P L D 2020 Supreme Court (AJ&K) 1 (PLP)

CH. MUHAMMAD IBRAHIM ZIA, C.J.-The titled appeal by leave of the Court has been directed against the judgment dated 12.06.2018, passed by the Azad Jammu and Kashmir High Court in Writ Petition No.1477 of 2017.

2. The facts forming the background of the captioned appeal are that the appellants, herein, filed a Writ Petition No.746 of 2017 before the Azad Jammu and Kashmir High Court on 28.04.2017. The respondents appeared and contested the writ petition by filing written statement. It is stated that during pendency of the said writ petition, official-respondents issued appointment order of private-respondents, herein, vide notification dated 09.05.2017. In order to meet the situation, the appellants, herein, moved an application for amendment in the writ petition which was allowed after receiving objections by the learned High Court vide order dated 19.06.2017. Thereafter, the amended writ petition was filed. It appears that some additions were made by the appellants beyond the permission granted, whereupon, the objection was raised from other side. In this state of affairs, the appellants moved an application for withdrawal of the writ petition with the permission to file fresh one. The learned High Court vide order dated 09.11.2017 allowed the application. In furtherance of acceptance of the application, amended Writ Petition No.1477/17 was filed on 13.09.2017. The order of grant of permission to file the fresh writ petition dated 09.11.2017 was challenged through appeal before this Court by respondents Nos.8 and 9, herein. This Court vide judgment dated 27.03.2018, rendered in Civil Appeal No.301/2017, accepted the appeal and set aside the order of the High Court dated 09.11.2017 with the direction to decide the application for withdrawal of the writ petition after seeking objections and providing fair opportunity of hearing to the parties through a speaking order. After remand of the case, the learned Hioh Court dismissed the amendment application as well as writ petition through impugned judgment dated 12.06.2018, hence, this appeal by leave of the Court.

3. Mr. Tahir Aziz Khan, Advocate, the learned counsel for the appellants after narration of necessary facts seriously objected to the impugned judgment of the High Court on the ground that in previous round of litigation this Court has remanded the writ petition with clear direction to decide the application filed for withdrawal of the writ petition after seeking objection and hearing the parties through a speaking order. The learned High Court passed the impugned order without adhering to the expressed direction of this Court and failed to properly attend the proposition rather under some misconception decided the amendment application and dismissed the writ petition, whereas, the High Court has already accepted the amendment application vide order dated 19.06.2017. Neither the amendment application was pending nor was required to be decided. In fact, in furtherance of the permission of amendment in the memo of writ petition, some contents beyond the permission were incorporated and for this reason the appellants while treating it as formal defect, filed an application for withdrawal of the writ petition to file afresh in accordance with the permission of the Court, however, neither this aspect has heen properly appreciated nor resolved.

4. Conversely, Sardar Karam Dad Khan, Advocate-General and Sardar M. R. Khan, Advocate, the learned counsel for the respondents submitted that the appellants failed to point out any formal defect in the application filed for withdrawal of the petition. Moreover, they played fraud with the Court and filed amended writ petition containing such material which was not part of the original writ petition nor allowed by the Court, hence, the learned Court has rightly dismissed the writ petition. He conceded that this Court previously remanded the writ petition with clear direction to the High Court to decide the application for withdrawal of the writ petition after seeking objections and hearing the parties.

5. However, at the end of day the learned counsel for the parties agreed that in the light of record and facts of the case, the only substantial formal defect is that the appellants while filing the amended writ petition inserted some contents beyond the permission of the Court. Such excessive contents can neither be legally made part of the writ petition nor on this ground the withdrawal of the writ petition is justified. In this state of affairs, three modes were available to the High Court; (i) either to dismiss the writ petition for non-compliance of Court permission in letter and spirits, (ii) deem the additional contents of amended writ petition as non-existent; or (iii) allow to file amended writ petition strictly according to the permission granted by the Court. According to learned counsel for the appellant the High Court should have adopted less stringent mode and allow the petitioners/appellants to file amended memo of writ petition, whereas, according to the counsel for the respondents the writ petition has been rightly dismissed.

6. We have heard the learned counsel for the parties and gone through the record. According to arguments, stated facts and record the petitioners/appellants sought amendment in the writ petition. The learned High Court vide order dated 19.06.2017 allowed the prayed amendment and directed for filing amended writ petition. It appears that while filing amended writ petition the appellants incorporated some text and averments which were neither part of the original writ petition nor within the scope of the permission granted by the Court. In this state of affairs, the learned counsel for the parties have rightly pointed out that there were three modes available to the Court; either to pass harsh order of dismissal of the writ petition for violation of the Court order, deem the contents of the amended memo of writ petition as non-existent being out of the scope of permission granted, or direct the petitioners/appellants to file the memo of amended writ petition strictly in accordance with permission granted by the Court. In the case, previously the matter was remanded to the High Court and although according to facts and nature of the impugned judgment it can once again be remanded but in the interest of justice and keeping in view the fact that the parties have already suffered a lot, for doing complete justice, we deem it proper to resolve the proposition ourselves.

7. In the background of above stated facts and record, the point emerged is that the petitioners/appellants filed amended writ petition containing some contents beyond the scope of the order of the High Court dated 19.06.2017. In this state of affairs, for doing complete justice and conclusive resolution of the controversy, instead of withdrawal of the writ petition the petitioners/appellants should have been providod an opportunity to file amended memo of writ petition strictly according to the permission granted by the Court.

8. Therefore, the appellants are directed to file amended memo of writ petition sitrictly according to the permission granted by the High Court on 19.06.2017, within a period of one week. Thereafter, the learned High Court shall proceed further according to rules for deciding the case. It is also desired that in view of the nature of controversy and previous litigation history the expeditious disposal will serve the purpose of justice. Consequently, this appeal is accepted in the above terms and the writ petition is remanded to the High Court for further proceedings as hereinabove indicated. ZC/66/SC(AJ&K) Case remande