PLJ 1987
Present : muhammad ilyas, J NIAMAT KHAN and Another—Petitioners
versus
THE STATE Through ENDORSEMENT STAFF OF EVACUEE PROPERTY, Lahore and 5, Others—Respondents
Writ Petition No. 168-R/1979, dimissed on 15-3-1987
(i) Constitution of Pakistan, 1973 —
------ Art. 199-Subsequent writ petition—Delay in filing of—Effect of— Earlier writ petition dismissed for want of prosecution as wall as due to petitioners' failure to deposit process fee — Second writ petition, however, filed after about 5 years of passing of impugned order—Held : Time spent by petitioners in connection with earlier writ petition or application for restoration thereof not to be deducted from said period of five years—Held further : Petitioners being guilty of laches in matter of filing subsequent writ petition, same to deserve to be dismissed on such ground. [P. 340]C
(ii) Constitution of Pakistan, 1973—
------ Art. 199—Writ jurisdiction—Exercise of—Conduct of petitioner— Relevancy of—Petitioners* earlier writ petition dismissed for non-prosecution as well as for want of deposit of process fee—Petition for restoration thereof also dismissed in default—Another petition for restoration of writ petition subsequently withdrawn on filing of fresh writ petition—Held : Petitioners having not come v ith clean hands and they being also grossly negligent in invoking writ jurisdiction, High Court not to permit them to invoke constnunona! jurisdiction for second time—Second writ petition, held further, to fail due to culpable negligence on their part in matter of prosecuting first writ petition and petitions for restoration theseof and for coming to High Court with unclean hands. [P. 341]D & L
1984 CLC 1 !00 ref
. (iii) Constitution of Pakistan, 1973—
------- Art. 199 read with Civil Procedure Code, 1908 (V of 1908)—0. IX R. 4—Writ petition—Dismissal for non-deposit of process fee— -Effect of—Fresh petition—Competency of—Earlier writ petition dismissed (for want of prosecution and also) due to petitioners' failure to deposit process fee—Held : No peViod of limitation (though) prescribed for filing constitutional petitions, any (fresh) petition suffering from defect of laches to be dismissed on that ground—Held further : While examining question of limitation or laches, period spent by party at fault in connection with earlier petition not to be deducted. [P. 340]B
PLJ 1987 Lah, 103 and AIR 1929 Nag. 219 ref,
(hr) Constitution of Pakistan, 1973—
—-Art. 199 read with Civil Procedure Code, 1908 (V of 1908)—O. IX, R. 9—Writ petition —Dismissal in default of—Fresh petition—Competency of — Earlier writ etition dismissed in dsfauit — Held : Principles of Code of Civil Procedure being applicable, petitioners to make petition for restoration of writ petition and not to file fresh (writ) petition — Application for restoration filed by petitioners dismissed by High Court while another subsequently made withdrawn by them on filing of fresh writ petition—Held : Subsequent writ petition to be barred by O. IX, R. 9 of CPC. ,P. 340]A
Mr. Muhammad Usman Khan, Advocate for Petitioners. Mr. S. M. Abdul Wahab, Advocate for Respondent No. 2, Nemo for others. Date of hearing : 15-3-1987.
judgment
This writ petition is directed against order, dated the 28th June, 1974, passed by Malik Jehangir Khan, Additional Comm'ssioner (Revenue), Lahore Division/Settlement Commissioner, Lahore. Before making this writ petition, the petitioners, Nemat Khan and another, filed Writ Petition No, 43-R/75 against the above order. That writ petition was dismissed on 6th May, 1975, for waot of prosecution and due to the petitioners' failure to deposit process fee. They moved a petition (C. M. No. 3/75) on 21st June, 1975 for restoration of the writ petition but that too was dismissed in default on 3rd July, 1975. Thereafter, they submitted another petition (C. M. No. 5/79) for restoration of the writ petition but it was withdrawn on 28th February, 1979. Before its withdrawal, the petitioners had filed the instant writ petition on 7tb February, 1979.
2.
With reference to absence of the petitioners on the date
on which their earlier writ petition was dismissed in default, it was urged by
learned counsel
for legal representatives or respondent No.
2, tyst. Ghosen, that the writ petition in hand was not
maintainable. His plea was that since the earlier writ
petition was not got restored by the petitioners, they
could not file the instant writ petition.
