be 
against the doctrine of election, as expounded above. A tenant 
confronted with ex-parte order striking out its defence resulting in his 
ejectment order, quite a few remedies may be available against such 
order; namely Appeal under section 24 of the Cantonment Act, 1963, 
Application under Order 9 Rule 13 CPC, Application under section 
12(2) CPC, application under Order 21 Rule 99 to 103 CPC and not the 
least application under section 47 CPC all such remedies arm the 
tenant/ judgment debtor to effectively resist ex-parte ejectment order 
passed against it. In instant case as noted above respondent-tenant, 
chose not to file appeal under section 24 of the Act, 1963 against the 
ejectment order dated 17.5.2011 but had chosen to invoke provisions 
of section 12 (2) CPC on 07.12.2011, which application was dismissed 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
8 
 
 
on merits by the executing Court on 7.8.2012 and maintained by High 
Court on 19.8.2016. The Appellant after almost five years from date of 
ejectment order, ventured to invoke Section 47 CPC on substantially 
same facts and grounds. Even if it is assumed that grounds as 
available under section 47 CPC to question executability, discharge or 
satisfaction of ejectment order passed as a consequence for non-
compliance of tentative order, set down different parameter to resist 
and defend execution of eviction order, then too, all such grounds 
were very much available when first application under section 12(2) 
CPC was initially made. Case of the petitioner is squarely covered by 
explanation IV of section 11 CPC, which reads as follows: 
“Any matter which might and ought to have been made 
ground of defence or attack in such former suit shall be 
deemed to have been a matter directly and substantially in 
issue in such suit.”  
12. 
 
In the instant case no reservation was made or avenue 
kept open while deciding application under section 12(2) CPC either by 
executing Court or for that matter by the High Court for the appellant 
to explore other remedy. Where a judgment debtor fails to raise all 
objections as may be available at the time when execution was resisted 
by invoking one out of few other available remedies then he is 
precluded by his conduct to raise any such objection, and all such 
objections and challenges, if any, will be deemed to have been raised 
and decided against him. After exhausting one of the remedies under 
section 12(2) CPC against the order striking out defence, judgment 
debtor cannot be allowed to go on expedition to venture another 
remedy for the same malady, which though available was not invoked, 
Respondent-tenant cannot be given premium to go on venturing one 
after another remedy. Permitting such course would be nothing but 
abuse of the process of law and would amount to encourage 
multiplicity of proceeding, which cannot be approved. Accordingly, this 
petition is converted into appeal and allowed.  
13. 
 
At the conclusion of hearing, learned counsel for the 
respondent states, if this Court does not concede to the arguments of 
the Respondent, may consider giving reasonable time to vacate, as it is 
old tenancy and subject premises is commercial, learned counsel for 
the appellant has left the matter for Court to decide. In this view of the 
matter, nine months’ time is granted to the respondent-tenant to 
Civil Petition No.60-K of 2018. 
 
 
 
 
 
 
9 
 
 
vacate the premises and hand over the peaceful and vacant possession 
thereof to the appellant. However, subject to payment of regular rent 
and utility charges. In case of any default, and or failure to hand over 
vacant and peaceful on or before expiry of period allowed herein, writ 
of possession, without notice shall be issued with police aid and 
breaking open the lock.  
  
 
 
 
 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
 
 
 
Karachi, the 
5th of Sep., 2018 
Syed Farhan Ali 
 
 
Approved for Reporting  
JUDGE 
 
 
