Date of hearing 5th and 12th of April, 2019
Petitioner by M/s.Hamid Khan and Tariq Saeed,
Advocates.
Respondent by M/s. Zaheer-ud-Din Babr, Rana Itizar and
Mr. Atif Mohtashim Khan, Advocates
Ch. Muhammad Masood Jahangir ,J.-The
titled Revision Petition was initially dealt with by my two Hon’ble
brothers, one of them, Amin-ud-Din Khan, J. not only held that
an application under section 12(2) of the Code, 1908 preferred by the
the same litigant during the pendency of his RFA was maintainable,
rather the said application was allowed when not only R.F.A. had
already been dismissed by this Court and also upheld in C.P. as well
as Reviewed by the apex Court, whereas the other, Ch. Muhammad
Iqbal, J. adopted dissenting view while dismissing the application under
section 12(2) being not maintainable.
On account of the difference of opinions between the two, the case was
referred to me by the Hon’ble Chief Justice as a third Judge under
Clause 26 of Letters Patent in order to render an opinion as per Rule (5),
Part-H, Chapter-4 of Vol: V of the Rules and Orders of the Lahore
High Court, Lahore read with section 98 of the Code, 1908, however,
the point of dissent was not reduced to the form of a question/issue
while referring to it, but to my absence of formulation of the point of
the difference would not render the reference illegal and having gone
through the verdicts of both my learned brothers, the specific points
requiring determination would be; firstly whether a case is covered by
the mischief of section 12(2) of the Code ibid was made out, and
secondly, whether two parallel remedies can be launched and after
exhausting one up to the level of the last Court, the second one can
also, be pressed into by the failing party and granted.
C.R.No.1339/2017 2
2. Undisputedly, the petition under section 122 of the
Insurance Ordinance, 2000 preferred by the respondent against the civil
revisioner after settling issues, recording and appreciating the
evidence, so led by the contesting parties, culminated on 3rd
October 2012 in favor of the former by the learned Tribunal. The
petitioner firstly assailed it on 3rd November 2011 through an Appeal
under section 124(2) of the Ordinance ibid before this Court, and it
was still sub judice, when after losing more than a year, the
an application under section 12(2) of the Code ibid was preferred, which
was not activated, however, the Appeal of the petitioner was finally
dismissed on the score of limitation vide judgment of 6th April 2016
and it though was assailed through C.P. as well as Review before the
apex Court, but both failed, and the verdict of this Court, whereby
RFA was dismissed and became final. Thereafter, the application under
section 12(2) was agitated for its logical end but resulted in divergent
opinions, as observed supra.
As the file was received being fixed for the actual date, learned counsel for
the parties requested for rights of the audience, who exhausted
themselves on the same lines, which they had already addressed
when this petition was heard by my brothers, as such it will be
unnecessary for the sake of repetition to reproduce their submissions
here, however, Mr. Hamid Khan, Advocate, counsel for the petitioner
in support of his arguments relied upon the judgments reported as
R.V. Narayanaswami Chetti Vs. Soundarabajan & Co (AIR 1958 Madras 43), M/s.Raj
Spinning Mills Vs. M/s. A.N.G.King Ltd. (AIR 1959 Punjab 45), Haji Moosa Haji Oomer Vs.
Ahmed Abdul Ghani and another (PLD 1968 Karachi 320), Mercantile Fire & General
Insurance Co. of Pakistan Ltd. Vs. M/s. Imam & Imam Ltd. (1989 CLC 2117), Haji Habib & Co.
