Kareem Ullah and another Vs Mst Imran Shahzadi and another

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BAITNU BENCH

(Judictal DePartment)

C.R.No.97-Bl2022 with

Kareem Ullah and another

Versus

Mst. Imran Shahzadi and another

JUDGMENT

For petitioners: IWs Muhammad Shah Nawaz Khan Sikandri and Mir Zali Yrhan Khattak, Advocates.

For respondents: IWs Sawal Nazir Khan and Abdul Nasir Khattak, Advocates for resPondent No.1.

Date of hearine: L9.6.2025.

n MUHAMMAD TARIO AFRIDI, J.- Through the instant civil revision petition, filed under Section ll5 of the Code of Civil Procedure, 1908, the petitioners, Kareem Ullah and Kifayat Ullah, have called into question the validity and legality of the impugned judgment dated 10.12.2021, rendered by the learned District Judge, Karak, whereby the appeal of respondent No.l, Mst. Imran Shahzadi, against the judgment and decree dated 21.12.2020, passed by the learned Senior Civil Judge, Karak, was partially allowed.

2.The facts giving rise to the present revision petition are that respondent No.l, Mst. Imran Shahzadi, instituted a suit for recovery of Rs.20,00,000/- along with 18% profit at

the bank-rate against the present petitioners and 2nd respondent, Muhammad Ratrman. The respondent No.2 contested the suit by filing written statement whereas the petitioners failed to appear and were consequently proceeded against ex-parte. The learned trial Court, after recording evidence and hearing arguments from the parties, dismissed the suit vide judgment and decree dated 2t.12.2020.

3.The respondent No.l, dissatisfied with the dismissal preferred an appeal before the learned Distict Judge, 4 Karak. Though all the respondents in the appeal, including the present petitioners, were summoned, only respondent No.2 actively contested the appeal. The petitioners did appear once on 04.03.2021 before the appellate Court, whereupon the maffer was adjourned for submission of Vakalatnama, but thereafter the petitioners failed to pursue the appeal proceedings. Ultimately, the learned District Judge, vide judgrnent and decree dated 10.12.2021, partially accepted the appeal; set aside the judgment and decree of the trial Court to the extent of the petitioners and decreed the suit of respondent No.l against them, while maintaining dismissal of the suit against respondent No.2 Hence, the present revision petition.

4.I have heard the learned counsel for the petitioners as well as the learned counsel for the respondent No.l and

have also perused the record of the case with their able assistance.

5.The respondents' counsel raised a preliminary objection regarding the maintainability of the revision petition, arguing that the petitioners can either challenge the appellate Court's decree through a revision petition in the High Court or by filing an application under Section l2(2) C.P.C before the appellate Court but they cannot pursue both remedies simultaneously for the same issue.

6.The record demonstrates that petitioners initially challenged the Disfiict Judge Bannu's judgment and 4 decree, dated 10.12.2021, tluough an application under Section l2(2) C.P.C on 07.01.2022. Howwer, while that application was still pending, the petitioners on07.3.2022 filed the instant revision petition thereby challenging the judgment and order of the Disfiict Judge Bannu dated 10.12.2021 in duplicate proceedings. The appellate Court dismissed the petitioners' application under Section l2(2) C.P.C on 10.6.2022. This dismissal has been challenged through a connected Revision Petition No.257-812022, which was filed on 12.10.2022; seeking to set aside the appellate Court's order dismissing the application under Section lzp)C.P.C.

7.Legally speaking, the provisions of Section l2(2) C.P.C are not intended to be a duplicate ofthe proceedings

n provided for in Section 115 C.P.C. By instituting an application under section l2(2) C.P.C before the District Judge, the petitioners have chosen a specific legal remedy, therefore, they are precluded from pursuing an alternative remedy for the same subject matter, as it would amount to pursuing parallel remedies for the same relief, which is not permissible under the "Docftine of election of remedy".

8.Needless to mention that as the order of the District Judge Bannu, dated 10.6.2022, dismissing the application under Section l2(2) C.P.C has been challenged through connected Civil Revision No.257-B12022 instituted on 12.10.2022, therefore, the "Docffine of election of remedy" and the principle of "Res Judicata" preclude the petitioners from agitating the same matter/issue through the present petition, which has been filed later in time. In view of the facts and circumstances of the case, "Doctrine of remedy" and principle of "Res Judicata" axe squarely applicable. As a result, this revision petition is dismissed. Reliance is placed on judgments reported as "Mrs. Amina Bibi through General Attorney v. Nasrullah and others" (2000 SCMR 296), and "Ghulam Sarwar v. Muhammad Hussain and others" (1987 SCMR 1440).

SCAmmo a 3 Announced.

Dt:19.6.2025.

Imran/* rUDGE

(S.B)

Hon'ble Mr. Justice MuhammadTariq Afrtdi