2026 PLP 747 (YLR)

Qazi Jawad Ehsanullah, J.

The petitioners, through instant petition, have called in question the order/judgment dated 31.07.2023 rendered by learned Member Federal Land Commission whereby order dated 27.04.2023 of the Deputy Secretary (Admn.), Home and Tribal Affairs Department, Khyber Pakhtunkhwa (Presiding Officer, Appellate Court) was set aside while order of the Additional Deputy Commissioner (ADC (G), Swat dated 04.08.2022 was restored vide which application under Section 12(2) of the Civil Procedure Code, 1908 (C.P.C) of LRs of respondent No.1 had been accepted.

2. Brief facts of the case, as narrated in the instant petition, are that a dispute regarding land measuring 204 Satta (local unit for land measurement) arose between Yateem Khan and Nawabzada Shahab-ud-Din Khan, successor of ex-Nawab of Dir (respondent No. 4), and a case to this effect under DCR No. 245 titled "Yateem Khan v. Nawabzada Shahab-ud-Din Khan" was inquired into by the Land Dispute Inquiry Commission constituted under Settlement of Immovable Property Disputes (Dir and Swat) Regulation, 1972 commonly called as Martial Law Regulation No. 123 (MLR-123). The Inquiry Commission submitted its recommendations to the Provincial Government in favour of Nawabzada Shahab-ud-Din Khan, on the basis of which the Deputy Commissioner, Dir, in exercise of his powers under Paragraph 3 of MLR-123 as authorized officer, passed an order dated 11.10.1972, declaring the land in question to be the ownership of the Nawab of Dir. After passing through a series of challenges, the matter finally came before the Federal Land Commission by way of a revision petition filed by plaintiff Yateem Khan, which was decided by the learned Member, Federal Land Commission, vide order dated 29.04.1975[1]. The concluding paragraph of the said order reads as follows: "

8. In these circumstances, the arguments of the Attorney for the petitioner that the document has been contrived merely as a fraudulent device to deprive the petitioner of his property has obvious force. The evidence on behalf of the respondent is accordingly rejected. The petitioner claimed 2/3rd share in the disputed property, the remaining 1/3rd being conceded by him as belonging to his other relations who have not come forward with the claim. The petition is accepted to the extent of 2/3rd of the property in dispute." The aforesaid decree was executed by handing over 2/3rd share (136 Satta out of 204) to the decree-holder, Yateem Khan. According to the petitioners, the remaining 1/3rd share belonged to their predecessors by virtue of the order/decree dated 29.04.1975; however, they were not placed in possession thereof on the ground that they were not parties to the proceedings before the Land Commission. Consequently, they filed a suit on 11.07.1995[2] before the Deputy Commissioner, Dir, as authorized officer under MLR-123, against Nawabzada Shahab-ud-Din Khan who, as per the petitioners' contention, conceded their claim by executing a deed dated 15.11.1998[3]. Resultantly, the suit was decreed by the Deputy Commissioner, Dir Lower, vide order dated 9.12.1998[4] Subsequently, the petitioners filed an application along with a sketch of the suit land[5] before the Deputy Commissioner on 19.09.2000 for execution of the aforesaid decree, alleging that the judgment-debtor, Nawabzada Shahab-ud-Din Khan, remained in possession of the land through his tenants. The Deputy Commissioner transmitted the execution petition to Tehsildar, Munda who, vide order dated 17.07.2001[6], summoned the tenants for 25.07.2001. They recorded a joint statement[7] denying tenancy under Nawabzada Shahab-ud-Din Khan and instead stated that they had obtained the land from one Nizam-ud-Din, who was the Kardar (estate manager) of Ganjley Mian (Mian Shams-ut-Tabrez), respondent No.

