The legal doctrine of election, rooted in fundamental principles of jurisprudence, is the act of choosing between two or more remedies or legal options available to address a particular issue or dispute. According to the 11th Edition of Black’s Law Dictionary, “Election” is defined as: “”the exercise of choice; particularly, the act of selecting from among various available rights or remedies in a manner that prohibits the utilization of their alternatives.” Scope of its application can be determined under the heads of election of remedies, forum and pleadings which are discussed hereinafter.
Doctrine of Election of Remedies:
Principle of election of remedies has been referred in a number of judgements involving various propositions which are discussed below;
Filing of either restoration application or fresh suit
In Kishwar Sultana’s Case, the petitioner filed an application under section 12(2), C.P.C. to set aside the judgement and decree dated 02.01.1975. The trial court dismissed her application due to non-deposit of process fee under O. IX, R. 2, C.P.C..
Petitioner assailed said order by filing application for restoration. Vide order dated 20.11.2020, said restoration application was dismissed as time barred. Petitioner did not further assail said order. She opted to file a second application under section 12(2) on 19.12.2020.
Trial court dismissed said application on preliminary stage considering it not maintainable because petitioner did not assail the order of dismissal of the restoration application against first application of 12(2) which has attained finality.
The proposition here is that whether this second application U/S 12(2) was maintainable or not in present scenario. It is admitted fact that the petitioner opted to file a second application U/S 12(2), and not to challenge the dismissal order of restoration application against dismissal of first application of 12(2). Filing of second application U/S 12(2) is permissible only under O. IX, R. 4, C.P.C.
An aggrieved person has recourse under the provisions of O. IX, R. 4, C.P.C., i.e. either apply for an order to set the dismissal aside or to bring a fresh Suit/Application. Once a litigant exhausts either of the options, being unsuccessful he is not allowed to have another bite at the cherry in an attempt to go for second remedy.
As under the doctrine of election of remedies, once aggrieved person had acted and exhausted either of the two remedies, he is deemed to have given up and forfeited his right to the other remedy. Law permits to pursue the remedy only which was availed first or earlier in point of time.
If the petitioner chooses to file fresh application U/S 12(2) he could have only avail said option and the other option of restoration of first application becomes barred under this dogma.
Mst Kishwar Sultana V Nizam-Ud-Din (Deceased) through legal heirs and others 2023 CLC 1349
Muhammad Boota V J.F.C 2019 CLC 640
Messrs Shell Pakistan Limited through legal affairs Advisor and Attorney V Aurangzaib Khan 2005 PLC 424
Ghulam Sarwar through Attorney V Mansoor Sadiq Zaidi and 4 others PLD 2008 Karachi 458
Tanveer Jamshed and another V Raja Ghulam Haider 1992 SCMR 917
Mst Fehmida Begum V Muhammad Khalid and another 1992 SCMR 1908
Petitioner i.e. Telematics filed writ to challenge the dismissal order of his application under O. IX R. 13 which was filed after dismissal of his application under section 12 sub-sec 2 C.P.C. Court held that a party is precluded to another remedy after being unsuccessful in in a previous one as the issue becomes a res-judicata.
M/s Telematics Master (Pvt.) LTD through Chief Operating Officer V M/s Pak Welcome Trader (Pvt.) LTD. Through Chief Executive. 2022 MLD 1961
Partition proceeding
In Sakhi Muhammad’ Case, the respondents firstly made application under section 135 of the Land Revenue Act, 1967 before Tehsildar/Assistant Collector, Chakwal for partition of property i.e. khewat no. 539/1352, khasra no. 1195. Assistant Collector declined it. Deputy Commissioner/District Collector, Chakwal also dismissed the appeal vide order date 08.03.1993 considering the same not maintainable being partial partition application. On dismissal of appeal, the respondents did not assail it further, rather they instituted a civil suit.
It is settled principle of law that before initiating any legal proceeding to recourse, the litigant has to choose from amongst host of actions or remedies available under the law. The party has the option to start and pursue any one of the numerous concurrent co-existing proceedings/actions or remedies from a forum of competent jurisdiction.
However, once that option has been used and an election has been made, that party is not permitted to start another proceeding to seek a remedy or relief that differs from what would be claimed or achieved by adopting another proceeding/action and/or remedy. In legal parlance, it is recognized as “doctrine of election”.
