2000 PLP 2831 (YLR)

Representation

• ‑‑‑‑O.XXIII, Rr.l & 3‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Writ petition, withdrawal of‑‑‑Appeal before Supreme Court‑‑‑Pending writ of quo warranto filed by both petitioner/appellant and co petitioner, one of the respondents filed application before High Court that if co petitioner was promoted to any higher post, he would not file any appeal or application against order of promotion‑‑‑High Court on the prayer of respondent, dismissed petition as having been withdrawn observing that counsel for petitioner did not want to press petition in view of the application of respondent‑‑ Petitioner in High Court alongwith co- petitioner aggrieved by said judgment of High Court had filed appeal before Supreme Court‑‑‑Validity‑‑‑Application filed by respondent before High Court only pertained to matter relating to co petitioner and not appellant who was one of the petitioners before High Court‑‑‑Writ petition filed by appellant/petitioner against respondent could not be dismissed as withdrawn on the basis of application filed by co petitioner because same did not pertain to relief sought by appellant/petitioner against the respondent‑‑ if any compromise in the matter existed it was arrived at between co petitioner and respondent and appellant/petitioner was not party to the same‑‑‑While passing order on the basis of compromise it was incumbent upon the Court to record compromise under R. 3 of O. XXIII, C. P. C., which had not been done in the case‑‑‑If counsel of appellant/ petitioner and co petitioner had made any statement regarding appellant/petitioner that would be of no legal consequence‑‑‑Supreme Court accepting appeal set aside order of High Court ` and remanded case with direction to decide the same afresh according to law after hearing the parties‑‑- Delay, if any, in filing appeal was condoned.
• M. Tabassum Aftab Alvi, Advocate for Respondent No. 1.
• Kh. Attaullah, Additional Advocate General for Respondents Nos. 2 and 3.
• Date of hearing: 21st December, 1999.
• 3. . It may be stated that there were two petitioners, one Raja Ghulam Shabbir and the other Andleeb Sahir Butt, the appellant herein, but it was recorded in the impugned order that the counsel for the 'petitioner' had no objection if the writ petition was disposed of. According to Mr. Ashfaque Hussain Kiani, Advocate, who was counsel for both the petitioners, Andleeb Sahir Butt and Raja Ghulam Shabbir, he did not consent to the impugned order. The appeal has been filed only by Andleeb Sahir Butt who was one of the writ petitioners in the High Court. The application filed by Raja Naveed Hussain, respondent, in the High Court only pertained to the matter relating to Raja Ghulam Shabbir and not Andleeb Sahir Butt, the appellant herein. According to the case of the appellant, the writ petition filed by him against Raja Naveed Hussain could not be dismissed on the basis of the said application because the asme did not pertain to the relief sought by the appellant against respondent No.1, Raja Naveed Hussain. It has been further submitted that it has incorrectly been recorded in the impugned order by the High Court that the counsel for the 'petitioner', i.e., Mr.Ashfaque Hussain Kiani, stated before High Court that he had no objection if the writ petition was dismissed as having been withdrawn. It is further the case of the appellant that he applied for the copies of some documents on 26‑3‑1999 which were supplied to him on 31‑3‑1999. But according to the copies issued to him, the application is stated to have been submitted on 27‑3‑1999 and copies applied for were also delivered to him on the same day, whereas on 27‑3‑1999 the copies were not ready for delivery because that had not been signed by the Copying Officer and the same were delivered to him on 31‑3‑1999; as on 28‑3‑1999 to 30‑3‑1999, the Court was closed due to Eid holidays. In support of his contention, the , appellant filed an attested copy of the register which pertains to the issuance of copies; according to said register, the copies were delivered to the appellant, herein, on 31‑3‑1999. In view of the date recorded by him on the said register, obviously, there is contradiction in the dates of the delivery of the copies, one mentioned in the copies itself and the other which was allegedly written by the appellant at the time of delivery of the copies. The appellant has contended that this contradiction is the result of connivance between the Copying Officer and the respondent so as to render the petition for leave to appeal filed by the appellant in this Court as time‑barred. There is an. application