1. In the meantime, another person namely Khair Muhammad filed an application seeking impleadment as a party to the proceedings, which was turned down vide order dated 21.12.2002 by the District Collector/District Officer Revenue and Estate (DDOR). The executing forum, Tehsildar Munda, returned the case to DDOR with observations that the property belonged to Ganjley Mian, who was receiving a share of produce from the tenants but was not a party to the proceedings; therefore, the decree could not be executed. The learned DDOR did not agree with the observations of Tehsildar Munda and, vide order dated 21.12.2002[8], directed that 78 Satta of land situated in village Diyaroon Khass be restored to the petitioners in accordance with the decree dated 09.12.1998, declaring the possession of Shams-ut-Tabrez illegal. Thereafter, respondent No. 1 filed an application on 31.12.2002[9], accompanied by certain deeds, seeking stay of the execution proceedings based on various objections. That petition was dismissed by Tehsildar Munda vide order dated 7.01.2003[10]. He then filed another objection petition on 14.06.2004[11] followed by a third one on 08.12.2004[12] and yet a fourth on 20.07.2006[13].

3. The petitioners have further averred that alongside the aforesaid objection petitions, respondent No. 1 had also filed a suit on 21.11.2003[14] before the Senior Civil Judge, Dir Lower, against the present petitioners. That suit was contested by the petitioners through a written statement[15] along with an application[16] for return/rejection of the plaint. After hearing the parties, the learned Senior Civil Judge accepted the petitioners' application and returned the plaint to respondent No. 1 vide order dated 18.05.2004[17]. His appeal against the said order was dismissed on 6.5.2005[18]. Respondent No. 1 then filed a revision petition before this Court, which was accepted vide judgment dated 24.03.2008[19] and the case was remanded to the trial Court with directions to decide it on merits after recording evidence. The petitioners challenged the said judgment before the Apex Court, where their appeal was accepted vide order dated 18.08.2014[20], remanding the case to this Court with observations that the matter pertained to MLR-123 as both parties had claimed from the ex-Ruler of Dir. This Court was directed to determine whether the matter should be decided under MLR-123 or remitted back to the civil Court. After remand, this Court decided the revision petition vide judgment dated 12.04.2017[21], observing: "So, no other exception shall be taken to the findings of learned Court below in regard to jurisdiction of Civil Court. However, the petitioner could agitate all the objections in regard to the execution of orders/ decrees rendered by officers/authorities, established under MLR 123, in the proper forum".

4. The execution proceedings, which had been adjourned sine die owing to the above-mentioned developments, were sought to be revived by the petitioners through an application dated 31.07.2017[22] before the Deputy Commissioner. The legal heirs of respondent No. 1 also filed an application[23] on 20.09.2017 before the Deputy Commissioner, seeking disposal of the objection petition filed by their predecessor on 20.07.2006. The petitioners submitted their written reply[24]. The Deputy Commissioner, through a consolidated order dated 09.11.2017[25], dismissed the application of the legal heirs of respondent No. 1 while accepting that of the petitioners, directed for transmission of the matter to Tehsildar, Munda, for execution of the decree dated 09.12.1998. This order was challenged by the legal heirs of respondent No. 1 before the Home Secretary, Khyber Pakhtunkhwa, under Paragraph 5-A of MLR-123 by filing an appeal. The appeal was disposed of vide order dated 17.11.2021[26], remanding the case with certain directions. The operative portion reads: "In view of the facts stated above and going through the available record and in pursuant to the arguments/counter arguments of the parties, this court came to the conclusion that the trail court may strictly adhere to the wisdom chalked out in the judgment of the Peshawar High Court cited above and the objections of Mian Shams-Ul-Tabrez be properly inquired and if the sale deeds made with Nawabzada Shahab-Ud-Din within the period under imposition of restriction/ban under Para-7 of the MLR -115 by the Deputy Land Commissioner Dir, then he may be asked to seek other available remedy within the relevant Law/rules by making said Nawabzada Shahab-Ud-Din held responsible for chalking out illegal deeds. Thus, pending execution petition of the other party has to be processed accordingly so that this long-standing dispute may come to judicious settlement once for all. Therefore, this appeal is disposed of in manner as stated above." LRs of respondent No. 1, instead of joining the post-remand proceedings, filed an application under Section 12(2), C.P.C[27] before the Deputy Commissioner, Dir Lower, assailing the basic decree dated 09.12.1998 which was entrusted to the Additional Deputy Commissioner (G) (ADC) for disposal. The said application was accepted by the ADC vide order dated 04.08.2022[28]. The petitioners challenged that order before the Deputy Secretary (Admn.), Home and Tribal Affairs Department, Khyber Pakhtunkhwa/Presiding Officer, Appellate Court (respondent No. 6), who accepted the appeal vide order dated 27.04.2023[29], remitting the case to the trial Court with directions to proceed in light of its earlier judgment dated 17.11.2021. Aggrieved, the LRs of respondent No. 1 filed a revision petition before the Federal Land Commission against the order dated 27.04.2023, which was accepted by the learned Member vide order dated 31.07.2023[30], setting aside the order of the Home Secretary and restoring that of the ADC (G) dated 04.08.2022. In this backdrop, the petitioners have filed the present petition.