Sakhi Muhammad and others V Haji Ahmed and others 2023 CLC 380
Jubilee General Insurance Co.Ltd. Karachi V Ravi Steel Company, Lahore. PLD 2020 SC 324
Choice to file either appeal or application 12(2)
When an appeal is filed against an ex-parte judgment before a higher forum; an application under O. IX, R. 13, C.P.C.; and an application under section 12(2), C.P.C. seeking the setting aside of an ex-parte judgment before the same forum are filed, all with the intention of obtaining a substantially similar, if not identical i.e. relief of annulment or setting aside of ex-parte order/judgment.
The principle of res-subjudice (section 10, C.P.C.) may affect multiple and simultaneous proceedings, and/or where one of the proceedings is taken to its logical conclusion, other pending proceedings for the similar relief may be hit by the principle of Res-judicata. Generally, the court gives the suitor the option to select one of the available remedies concurrently invoked against one and the same ex- parte order/judgment.
Giving someone the option to select one remedy out of concurrent or coexisting options does not restrict or impede their ability to select the one that best fits their needs in the given situation. Rather, it serves to prevent them from pursuing multiple or successive remedies for a single wrong or contested action before the appropriate forum of original or appellate jurisdiction. This rule of prudence has been developed by law enforcing institutes to reduce the number of proceedings.
The options remain available till selection of one. Once the choice is made then the party generally, cannot be allowed to hop over and shop for one after another coexistent remedies.
Courts of law structured and founded the “doctrine of election” from the well-recognized principles of waiver and or abandonment of a known right, claim, privilege or relief as contained in O. II, R. 2 of “C.P.C.”, principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order, 1984 and principles of res-judicata as enshrined in Section 11 of “C.P.C.”.
This dogma apply both the original action/proceedings as well as to defences and so also to challenge the outcomes in shape of order, decree/judgement. In civil litigation, against decision i.e. decree/judgement etc., there are several courses available i.e. under O. IX, R. 13 (if proceedings are ex-parte), section 47 (objection to execution), section 114 (by way of review of an order), section 115 (revision), under O. XXI, R. 99 to 103, C.P.C. and section 96, C.P.C. (appeal against the order/judgment) etc.
It is permissible to invoke more than one remedies simultaneously against an ex-parte order/judgment. However, Once judgement debtor has chosen one out of available remedy, he is not allowed subsequently to venture into other concurrently or coexisting available remedies.
Trading Corporation of Pakistan v. Devan Sugar Mills Limited and others PLD 2018 SC 828.
Amsons Taxtile Mills (Pvt.) Limited Attorney V Federation of Pakistan through Secretary/ Chairman and 5 others 2022 PTD 212
Lucky Cement Limited V Federation of Pakistan 2021 PTD 835
Muhammad Chiragh ud din Bhatti V The province of West Pakistan 1971 SCMR 447
Filing of application U/s 12(2) after CPLA
The father of the applicants, Muhammad Israeel and Daulat Khan, namely Ameer Khan, challenged the same order by filing a CPLA before the Honorable Supreme Court of Pakistan. This raises the question of whether Muhammad Israeel and Daulat Khan can submit an application under Section 12(2) of the Civil Procedure Code to contest the order dated 05.03.2009 after their father’s CPLA against the same order was dismissed.
The answer is clearly ‘No’ because there are instances where multiple remedies are available to a party for addressing their grievance, and it is the party’s discretion to choose among them. After the dismissal of Writ Petition No. 3257/2009, Ameer Khan, the predecessor of the current applicants, elected to challenge the order dated 05.03.2009 on higher forum rather than before this Court. Therefore, neither he nor his descendants can now seek to revisit the same matter in this application, as it would contravene the doctrine of election established by the Honorable Supreme Court of Pakistan in various cases.
Muhammad Ishaq and 156 others V Member ( Consolidation) Board of revenue and 12 others 2021 CLC 884
Fresh Suit is barred after dismissal of application 12(2)
In Muhammad Idrees Abbasi’s case, plaintiff filed a fresh suit to get determined his right against the defendant who has obtained a decree from the court in same lis against plaintiff In previous suit against which, the application U/s 12(2) of plaintiff has already been dismissed.