Vs. Alpha Insurance Co. Ltd. (1992 CLC 1586), Muhammad Iqbal through duly authorized
Attorney Vs. Muhammad Ahmed Ramzani and 2 others (2014 CLC 1392), Ahsan Ali and
others Vs. District Judge and others (PLD 1969 SC 167), Mansab Ali Vs. Amir and 3 others
(PLD 1971 SC 124), Hakim Muhammad Buta an another Vs. Habib Ahmad and others (PLD
1985 SC 153), Mst. Dilbar Hamid Vs. Dr. Ghulam Bheek Khan and others (1997 SCMR 610),
Gatron (Industries) Limited Vs. Government of Pakistan and others (1999 SCMR 1072), Dil Mir
Vs. Ghulam Muhammad and 2 others (PLD 2002 SC 403), Muhammad Sami Vs. Additional
District Judge, Sardogha and 2 others (2007 SCMR 621), Almas Ahmad Fiaz Vs. Secretary
Government of the Punjab Housing and Physical Planning Development, Lahore and another
(2006 SCMR 783), Mrs. Amina Bibi through General Attorney Vs. Nasrullah and others (2000
SCMR 296), Muhammad Hussain Vs. Mukhtar Ahmad (2006 SCMR 71), Mst. Sabiran Bibi
and others Vs. Ahmed Khan and others (2008 SCMR 226), S.M.Sohail Vs. Mst. Sitara Kabir-udDin and others (PLD 2009 SC 397), Lahore Development Authority vs. Firdous Steel Mills (Pvt)
Ltd (2010 SCMR 1097) Allah Ditta Vs. Ahmed Ali Shah and others (2003 SCMR 1202),
Sahabzadi Maharunisa and another Vs. Mst. Ghulam Sughran and another (PLD 2016 SC
C.R.No.1339/2017 3
358), Haji Farman Ullah Vs. Latif ur Rehman (2015 SCMR 1708), and Terrance Williams Vs.
Pennsylvania (2016 SCMR 1561).
3. Emerging of available records affirms that firstly RFA
No.992 of 2012 was preferred under section 124(2) of the Insurance
Ordinance ibid and the para-11 being relevant is given below:-
11. The written statement to the suit was filed by the
Appellant on 05.01.2009 and issues were framed by the
Hon‟ble Insurance Tribunal on 22.01.2009. In the written
the statement, it was contended on behalf of the Appellant that
the Respondent had no right to claim under the Policy as the
risk in the consignment had passed on to the consignee under
CIF sale with the Respondent paid in advance. The written
the statement also stated that the claim had been rejected on the
basis of the survey report, which attributed the damage to
improper/inadequate lashing and securing of the cargo on the
carrying trucks.
The grounds of attack to assail the impugned judgment in RFA
agitated in para-14 from “A to T” for ready reference is also
reproduced hereunder:-
A). That the Impugned Judgment is liable to be set aside as it
awards compensation to a complete stranger, who has
suffered no harm whatsoever. This renders the Impugned
Judgment is unsafe and bad in law, and nullity in the eyes
of law
B). That the Impugned judgment is liable to be set aside as it
ignores the basic principle of CIF contracts in which the risk
passes to the buyer the moment the goods are dispatched
to it by the seller whereafter the seller retains no risk in the
goods and therefore become ineligible to claim under the
insurance policy.
C). That the impugned judgment is liable to be set aside as it
fails to take into account the basic point of limitation which
renders the claim by the respondent barred by law, having
been filed more than three years after the alleged cause of
action.
D). That the Hon‟ble Insurance Tribunal erred in ignoring
the admitted position that notices to the carrier was a prerequisite to a claim under the policy and that the
Respondent had admittedly not given any such notice to
the carriers, thereby failing in his duty to secure the
legitimate interests of the Appellant insurance company
and disentitling himself in the process to claim under the
Policy.
E). That the impugned Judgment is liable to be set aside as it
is based on incorrect appraisal and patent misreading of
the facts on the one hand and unlawful and unjustifiable
disregard of the evidence on the record on the other.
F). That the Honourable Insurance Tribunal erred in ignoring
admitted evidence, including independent statements from
the consignee of the cargo, showing the real cause of the
the damage being improper or inadequate lashing and
securing of the consignment on the carrying trucks, which
was duly excluded from the scope of the Policy under
Institute Cargo Clauses Act.
G). That the Honourable Insurance Tribunal erred in
concluding that the Appellant had not adduced any
C.R.No.1339/2017 4
document in support of its contentions as the Appellant
was under the bona fide and legitimate impressing all
along that the documents sought to be relied upon by the
The appellant has been duly admitted by the Respondent
and would in due course be brought on the record by virtue
of the Appellant‟s application under Order XII Rules 2 and
4 CPC, which application was not decided at all by the
Honorable Insurance Tribunal, Contrary to the law on the
the subject which requires all pending applications to be
decided before the final disposal of a matter.
