Mst. ZUBAIDA BEGUM vs Mst. IRSHAD BIBI

ORDER

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question the order dated 4-5-1991 passed by the, learned Civil Judge, Lahore, whereby the plaint in a declaratory suit filed try the petitioners under Order V1I, Rule 11, C.P.C. was rejected, 2 Biriefly, the facts are that the petitioners' , predecessor-in-interest claiming to be the owner of Property No. S-50-R-47, Lakhshami Mansion, Hall Road, Lahore, filed a suit for declaration challenging therein the order dated 8-1-1986 of the learned Rent Controller directing eviction of respondent No.2 herein from the property in dispute. It is stated that the petitioners were also impleaded as party to the suit during its pendency. The petitioners also filed objection petition under Order XXI read with rules 97 and 100, C.P.C., but the same was dismissed by the learned Rent Controller vide order dated 2-2-1988. The petitioners failed to challenge that order and instead filed a declaratory suit but the plaint was rejected.

3. Learned counsel for the petitioner argued that since the learned Rent Controller refused to exercise his lawful authority vide order dated 2-2-1988 dismissing the objection petition filed by the petitioner, he had no option but to file the suit which was competent in the facts and circumstances of the present case. It is further argued that the petitioner was not a party to the ejectment proceedings and that the order of ejectment was obtained through fraud and misrepresentation.

4. The petitioner has not placed on record a copy of the plaint of the declaratory suit to ascertain the basis on which it was filed. It is, however, well settled that under section, 12(2), C.P.C., every Court or Tribunal has inherent jurisdiction to rescind or recall a void order passed by itself if the same has been obtained through fraud etc. A stranger to the proceedings can also file an objection petition if he is aggrieved with the order of the Rent Controller or file an application under section 12(2), C.P.C. to recall or review the order allegedly obtained by fraud.

Here the petitioner opted to file an objection petition before the Rent Controller, which was admittedly dismissed. If the petitioner was aggrieved with the said order, he should have challenged the same before the appropriate forum through appropriateproceedings, but he failed to do so. The petitioner, however, filed a separate suit in which the plaint was rightly rejected under Order VII, rule 11, C.P.C. Clearly, the suit was also barred under rule 103 of Order XXI, C.P.C.

Furthermore, it is well settled that once the litigant opts to avail a particular remedy, the other remedies are deemed to have been waived. Refer FA. Khan v. The Government of Pakistan (PLD 1964 SC.520), Mir Salah-ud-Dm v. Qazi Zaheer-ud-Din (PLD 1988 SC 221) and Mst. Fehmida Begum v. Muhammad Khalid and another (1992 SCM R 1908).

In view of the above, the writ petition fails and is hereby dismissed in limine.