for condonation of delay enumerating all these facts which are also supported by an affidavit. It has been further contended by the appellant that the writ petition filed in the High Court so far as the appellant was concerned, would be deemed to be still pending and the same could not be regarded to have been dismissed as having been withdrawn, especially so when the application suggesting compromise was made in the context of Raja Ghulam Shabbir and not that of appellant. He has submitted that if the limitation is reckoned from the date of the delivery of the relevant copies, i.e., 31‑3‑1999, the petition for leave to appeal is within time. In alternative, he has submitted that in case the limitation is reckoned from 27‑3‑1999, the alleged date of delivery, the delay in filing the appeal may be condoned in the circumstances listed above.
• 4. In reply, Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for respondent No.1, has controverted the arguments on behalf of the appellant. He has argued that in fact the copies were prepared and delivered to the appellant, herein, on 27‑3‑1999 as is evident from the attested copy of the register which the appellant had also signed. He has argued that in fact the appellant signed the said register on 27‑3‑1999 but he again came to the Copying Clerk on 31‑3‑1999 and blotted his earlier signature and resigned the said register mentioning 31‑3‑1999 as the date of delivery of the copies. He has submitted. that in fact this was subsequently done by the appellant so as to overcome the bar of limitation. The learned counsel has further submitted that it was incumbent upon the appellant to implead the learned Judge of the High Court, who passed the impugned order, the Deputy Registrar and the Copying Clerk as parties in the present appeal because certain allegations have been levelled against them in this Court. He has submitted that without their impleadment, the appeal filed in this Court is incompetent. The learned counsel has further submitted that the appeal is time‑barred by two days but there is no sufficient ground for the condonation of delay. The learned counsel has further contended that the impugned order. passed by the High Court was made with the consent of Mr. Ashfaque Hussain Kiani, Advocate, the counsel for Raja Ghulam Shabbir and Andleeb Sahir Butt, the appellant herein. Thus, according to the learned counsel, it would be deemed that the writ petition was dismissed as having been withdrawn in toto and not only to the extent of Raja Ghulam Shabbir. The learned counsel has submitted following authorities on the point that delay in filing the petition for leave to appeal in the instant case cannot be condoned.
• 6. Even otherwise, when no date was fixed for delivery of the copies to the appellant on 27‑3‑1999 and 28‑3‑1999 to 30‑3‑1999 were closed holidays, the appellant is entitled to the condonation of delay; because if the statement of the learned counsel for the appellant in the High Court is considered in the context of the application made by respondent No. 1, it could not be interpreted to mean that he had consented to the withdrawal of the writ petition on behalf of the appellant, herein. Thus. irrespective of the fact that an affidavit was filed by Mr. Ashfaque Hussain Kiani, Advocate, the counsel for the appellant in the High Court, that he did not make any statement before the learned Judge showing his consent for the dismissal of the writ petition, the fact remains that the writ petition, so far as the appellant is concerned, would be deemed to be still pending, in the High Court, especially so when it is not recorded in the impugned order that the writ petition is also dismissed even to the extent of the appellant, herein; M LIC impugned order, the word written by the Court is 'petitioner' and not the 'petitioners', which shows that the Court only considered the case of the c:c)‑petitioner and not that o~ the appellant. Even otherwise, when the prayer of respondent No.1 for disposing of the writ petition pertained to Raja Ghulam Shabbir, how the writ petition filed on behalf of the appellant, herein, could be dismissed on the basis of alleged consent of the counsel for the appellant.
• 7. We may also point out that in case of passing an order on the basis of compromise, it is incumbent upon the Court to record the compromise under Rule 3 of Order XXIII, C.P.C., which has not been done in this case. Thus, even if it is assumed that Mr. Ashfaque Hussain Kiani, Advocate, for the appellant. had made any statement regarding appellant, that would be of no legal consequence.

Headnotes / Summary

Judgment & Decree