H). That the Honourable Insurance Tribunal erred in not
deciding at all Appellant‟s application under Application
under Order XII Rules 2 and 4 CPC in dismissing
appellants’ application under Order XIII Rule IV read with
section 151 CPC and Order XIII rule 1 read with section
151 CPC. These errors proved fatal in this case as they
seemingly led the Honourable Court to conclude that the
The appellant had not adduced any evidence and also to
completely disregard the evidence that was otherwise
admitted at the evidence stage even by the respondent
himself.
I). That the Honourable Trial Judge ignored the facts of the
the case pertaining to records of evidence, to the effect that
since the Respondent admitted all the documents written
by the parties, the Appellant‟s witness tendered all these
documents without any objection. Due to a procedural error
however, the documents were not shown as exhibited or
numbered. It was this mistake that was sought to be
rectified by the aforesaid applications, which applications
were unjustly dismissed/not decided by the Honourable
Trial Court. Without prejudice, it is submitted that even if
there was any human mistake in this regard it can be
ascribed to the counsel‟s negligence and the Appellant
should not be penalized for no fault of their own.
J). That the documents the admission of which was sought to
be placed on record and which were sought to be
numbered and exhibited formally, clearly demonstrated
the true cause of the damage. While the Honourable Trial
The court allowed a new document to be brought on record by
the Respondent at an extremely late stage of the trial,
holding that “the provisions of the law are always meant to
administer justice and not the technicalities”, similar
requests by the Appellant were unlawfully rejected on the
ground that “the petitioner did not produce the same at the
time of recording of evidence and now at such belated
stage has filed applications one after the other”. This
obvious discrimination in the treatment of the two parties
by itself renders the entire impugned judgment unsafe in
law and liable to be set aside.
K). That the evidence allowed to be placed on record on the
The Respondent‟s later application was not even related to the
issues in hand, whereas the applications by the Appellant
were all very pertinent and would have not only helped the
Honorable Trial Court in reaching a lawful decision but
were actually vital to the just conclusion of the trial.
L). That the Honourable Trial Judge erred in the law allowing the
survey report to be brought on the record as not only was
this report is crucial to the real controversy in the matter, it
being an electronic document, was actually admissible
under the Electronic Transactions Ordinance 2002.
C.R.No.1339/2017 5
M). That the Honourable Trial Judge appears to have based
the Impugned Judgment on the flawed understanding of
the law on burden of proof, as the apparent understanding
displayed on the face of the Impugned Judgment is that it
was for the Appellant to prove that the loss was not
covered by the terms and conditions of the Policy, whereas
the law on the point is that the Respondent, having made
the claim and the application under the Policy were duty
bound to prove how the loss was covered by such terms
and conditions of the Policy. Not only is this the legal
position, but also the facts being solely in the possession of
the Respondent or his agents, it had to be the respondent
alone who was bound under the law to prove each of his
contentions.
N). In decreeing the Respondent‟s application „as prayed‟, the
Honorable Trial Court has effectively awarded the
Respondent- a stranger- full insurance coverage amount
when it was not even the Respondent‟s own case that the
the entire consignment had been destroyed. By all accounts,
the damage was at the most worth US$100,000 and even
that could not be proved by the Respondent in his
evidence. To award the entire coverage amount therefore
renders the Impugned Judgment clearly wrong and
accordingly, liable to be struck down.
O). The Respondent also claimed the cost of the application, along
with counsel‟s professional fee. The Impugned Judgment
in decreeing the application “as prayed” appears to have
awarded the cost of the application, along with the
counsel‟s professional fee, without even being addressed
on these amounts and whether or not they may even be
awarded under the law. The same goes against the norms
and practices of the land and is a patent manifestation of
the general apathy with which the merits of the claim
were considered, rather not considered, by the Honourable
Trial Court.
P). That the award of liquidated damages by the Honourable
The trial Judge is equally indefensible as, admittedly, the
damage occurred due to improper or inadequate lashing
and securing the consignment on the carrying trucks.