5. Learned counsel for the petitioners contends that, firstly, the application under Section 12(2) C.P.C, filed by LRs of respondent No. 1 was hopelessly time-barred as it had challenged the basic judgment dated 09.12.1998 passed by the Deputy Commissioner, Dir (Trial Court). Secondly, he submits that the Deputy Commissioner was not a competent authority under Paragraph 3 of MLR-123 to entertain an application under Section 12(2), C.P.C. Thirdly, it is argued that the challenge raised by the respondents was hit by the doctrine of election, as respondent No. 1 had earlier filed three separate objection petitions and, after the dismissal of the third, preferred an appeal before the Secretary Home, which was allowed and the case was remanded to the trial Court; however, he abandoned those proceedings and instead chose to file the present application under Section 12(2), C.P.C, against the basic decree dated 09.12.1998.

6. Conversely, learned counsel for respondents Nos. 1/1 to 1/6 (LRs of respondent No. 1) has refuted the arguments advanced at the bar, contending that the application under Section 12(2), C.P.C, filed by his clients was not time-barred because the basic order, being a consent decree, was void. He further submits that the application was maintainable since it was filed before the same authority which had passed the impugned order/decree. He also asserts that the doctrine of election was not attracted to the present case.

7. Arguments heard and record perused.

8. Perusal of the record reveals that the consent decree was passed by the trial Court on 09.12.1998, whereas respondent No.1 had questioned the same through his application under Section 12(2) C.P.C on 07.04.2021, after an unexplained delay of more than two decades. It is also evident that respondent No.1 had earlier moved his first application seeking stay of execution proceedings on 31.12.2002. Even if this date is accepted as the point of his knowledge regarding the decree, the limitation period prescribed under Article 181 of the Limitation Act, 1908, being three years from the date when the right to apply accrues, would have expired on 31.12.2005. Consequently, the application under Section 12(2) C.P.C, filed on 07.04.2021 was hopelessly barred by time and was, therefore, not maintainable in law. It is a settled principle that statutes of limitation are not merely procedural but substantive in their operation; they create a bar to legal remedies after the prescribed period is elapsed. The law of limitation does not confer any right upon a litigant but strictly regulates the exercise of existing rights within fixed time limits. Once the statutory period expires, a vested right accrues in favour of the opposite party, and such right cannot be extinguished or curtailed unless the conditions prescribed for such extinguishment are fully satisfied in both letter and spirit. It has also been repeatedly held that the law of limitation is to be strictly applied and cannot be relaxed on equitable considerations or sympathetic grounds[31]. In this context, therefore, the application under Section 12(2), C.P.C of respondent No.1, being filed far beyond the prescribed limitation, was not only time-barred but also devoid of any plausible justification for condonation of such inordinate delay. The prolonged silence spanning over twenty years, despite active participation in execution proceedings and filing of multiple objections, unmistakably shows that the application was an afterthought and legally incompetent.

