Appeal Dismissed by Islamabad High Court, Islamabad on Ground of Doctrine of Election
Islamabad 29-05-2024: In a recent development on maintainability of civil appeal, the Islamabad High Court, Islamabad delivered the landmark judgment explaining the Doctrine of Election and its effect on maintainability of suit as well appeal. The Honourable Single Bench of Islamabad High Court, Islamabad presided over by Ms. Justice Saman Rafat Imtiaz while deciding [RFA. No. 149 of 2018] observed that the appellants filed a Regular First Appeal against the judgment dated 15-09-2018 of the Civil Judge 1st Class (West), Islamabad, which dismissed their suit for possession. The appellants claimed their boundary walls were demolished without authority, leading to a suit dismissed due to lack of evidence and the statute of limitations. The trial court treated the suit under Section 9 of the Specific Relief Act.
It is further observed by Honourable Court that the Section 9 of the Specific Relief Act reinstates possession without proof of title, whereas Section 8 provides remedies to possessors beyond ownership. The Lahore High Court in "Mehran Bibi vs. Sarwar Khan" clarified that claims based on possession fall under Section 9, and those based on title fall u/s 8. The appellants' claim, grounded on allotment letters, was deemed title-based, thus u/s 8. The respondent's counsel argued that Section 8 suits do not require a declaration of title, suggesting "entitled to possession" implies an entitlement to ownership. The trial court incorrectly dismissed the suit u/s 9, ignoring the 12-year limitation period u/s 8.
The Trial Court erred by not addressing the maintainability of the suit under the Cooperative Societies Act, specifically Sections 54 and 70, which mandate resolution within a cooperative framework. The appellants engaged with the Registrar under Section 54, but the delay in appointing a nominee justified their interim suit filing. This Doctrine of Election requires choosing one remedy from available options, preventing multiple redressals for the same issue, ensuring efficiency and finality in legal proceedings. Finally it is held that the appeal is dismissed, affirming the Trial Court’s decision and reinforcing the procedural and jurisdictional principles involved.
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