There is therefore no question of any liquidated damages
being awarded against the Appellant.
Q). The case was heard by various presiding officers at the
Insurance Tribunal and the Honourable Judge who
ultimately authored the Impugned Judgment had been in
the office for just days when he passed the Impugned
Judgment. The Honourable Judge was also under severe
pressure to decide the case urgently as the Respondent
had filed petitions in the Honourable Supreme Court for
early disposal of this case, even though it was the
Respondent himself who had been delaying the
proceedings all along. A decision under such intense
pressure, with respect, is never a safe decision in law,
particularly with various applications to decide and all the
evidence to be considered. The Impugned Judgment is
therefore liable to be set aside on this ground alone.
R). That the Honourable Trial Court failed to take into account
the fact that the Respondent had filed the claim in the court
and had acted all along with unclean hands and was
therefore not entitled to any remedy.
C.R.No.1339/2017 6
S). That the Honourable Trial Court failed to take into account
that no cause of action whatsoever had been shown by
the Respondent against the Appellant.
T). The Appellant reserves the right to add more or further
grounds during the pendency of these proceedings.
and when the contents of the application under section 12(2) are
gone through, those were found to be verbatim/analogous of the
afore-noted para as well as grounds of RFA. There was no ground in
this petition to claim that order dated 3rd October, 2012 had been
procured through fraud, misrepresentation, collusiveness or any
such other elements, what to talk about the detail thereof, so these
basic components of the provision to deal with the said application
were absolutely missing since its inception. Without specifying the
essential detail, the pleadings per se were not sufficient to declare
that the order was obtained by practicing fraud. In this respect, the
provisions contained in Order VI Rule 4 of the Code, 1908 are worth
perusal. To substantiate this aspect of the case, reliance is placed on
Waheed Ullah Khan and 2 others versus Kalim Ullah and 3 others
(PLD 1977 SC 75), wherein it has been held that:-
In particular, rule 4 of Order VI of the Civil Procedure Code
lays down that in all cases in which the party pleading
relies on any misrepresentation, fraud, breach of trust, willful
default or undue influence and in all other cases in which
particulars may be necessary beyond such as are in the
form exemplified aforesaid, particulars (with dates and
items if necessary(1) shall be stated in the pleadings. In Bal
Gangadhar Tilk and others Shrinivas Pandi and others
(AIR 1915 PC 7), it was held that in pleadings, general
allegations, however, strong may be, the words in which
they have stated are insufficient even to amount to an
the averment of fraud of which any Court ought to take notice.
Hence, the petitioner failed to clearly spell out the case of fraud and
misrepresentation out of the above-stated facts, whereas other
quoted grounds were not enough to bring his case within the ambit
of the relevant provision. Mr. Hamid Khan learned counsel for the
petitioner on having been faced with the contents of the application
tabled by his client submitted that the respondent being a consigner had
no right to claim the amount as well as liquidated damages, who in spite
of lacking locus standi to prefer his claim before learned Tribunal
through cheating procured a favorable decree, the judgment under
attack of application u/s 12(2) of the Code being tainted with
misreading and non-reading of evidence was liable to be set aside for
want of jurisdiction, was not well founded. The petition under the section
C.R.No.1339/2017 7
12(2) of the Ordinance ibid had been contested on this score as well
before the learned Tribunal, which was adhered to as per facts and
law, but anything even having been rendered erroneously or illegally
could not be assailed under Section 12(2) of the Code ibid, especially
when the basic judgment discussed the entire evidence issue-wise in
detail. In fact, the grounds and submission pleaded/urged traveled
beyond the scope of Section 12(2). The application under this
the provision only lies if the order/judgment/decree was obtained by
practicing fraud etc. In the present case, such ingredients are
certainly missing, whereas Section 12(2) is not substitute of appeal,
which also cannot be equated or treated at par to the remedy of
review or revision. In the present case, the entire controversy had
already been culminated and become final. For the sake of
arguments, if submissions of Mr. Hamid Khan are taken to be
correct, it was, at best, a case in which the judgment was
obtained by false evidence or the learned Tribunal misread or
misconstrued the available material. It is well established that the
remedy provided under section 12(2) cannot be availed where it is
alleged that the decree was obtained on the basis of perjured
evidence. The philosophy behind this rule would be that all questions
concerning the credibility of the evidence produced in the case relate to
that file and must be decided therein; otherwise, there would be no
finality to the litigation. To me, the application under section 12(2) would
also not be maintainable merely on the ground that the claim was
false or that Lis was incompetent. It is also a recognized principle that a
a decree cannot be challenged on merits, especially when the applicant
was aware of the facts forming the application, but did or did not
assert those in the Court before whom the proceedings were finalized
and subsequently, by means of an application under section 12(2), he is
precluded from challenging the decree under this provision.