The court held that the plaintiff has already utilized a remedy under Section 12(2) of the Civil Procedure Code in terms of doctrine of election to contest an ex parte and collusive decree, which they have disputed based on allegations of fraud and misrepresentation. Consequently, the plaintiff is precluded from seeking a concurrent decree concerning the same property, for which the rights of the parties have already been adjudicated through a judgment and decree. Therefore, based on the aforementioned legal interpretation, the lawsuit is not sustainable.
Muhammad Idrees Abbasi V Syed Akbar Khan 2022 CLC 1322
Filing of tax references or rectification application
Under section 133 of the Income Tax Ordinance, any party feeling aggrieved of the order of ATIR is permitted to submit a tax reference within 90 days of receiving the disputed decision. Additionally, the taxpayer retains the right to make a rectification application to address any errors or mistakes in the decision, as per Section 221. However, once a matter arising from the ATIR’s decision has been contested through a tax reference in the High Court and has reached a final conclusion, the applicant cannot subsequently revisit the same issue using an alternative remedy not pursued earlier.
Allowing such a practice would contradict the principle of ‘Doctrine of Election’, which prohibits litigants from reopening matters merely to get favorable outcomes which they could not receive in previous proceeding. In this case, the applicant chose to pursue tax references and also filed rectification applications. The Lahore High Court dismissed the tax references as withdrawn, considering that the jurisdictional question had already been settled. Therefore, the department cannot now reopen the issue through rectification applications, especially after the dismissal of the tax references.
Commissioner Inland Revenue RTO Lhr V Messrs Pakistan WAPDA Foundation Lhr 2023 PTD (tribe.) 424
Validity of plural remedies; An exception to general rule
The general rule is that once a person invoked one remedy he shall be deemed to have given up his right to other options, unless the adjucating order of first authority leaves scope for approaching to the other forum like civil court etc to exercise a second remedy.
Sakhi Muhammad V Haji Ahmad 2023 CLC 380
Mir Salah-ud-din V Qazi Zaheer-ud-din PLD 1988 SC 221
Doctrine of Election of Forum:
There are some precedents which show that the principle of election is not only applicable to the extent of remedies but it is applicable to the forums as well. These case laws are discussed below;
Election of adjudicating authority in Gas utility matters
To select a forum, the only question is whether the consumer or the gas utility company, as legal entities, have the option to choose between filing a complaint under the OGRA Ordinance, 2002, or the Gas (Theft Control and Recovery) Act, 2016. While the OGRA Ordinance, 2002, doesn’t offer any remedy to the gas utility company except in specific cases outlined in the OGRA Complaint Resolution Procedure Regulations, 2003. Whereas, the Gas (Theft Control and Recovery) Act, 2016, allows the gas utility company to directly address issues regarding billing, metering, outstanding dues, or recovery as an aggrieved party.
In this situation, the doctrine of election of remedy applies, giving the consumer or the gas utility company the choice to select the most suitable remedy for their circumstances to prevent multiple or successive legal actions. Once a remedy is chosen, the party typically cannot seek out additional remedies for the same issue, as this would lead to unnecessary legal complexity and redundancy.
Considering these legal principles, it is established that when a consumer or gas utility company decides to pursue action through the Gas Utility Court under the Gas (Theft Control and Recovery) Act, 2016, they are precluded from subsequently approaching the OGRA authorities following the Gas Utility Court’s findings, as the principle of res judicata applies in such circumstances. However, it’s important to note that the principle of res judicata does not apply to the Gas Utility Court based on the findings of OGRA.
Messrs Sui Southern Gas Company Limited through Attorney V Oil and Gas Regulatory Authority Through Chairperson and 2 others PLD 2021 Islamabad 378
Correction of revenue record by civil court or revenue authority
In this case, petitioner opted to file a civil suit to challenge the vires of Fard Badar no. 34 dated 18.01.2010. The revenue authorities up to Board of Revenue refused to interfere in the order dated 18.01.2010 passed with regards to Fard Badar considering that the lis is pending in the civil court of ultimate jurisdiction. In this scenario, ‘Doctrine of Election’ comes into play i.e. the exercise of choice especially the act of choosing from several remedies or rights to be availed from different forums in the manner that precludes from approaching to other remedies or right of other forum.
Irfan Ullah Khan V Province of the Punjab 2020 CLC 594
Doctrine of Election of Pleadings:
Law does not permit contradiction in pleas of the same litigant regarding same facts and cause. Under the doctrine of election, it bars the raising of contrary stance not only in same pleading but also in subsequent round of litigations. Some illustrative case laws on this point are referred below.