9. Viewed holistically, the plea of respondent No.1 is clearly barred by the doctrine of election, both factually and legally. Having consciously chosen to pursue his objections within the MLR-123 framework and to institute a civil suit in 2003 which travelled through appeal, revision, and even to the Supreme Court, respondent No.1 had unequivocally elected one remedial course. He obtained a remand order on 17.11.2021 directing the authorized officer to examine his objections, yet he deliberately abstained from joining those post-remand proceedings. Instead, he later sought to reopen the entire matter through a collateral application under Section 12(2), C.P.C, challenging the very decree that he had long treated as operative in execution and appellate fora. Such inconsistent conduct offends the settled principle that a litigant who has availed one of two inconsistent remedies and derived benefit therefrom is estopped from subsequently pursuing another inconsistent route. The doctrine of election, grounded in equity and judicial discipline, prohibits a party from approbating and reprobating in the same cause. Respondent No.1's prolonged participation in execution proceedings, coupled with his abstention from post-remand inquiry and belated recourse to Section 12(2) after more than two decades, reflects a conscious waiver of that remedy. His subsequent attempt amounts to an abuse of process and is legally untenable, as finality had already attached to the decree under MLR-123. Consequently, his plea stands rejected, being hit by the principles of election and estoppel by conduct in judicial proceedings. Guidance in this regard is taken from the dictum of the apex Court in Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others[32] holding that: "

8. Heard the counsel and perused the record. We have examined the contents of the application under section 12(2) C.P.C. 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 C.P.C. 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 then 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 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 II, rule (2) C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order, 1984 and principles of res-judicata as articulated in section 11, C.P.C. 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 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 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 IX, rule 13, C.P.C. and also an application under section 12(2), C.P.C. 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 gives 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, C.P.C.) and or where one of the proceeding is taken to its logical conclusion then other pending proceeding for the similar relief may be hit by principles of res-judicata. Giving choice to elect remedy from amongst several co-existent 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 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 co-existent remedies...." In a most recent pronouncement of the Supreme Court of Pakistan in the case of Qazi Mumtaz Hussain and others v. Government of Sindh through Secretary Revenue and others[33], the apex Court has reaffirmed the rule in the following words: "

5. Indeed the jurisdiction of the Civil Court under the special circumstances could be exhausted but not in a case where the appellant and/or a litigant has attempted a forum other than the Civil Court, as in this case, by not only filing declaration under MLR 115 but also when the Deputy Land Commissioner Tharparkar, after assuming lawful jurisdiction, resumed the excess land; the appellants under the hierarchy of 1977 Act invoked the jurisdiction of Land Commissioner Mirpurkhas Division by filing their respective appeals which were taken to their logical end. By applying the principle of Doctrine of Election the appellants cannot be permitted to have another bite of the cherry by invoking original jurisdiction of Civil Court for a similar recourse. As per the doctrine of election a person aggrieved of an order/judgment may have a host of remedies to challenge the same but he shall have to elect one of those remedies and after choosing one he may not avail another remedy

2. Thus, the appellants themselves have chosen to be ousted from availing the jurisdiction of Civil Court long back when they opted to invoke the jurisdiction in pursuance of 1977 Act."

10. As a sequel to the foregoing discussion, it is manifest that the impugned order has been passed against the law and in disregard of the settled principles, thereby warranting interference by this Court in the exercise of its jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Consequently, the petition in hand is allowed and the impugned order is set aside, with no order as to costs. MH/211/P Petition allowed. [1] Page 18 [2] Page 23 [3] Page 25 [4] Page 26 [5] Pages 29 & 30 [6] Page 32 [7] Page 33 [8] Page 37 [9] Page 39 [10] Page 58 [11] Page 52 [12] Page 53 [13] Page 55 [14] Page 59 [15] Page 63 [16] Page 68 [17] Page 70 [18] Page 74 [19] Page 78 [20] Page 84 [21] Page 87 [22] Page 93 [23] Page 97 [24] Page 99 [25] Page 101 [26] Page 112 [27] Page 115 [28] Page 129 [29] Paged 133 [30] Page 142 [31] Khushi Muhammad through LRs and others v. Mst. Fazal Bibi and others (PLD 2016 SC 872) [32] PlD 2018 SC 828 [33] 2025 SCMR 939