There is a hell of a difference between deciding a fact with the wrong exercise of
jurisdiction and for want of jurisdiction. The findings based on
the wrong exercise of jurisdiction could only be agitated under sections
115 or 96 of the Civil Procedure Code, 1908 as the case may be. In
case of Rehmat Ali Vs. Additional District Judge (1988 SCJ 761), the
august Supreme Court while dealing with the expression “without
lawful and of no legal effect” held that the distinction has to be made
in the judgment, which stood vitiated on account of “jurisdictional
C.R.No.1339/2017 8
defect” and a judgment, which is tainted with irregular and improper
exercise of jurisdiction and for correcting latter kind of deficiencies,
the remedy available under the law would be other than to have resorted
to section 12(2) by invoking ground of want of jurisdiction, rather
only the findings for the Court/Tribunal having absolute, no
jurisdiction could be brought before the same forum by means of
application under section 12 (2) of the Code ibid. Here in this case, if
the argument of Mr. Hamid Khan is considered to be correct that a
consigner was not entitled to claim the amount as well as liquidated
damages was a fact but was decided by the Court having
jurisdiction to answer it on either side, hence for any illegality or
material irregularity the jurisdiction vested to Court under the aforenoted provision could not be invoked. Mr. Hamid Khan when was
confronted with the situation that had the Appeal preferred by his client
been allowed, then what would be the fate of subsequent applications,
he was not in a position to wriggle out of it, which left no room to
conclude that it was a ploy and instrument to reopen Pandora’s
box. The scope of provision ibid was restricted and the applicant was
only obliged to prove that fraud or misrepresentation had been
committed by the adversary in connection with the proceedings, but
the contents of his application as disclosed supra, are silent in this
regard. In fact, the petitioner in a way wanted to reopen the matter,
which had been finally disposed of, as such it failed to prove his case
being covered by the mischief of section 12(2) of the Code, ibid.
4. Adverting to the second point of difference of opinion,
admittedly prior to the filing of an application under section 12(2) of the
Code, the Appeal had already been preferred, and after having
remained unsuccessful, the other provided remedy could not be
pressed. Although the petitioner at least had three concurrent
remedies, i.e. appeal, review as well as an application under section 12
(2) to assail the judgment of the learned Tribunal and one does not
exclude the other, but it was open to him to choose either of the three
and the moment one out of those (appeal) was availed, the doors of
the Court to receive/entertain the second application u/s 12(2) were
closed to decide on both remedies simultaneously or one after the
other. If duplication is allowed, then there would be no end of
litigation, which may also cause conflicting judgments and would be
sheer abuse of the process of law. The apex Court while dealing with a
C.R.No.1339/2017 9
the similar proposition in a reported case Mrs. Amina Bibi vs.
Nasrullah (2000 SCMR 296) discussed the remedies and
panorama available to the litigant for his redressal against ex parte
decree and para 7 thereof being relevant is given below:-
„Where a suit has been decreed ex parte, various remedies are
available to an aggrieved person for redress of his grievance.
Firstly, an application under Order IX rule 13 CPC; secondly, an
appeal from the ex parte decree under section 96 (2), CPC; a
petition for review under section 114 read with Order XLVII and
a civil suit on the ground of fraud and want of jurisdiction. The
the latter remedy is now substituted by section 12 (2) CPC. Here,
the petitioner has exhausted her remedies by filing an
an application under Order IX rule 13 CPC and, therefore, on the
the same ground she cannot be permitted to re-agitate the same
issue by means of a fresh petition under section 12 (2) CPC.‟
Thus the petitioner had no lawful excuse or justification to re-agitate
the settled controversy again by resorting to another different
remedy.
