2018 PLP 23 (CLCN)

MUZAMIL AKHTAR SHABIR, J.

This constitutional petition has been filed to seek relief to set-aside the orders passed by respondent authorities holding that 350-PIUs held by the petitioner were in excess of prescribed limit under the MLR 115 of 1972 and the mutation of resumption of land and the direction of the respondent authorities issued to the petitioner to exercise choice to surrender the area of his choice as being violate of the judgment of the Shariat Appellate Bench of Supreme Court in Qazalbash Waqf's case (PLD 1990 SC 99).

2. Brief facts of the case are the petitioner was a declarant under the Land Reforms Regulation, 1972 (MLR 115) and owned certain agriculture land in 4-villages. Respondent No.3/Deputy Land Commissioner, Multan vide order dated 26.09.1972 resumed the land of the petitioner/declarant to the extent of 1766-PIUs from Mauza Kotla Sadaat, Multan. At that time, the petitioner claims that he was a minor and applied for interchange of his land under Form-LR- 10 which was not allowed by respondent No.3 vide order dated 13.11.1973 and the petitioner/declarant was directed to surrender the land of his choice of area within 7-days to the extent 1339 PIUs. The petitioner filed Revision Petition No.407(FLC)/90 before the Land Commissioner Multan/ respondent No.2, who vide order dated 22.07.1990 set-aside the orders passed by respondent No.3 and directed him to give the right of choice to the petitioner/declarant and resume the area equivalent to 350-PIUs in compact block instead of 1766-PIUs earlier resumed and dispose of that land as per law. Respondent No.3 on 06.08.1990 resumed the land of the petitioner from Mauza Garhay Wahin, Multan and through order dated 28.11.1992 also resumed the land of the petitioner of Mauza Rai Pur Multan. The petitioner assailed the said order before respondent No.2 by filing an appeal. The appeal was allowed and the petitioner was allowed to surrender the excess area equivalent to 350 PIUs out of his holding situated in Mauza Kotla Sadaat Tehsil Multan. Respondent No.3 resumed the land of the petitioner vide order dated 27.10.1993 from Mauza Kotla Sadaat and mutation No.483 dated-29.11.1993 was sanctioned in favour of the Land Commission. The petitioner filed an appeal against the order dated 27.10.1993 before respondent No.2 which was partly accepted on 04.11.1996 and allowed the petitioner another chance to submit a fresh choice before the court within 15-days so that the land resumed in favour of the Land Commission may be exchanged according to the petitioner's choice with further condition that if the petitioner failed to do so, order passed by respondent No.3 dated 27.03.1993 would stand confirmed. The petitioner challenged the order dated 04.11.1996 passed by respondent No.2 under section 27 of the Land Reforms Act, 1977 before respondent No.1/Chairman Federal Land Commission, Islamabad. The petitioner agitated therein that respondents Nos.2 to 4 had no authority and jurisdiction to resume the land of the petitioner as the Shariat Appellant Bench Islamabad had already declared certain provision of the MLR 115 of 1972 as un-Islamic and they ceased to have effect after the crucial dated i.e. 23.03.1993 as held in the case titled as Qazalbash Waqf and others v. Federal Land Commission and others (PLD 1990 SC 99). The respondent No.1 on 18.12.2012 partly allowed the petition and set-aside the order dated 04.11.1996 to the extent that Land Reforms Authorities could not insist upon a particular choice and directed the petitioner to file a Revised Choice before respondent No.3 of the area equal to 350-PIUs held as excess by the Federal Land Commission in order dated 22.07.1990. The petitioner filed an application with respondent No.3 on 11.06.2014 for amending of the order dated 18.12.2012 passed by respondent No.1 but no action was taken upon the same.

3. The petitioner has challenged the order dated 18.12.2012 passed by respondent No.1 along with other orders by filing this constitutional petition by claiming that all the orders of the relevant authorities are hit by judgment Qazalbash Waqf and others v. Federal Land Commission and others (PLD 1990 SC 99) and claimed that the respondents authorities have no power after 23.03.1993 to resume the land of the petitioner. The claim of the petitioner is that at the juncture of the passing of the order dated 08.12.2012, the respondent No.1 had no authority to resume the land and he has travelled beyond the jurisdiction vested in him. When the land was originally resumed on 13.11.1973, the judgment of Qazalbash Waqf was not in the field. Thereafter the challenge by the petitioner was regarding the extent of land that was to be resumed and it was reduced from 1339 PIUs to 350 PIUs on 22.07.1990. Till then the petitioner was not seeking setting-aside of order of resumption. Subsequent challenge was the right to exercise choice of land to be surrendered. The petitioner for first time placed reliance on Qazalbash Waqf judgment before the Chairman, Federal Land Commission, when it had already been finalized that 350 PIUs were to be resumed and entry to that effect was also available in the revenue record. Petitioner cannot be allowed to raise this plea at the belated stage of revision before the Chairman FLC.

4. During the course of argument, the counsel for the respondent has placed on the record a copy of order dated 24.11.2014, whereby the same orders had been challenged by the present petitioner through W.P. No.14186/2014 which was withdrawn without seeking permission to file afresh. The relief claimed in that petition was similar to the relief now been claimed by the petitioner based on the same cause of action. The relief not claimed in the earlier petition would be barred under Order II, Rule 2 of the C.P.C. and would amount to relinquishment of claim to that extent. Having withdrawn that petition on 24.11.2014, the petitioner had not sought permission to file afresh petition. Although from the order sheet it is seen that this petition was filed and came up for hearing on the same date 24.11.2014 i.e., on the day when the earlier petition was withdrawn. As the earlier writ petition had been withdrawn without seeking permission to re-file afresh petition, the instant petition is hit by provision of Order XXIII, Rule 1, C.P.C, whereby if a party withdraws its claim in whole or any part it is precluded from re-agitating the same by filing another writ petition. The principle of Order XXIII, Rule 1, C.P.C. has been made applicable also to the writ petition for that purpose. Reliance may be placed on judgment reported as Azhar Hayat v. Karachi Port Trust through Chairman and others (2016 SCMR 1916) wherein it was held that:- "

6. We shall first deal with the legal objections taken by the learned counsel for the respondents. The petitioner had filed C.P. No.D--2602/2014 which was "not pressed" on 19th August 2014 and then filed the suit on 26th August 2014 (which was converted into a petition wherein the earlier petition filed by the petitioner was mentioned in paragraph 13 by stating that, "the same has been withdrawn by the Plaintiff as fresh cause of action has accrued to the Plaintiff". The respondents had objected to the subsequent filing of the suit-petition as the requisite permission had not been obtained from the court' when it was not pressed and dismissed. The impugned order took notice of this fact, but the learned judges did not non-suit the petitioner on this ground evident through he could have been because sub-rule (3) of Rule 1 of Order XXIII of the Code stipulates that where the plaintiff withdraws from a suit without being given permission to institute a fresh suit in respect of the same subject-matter or such part of claim he would be precluded from doing so."

5. Relying upon the judgment of the Hon'ble Supreme Court of Pakistan mentioned supra, we find that this petition is not maintainable as permission had not been sought for filing the same afresh.

6. For what has been discussed above, we see no merits in this constitutional petition and the same stands dismissed. ZC/G-5/L Petition dismissed.