2023 CLC 1349
An Application under section 12(2) CPC is to be filed within a period of three years and in the instant case, the period of three years commenced from the date of knowledge i.e. 29.07.2016 when the Petitioner filed her first Application under section 12(2) CPC. The condition precedent for refiling the same was subject to limitation available to the Petitioner under Order IX rule 4 CPC. If the second suit or application is not filed within the period of limitation, then obviously such proceedings will be hit by provisions of section 3 of Limitation Act, 1908.
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.
Ignorance, negligence, mistake or hardship did not save limitation, nor does poverty of the parties and as held by the Hon’ble Supreme Court of Pakistan, the law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and is to be strictly complied with. Statutes of limitation by their very nature are strict and inflexible. The Act does not confer a right it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly.
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.
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