The provisions of Order IX Rule 4 CPC provide remedies to an aggrieved person i.e. either to bring a fresh Suit/Application or apply for an order to set the dismissal aside.

 The provisions of Order IX Rule 4 CPC provide remedies to an aggrieved person i.e. either to bring a fresh Suit/Application or apply for an order to set the dismissal aside. Once a litigant exhausts either of remedies, being unsuccessful he is not permitted 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. As in terms of law he could pursue the remedy which was initiated and exhausted first or earlier in point of time.

The interesting aspect of Order IX Rule 4 CPC is that this is one of very few exceptions envisaged by the provisions of CPC that even in case of dismissal of a Suit/Application, the law equips the Plaintiff/Applicant to either initiate fresh proceedings or seek setting aside of order for dismissal under rule 2 ibid. Order of learned Trial Court dated 07.09.2021 holding that the second Application of the Petitioner under section 12(2) CPC was not maintainable, (though on different reasoning) is correct. There is another aspect in the matter i.e. had Petitioner elected to opt first the remedy of refiling of the Application under section 12(2) CPC, the Petitioner could have only brought fresh Application only subject to limitation as envisaged by the provisions of Rule 4 of Order IX CPC.

It must be borne in the mind that a litigant might have a right which was otherwise enforceable, loses the said right to the extent of its enforcement, if it is found by the Court of law that its case is hit by limitation. In such a situation, the right remains with the party, but such party cannot enforce it and if the litigant aggrieved did not approach the appropriate forum within the stipulated period, though the grievance remains alive but it cannot be redressed because if on one hand there was a right with the party which could have enforced against the other, but because of principal of limitation, the same right then vests in favour of opposite party.

Civil Revision No. 216 of 2022

Mst.Kishwar Sultana Versus NizamudDin etc.