5. The apex Court recently rendered a comprehensive judgment
and his lordship Mushir Alam, speaking for it in the case reported as
Trading Corporation of Pakistan Vs. Devan Sugar Mills Limited and
others (PLD 2018 SC 828) discussed the doctrine of election in
the depth and finally held that once the litigant opted to avail one out of
the provided remedies, then it generally could not be permitted to
initiate the other one. The relevant part of his lordship’s conclusion
being applicable to the facts of the case in hand is reproduced
hereunder:-
…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 a 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 proceedings/
actions or remedy from a forum of competent jurisdiction
vest with the suitor. Once the choice is exercised and the election is
made then a suitor is prohibited from launching another
proceeding to seek 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 the 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 resjudicata as articulated in section 11, C.P.C. and its
explanations, the Doctrine of election applies both to the original
proceedings/action as well as defenses and so also to
challenge the outcome on the culmination of such original
proceedings/action, in the form of order or judgment/decree
C.R.No.1339/2017 10
(for illustration it may be noted that multiple remedies are
available against possible outcomes in the form of an
order/judgment/decree etc. emanating from proceedings of
civil nature, which could be challenged/defended under
Order IX, rule 13 (if proceedings are ex-parte), section 47
objection to execution), section 114(by way of review of an
order), section 115 (revision), under Order XXI, rules 99 to
103 C.P.C. and section 96 C.P.C. (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 an election or choice
from amongst two or more available remedies is made an
exhausted, the judgment debtor cannot ordinarily be permitted
subsequently to venture into other concurrently or coexisting
available remedies.
With more certainty, it was further concluded that:-
Giving choice to elect remedy from amongst several
coexistent and or concurrent remedies do not frustrate or
deny the right of a person to choose any remedy, that best
suits under the given circumstances but to prevent recourse
to multiple or successive redressals of a singular wrong or
impugned action before the competent forum/court of
original and or appellate jurisdiction, such rule of prudence
has been evolved by courts of law to curb the 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 cover and
shop for one after another coexistent remedy. In an
illustrative case this court in the case of Mst. Fehmida
Begum v. 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
form it by fraud, but another to hold that such
power of adjudication or jurisdiction 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
the 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.”
In view of the principle so set, the petitioner at the most could select
one of the remedies provided by the Statute, but it was not his choice
to avail/press one after the other.
C.R.No.1339/2017 11
6. The other salient feature of the case would be where
special law provides its own mechanism and procedure to challenge
certain actions under its scheme and recourse to general law for
challenging such actions is not approved by the apex Court. See
Major(Retd.) Pervez Iqbal vs. Muhammad Akram Almas and others
(2017 SCMR 831) wherein it is concluded that all the available
grounds could have been raised before the forum and hierarchy
provided in special law and not in collateral proceedings u/s 12(2) of
the Code, 1908.
7. The judgments relied upon by Mr. Hamid Khan, learned
counsel for the petitioner is entirely distinguishable from the facts
and circumstances of the instant case, wherein the Superior Courts
have discussed the meanings of fraud, misrepresentation, rule of
merger, suo moto powers of the Courts to deal with the application
under section 12(2), but none of the judgments cited above have
come across to cope with situations that even after availing one of the
provided remedies up to the level of honorable Supreme Court, the
same party could maintain application u/s 12(2) for re-agitating the
same grievances as a fresh cause of action.
8. For what has been discussed above, I am of the considered
opinion that application under section 12(2) of the Code, 1908 was
not maintainable and I agree with the opinion and observations of
my learned brother Ch. Muhammad Iqbal, J., which now being view
of the majority would have a decisive effect and the judgment will follow
such opinion.
(Ch. Muhammad Masood Jahangir)
Judge
Announced on 03.05.2019
Judge
Approved for reporting
Judge
Syed Zameer