For this proposition, reliance
was placed by him on Order IX, rule 9, of the Code of Civil Procedure.
As regards
the failure of the petitioners to deposit process fee in their
first writ
petition, argument of learned counsel for the legal representatives of
respondent No. 2 was that they could file a fresh writ petition if the
same did
not suffer from the defect of laches but since the present
petition did suffer from that
defect it was not entertainable. In
this connection, he relied upon Order IX,
rule 4, of the Code of Civil
Procedure. In reply,
t was submitted by
learned counsel for the petitioners that since the second petition for restoration of their former writ petition was withdrawn
by petitioners, there was
nothing wrong with the maintainability of the instant writ petition.
3.
I! was not disputed
by learned counsel
for the petitioners that
principles of the Code of Civil Procedure are applicable to writ petitions also.
On the dismissal of their earlier writ
petition in default, the petitioners could make a petition for
restoration thereof, under Order IX, rule 9, of the Code of
Civil Procedure, but could not file a fresh writ petition. They did make two petitions for restoration
of their earlier writ petition of which the
first one was dismissed in default and
other one was withdrawn by them
after filing of the writ petition in hand.
By so doing, they ran a great
risk against the provisions of Order IX, rule 9, of the Code of Civil
Procedure which did not permit them to
file a fresh writ petition. I therefore, agree with
learned counsel for legal
representatives
of
respondent No. 2 that this writ petition is barred by Order IX,
rule 9, of the Code of Civil Procedure.
4.
Having dealt with default of the
petitioners in the matter of entering appearance before this Court to prosecute their
first writ petition, I now advert to their failure to deposit process fee
in that writ
petition. If a suit is dismissed for non-deposit of process fee, a fresh suit can be filed under Order JX,
rule 4, of the Code of Civil Procedure,
within the period of limitation. No period
of limitation has been
prescribed for Constitutional
petitions. However, if any such
petition suffers from the defect of laches it can be dismissed on that ground. While examining the question of limitation
or laches, period spent by a party at
fault in
con
nection
with an earlier suit or writ petition cannot be deducted. It was so held io Chintaman \. Kisan and another (AIR 1929 Nagpur 219) which was followed by me in
the Aziz Din and another v. Qadir Bakhsh and 2 others (PLJ 1987 Lahore
103). This second writ petition was
filed by the petitioners after
about 5 years of the passing of the impugned order. Obviously, therefore, it suffers from the defect of laches. As stated above, ime Spent
by the pstitioners in connection with their earlier writ petition or the applications for restoration
thereof cannot be deducted
from the said period of
about 5 years. I, therefore, agree
with learned counsel
for legal representatives of
respondent No. 2 that the petitioners have been guilty
of laches in the matter of filing the instant writ petition
and, there-
tore, it deserves to be dismissed on that ground,
5. Even if the principles of Code of Civil Procedure are not applied to this Constitutional petition, it would not be entertainable for other reasons. Constitutional jurisdiction is of discretionary nature and the petitioners were extremely negligent in invoking that jurisdiction. This is evident from ihs fact that, their earlier writ petition was dismissed in default and petition for restoration thereof was also dismissed for want of prosecution.. They then made another petition for restoration of the first writ petition but the same was withdrawn after filing the writ petition in band. Thus, they were not only grossly negligent but also played hide and seek with this Court. In other words, while approaching this Court with the instant writ petition they did not come with clean hands. They, in fact, attempted to circumvent the law. In view of this conduct on theii part, therefore, they cannot be permitted to invoke the constitutional jurisdiction of this Court for the second time. In Fazal-ul-Rehman Mahmood and another v. Additional Settlement Commissioner (Land) and 2 others) 1984 CLC 1100) (Lahore) it was held by a Division Bench of this Court (of which I was also a member) that if a party is not prompt and diligent in pursuing the constitutional remedy, the Court can refuse to exercise constitutional jurisdiction in his case. Second writ petition of the petitioners, which is the instant petition, should, therefore, fail due to culpable negligence on their part in the matter of prosecuting the first writ petition and the petitions for restoration thereof, and for coming to this Court with unclean hands.
6. Looked from any angle, this writ petition is not entertainable. It is, therefore, dismissed with costs, without expressing any opinion on riierits.
(TQM) Petition dismissed.