1978 PLP 340 (SCMR)

NASIM HASAN SHAH, J.‑By a common judgment delivered on 24‑4‑1976, a learned Single Judge of the High Court of Sind & Baluchistan, Quetta disposed of two cross writ petitions, namely Writ Petition No. 228i1975 (filed by respondents Nos. 4 and 5 herein) and Writ Petition No. 229/1975 (filed by the petitioners herein). Both the writ petitions related to the transfer of Delight Cinema, Quetta. Writ Petition No. 228/1975 (filed by respon dents Nos. 4 and 5 herein) was accepted, while Writ Petition No. 229/1975 (filed by the petitioners herein) was rejected by a common judgment. The petitioners herein filed a single Petition for Special Leave to Appeal (C.P.S.L.A. No. 130‑R/1976) directed against the dismissal of their Writ Petition No. 229/1975. However, in the prayer clause, while it was urged that their Writ Petition No. 229/1975 be accepted, it was also‑ submitted that the "Writ Petition No. 228/1975 filed by respondents Nos. 4 and 5 be please dismissed." The office of this Court, accordingly, raised an objection to the effect that in the light of the prayer contained in the petition for special leave to appeal the petitioners ought to have filed two petitions and the Advocate‑on -Record of the petitioners should be asked to file two petitions. Notice was, accordingly, issued on 10‑7‑1976 to the Advocate‑on‑Record of the petitioners to file two separate petitions against the judgment of the High Court of Sind & Baluchistan delivered in Writ Petition No. 228/1975 and in Writ Petition No. 229/1975. It was further stated in the notice that the prayer in the civil petition for special leave to appeal, as filed, was directed against the judgment in both the writ petitions which may also be corrected. As no heed was paid to this notice and the objection 'of the office was not removed, the matter was placed for hearing before a Bench of this Court consisting of Mr. Justice Salahuddin, Mr. Justice Muhammad Afzal Cheema and Mr. Justice Dorab Patel on 17‑11‑1976 at Rawalpindi. The Court after hearing Mr. Muhammad Idrees, A. S. C. and S. Wajid Hussain, A. O. R. on behalf of the petitioners passed the following order :‑ "We grant cane month s time to the petitioner to put in the requiste petition In default tire petition already filed shall stand dismissed. The above order appears to have been accepted by the petitioners as they took no steps to get it modified or rescinded. However, they did not comply with the said order by submitting the requisite petition. The result was that in terms of the above‑mentioned order dated 17‑11‑1976 the petition already filed stood dismissed after the expiry of one month thereof. The office, unmindful of the above consequence and noting the failure of the A. O. R. of the petitioners to file the requisite petition issued notice, to him on 28‑6‑1977 inviting his attention to this Court's order dated 17‑11‑1976 and informing him that the petitioners had not filed the requisite petition as ordered by the Court despite the a expiry of one month. The case was again put up before the Hon'able Vacation Judge (in Chamber) in connection with the notice on 10‑7‑1977. At the hearing of this matter on 10‑7‑1977, Mr. Muhammad Idrees, A. S. C. of the petitioners submitted, that since the petition already stood dismissed, he will file an application for restoration of the Petition for Special Leave to Appeal. On 7‑8‑1977, an application was filed with the following prayers (i) that the petition which was dismissed on 17‑12‑1976 (i. e. one month after order passed on 17‑11‑1976) be restored and heard on the merits, and (ii) that one month's more time be granted for filing another petition against the order in Writ Petition No. 228/ 1975‑Q. This matter came up for hearing before a Bench at Rawalpindi on 16‑2‑1978 when the following order was passed; "At the request of the counsel this matter is adjourned to a date in office in Lahore to enable the learned counsel for the petitioner to prepare the case." The case has, therefore, come tip again before us to the matter of restoration of the petition which already stands dismissed for non‑prosecution. The learned counsel for the petitioners relied upon Appa and others v. Kachai Bayyan Kutti etc. (A I R 1932 Mdd. 689) to contend that the original direction given by the office to file two petitions was illegal because a single petition could be com petently maintained against the judgment delivered by the High Court of Sind & Baluchistan, whereby it disposed of Writ Petition No. 228/1975 and Writ Petition No. 229/1975.. In this connection he pointed out that the judgment in both cases was common and the questions of facts and law arising in both cases were also identical. In the circumstances the original petition for special leave to appeal filed by the petitioners could not be dismissed and the petition filed by him should be heard and disposed of on the merits. We do not find much force in this contention. The question whether the original direction ‑issued by the office was or was not valid does not appear to be relevant at this stage. As noted earlier, the office in view of the terms in which the prayer of the petitioners in their petition was couched rightly or wrongly requested that they should file two civil petitions. When the matter was put up before the Court, no contention to the effect that direction made by the office was unjustified was raised. On the other hand, it appears to have been conceded before the Court :Ital the objection vas correct and a request was, therefore, trade that one month's time for comply ing with it may be granted. This was done but a condition was imposed that in the event of the failure of the petitioners to put in the requisite petition within the aforesaid period of one month, the petition already filed shall' stand dismissed. In view of the terms of this order the petition stood dismissed w.e.f. 17-12-1976. The prayer for restoration now being urged is, in fact, a prayer for the review of the order of the Bench passed on 17‑11‑1976. This is highly belated and cannot be granted after this lapse of time. It may also be mentioned that in the application for restoration flied by the petitioners the contention raised before us today that it was not necessary to file a second petition, was not raised. The only plea taken therein was that the petitioners could not be contacted in time and therefore the second petition could not be filed. We are of the considered opinion that no good ground for review of the order passed by this Court on 17‑11‑1976 has been made out. The said order having already cone into operation the prayer for restoring the petition for special leave to appeal which already stands dismissed has no merit and the said order does not require any modification. The question of granting further time to file a petition for special leave to appeal against the judgment of the High Court of Sind & Baluchistan, Quetta in Writ Petition No. 228/1975‑Q is no longer a live issue. In conclusion, this application for restoration is dismissed. The result is that the petition for leave to appeal, which already stands dismissed, con tinues to remain so and the said position is hereby re‑affirmed. Petition dismissed.