In Muhammad Raqeeb’s case, the litigation triggered from the termination order dated 01.06.2010 issued by the joint director (Admin). Appellant challenged that order through W.P. No.86-B/2010 to declare the termination from service, and refusal of respondents to give him regular status as illegal. In said round of litigation, the petitioner remained unsuccessful. Now, the appellant asserts that he is a permanent employee and seeks pensionary benefits. This indicates that he was not a regular employee but functioning as a project employee. Pursuing regularization via the High Court under the Khyber Pakhtunkhwa (Regularization of service) Act 2009 suggests he was aware of his non-regular status.
The appellant’s employment status was previously examined and settled up to this Court, making re-examination unwarranted, especially after the dismissal of a review petition. Article 114 of the Qanun-e-Shahadat Order, 1984, embodies the principle of estoppel, preventing one from denying a previously established truth. The appellant’s pursuit of regularization at the High Court invokes the doctrines of estoppel, election, and qui approbat non reprobat. Earlier judgments established the contractual nature of employees’ duties, precluding relief of regularization. The doctrine of finality, enclosed in the maxim “Interest reipublicae ut sit finis litium,” dictates that litigation must end in the interest of society. Res judicata, under section 11 of the Code of Civil Procedure, 1908, reinforces the principle that judicial decisions should attain finality.
Once a judgment achieves finality between the involved parties, it cannot be revisited unless fraud, mistake, or jurisdictional issues are alleged and proven. The primary aim of this principle of law is to uphold the administration of justice and prevent the misuse of legal procedures by ensuring that outcomes of litigation remain conclusive. Additionally, it aims to prevent the multiplicity of legal proceedings stemming from the same cause of action. In the present case, the dispute has effectively reached finality, and even under the doctrine of past and closed transactions, the matter cannot be reopened in a subsequent round of litigation. Doing so would constitute an abuse of the court’s process.
Muhammad Raqeeb V Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar. 2023 SCMR 992
Decision of Fauji Sugar Mills’ case states that stance of the appellant besides being contradictory is self-destructive. A party is debarred from taking inconsistent pleas, which amount to prejudice the right of other party specially and are self-destructive in themselves.
Fauji Sugar Mills through General Manager V Mehmood Ahmed 2006 PLC 630
Exceptions to doctrine of election of pleading
Though principles of estopple, qui aprobate non repprobate etc. bars contradictory pleas and stance, however, there are certain exceptions where the variations in pleadings are still allowed. These are discussed below;
Variations allowed if does not prejudice opposite party
Doctrine of election prohibits contradictory pleas but it does not bar alternate pleading. A person can rely on multiple alternative sources of title without restriction. It is important to differentiate between alternative cases and inconsistent ones. If two facts could both feasibly occur, they aren’t compulsorily contradictory. Inconsistency arises when a plaintiff cannot verify both alleged facts as true, such as claiming a document is a forgery while also asserting its execution resulted from undue influence. However, presenting multiple sources of title isn’t contradictory; it’s a pleading in the alternative. Variations in a case are acceptable if the opposing party is aware of them and not prejudiced by the change, but this doesn’t mean substituting one cause of action for another. The court can allow variations within the cause of action if there’s no harm to the opposing party.
Budhi and others V Ghulam Shah PLD 1963 SC 553
Inconsistent pleas allowed for strangers
A firmly established principle dictates that individuals who are involved in a transaction and possess firsthand knowledge of the true facts are prohibited from asserting inconsistent facts. However, someone who is not directly involved in the transaction, a stranger to it, may still present inconsistent pleas based on the same facts.
Mumtaz V Mian Khan PLD 1973 Lahore 47
Maxims pertaining to Doctrine of Election:
The principles outlined above are founded on legal maxims such as:
(a) Electio semel facta, et placitum testatum, non patitur regressum [A choice once made, and a plea witnessed intent shown, allows no going back],
(b) Electio semel facta non patilur regressum [An election once made cannot be recalled], and
(c) Electa una via, non datur recursus ad alteram [When one way has been chosen, no recourse is given to another].
(d) ‘allegans contraria non est audiendus” [which means when people make comments that contradict one another, they will not be heard]
Silver Star Insurance Company Limited, Lahore V Kamal Pipes Industries Lahore 2023 CLD 1342
Mst Anwar Mai V Ghulam Sarwar 2022 MLD 1112
