1992 PLP 1854 (CLC)

(On appeal from the order of the High Court dated 24‑9‑1990 in Writ Petition No.83 of 1989). ‑‑‑‑Ss. 42 & 44‑‑‑Appeal‑‑‑Amendment of Constitutional petition‑‑‑Application for amendment never taken into consideration by High Court nor respondent was asked to file any objections to amendment application‑‑‑Question of amendment and effect of material sought to be incorporated in Constitutional petition had direct bearing on point as to whether appellant was "aggrieved" Date of hearing: 26th May, 1992. SARDAR SAID MUHAMMAD KHAN, CJ‑‑‑This appeal has been directed against the judgment of the High Court dated 24‑9‑1990, whereby the writ petition filed by the appellant, herein, was dismissed. Brief facts giving rise to the present appeal are that Plot No.203‑B, situate in Sector F‑2, Mirpur Town, was allotted to respondent No.4, Muhammad Anwer, on 5‑7‑1989. The said allotment purports to have been made on the ground that the disputed land was allegedly encroached upon by the respondent. The appellant challenged this allotment through a writ petition, filed by him in the High Court, which was dismissed in limine on 25‑11‑1989 on the ground that no document had been filed with the writ petition to substantiate the averments made in the writ petition, except that an unattested photostat copy of the notice which was not admissible in evidence. Alam Din, appellant herein, after the dismissal of his previous writ petition, filed another writ petition on 29‑11‑1989 which was also dismissed on 24‑9 1990 by the High Court on merits. Consequently, an appeal was preferred to this Court which was dismissed on the ground that as the previous writ petition filed by the appellant, herein, was dismissed, the second writ petition was not competent. A review petition was preferred by the appellant, herein, challenging the judgment of this Court on the ground that the previous dismissal being on technical ground, would not constitute res judicata. The review petition was admitted for regular hearing and disposed of on merits whereby the same was accepted and the original appeal file was restored on its original number. We have given our due consideration to the arguments of the learned counsel for the parties in the light of the relevant record. While the writ petition was pending in the High Court, the appellant filed an application seeking an amendment of the writ petition on 11‑3‑1990 along with an application purported to have been made by Alam Din son of Ghulam Hussain, the present appellant. There are notes on the application for allotment by the Estate Officer and others. However, the prayer for amendment of the writ petition was not taken into consideration by the High Court nor the respondent was asked to file any objections to the amendment application or the application made to the Chairman, Municipal Committee, for the allotment of the plot which, according to the appellant, had been in his possession since 1974. It may be pointed out that for the just decision of the case the question as to whether the application attached to the amendment application was, in fact, made by the appellant, herein, and whether he could be permitted to amend the memorandum of the writ petition should have been considered by the High Court. However, for one reason or the other, it has not been done. The question of amendment and the effect of the application purported to have been made to the Chairman has direct bearing on the point as to whether the appellant is an `aggrieved' person within the meaning of the relevant constitutional provisions. As no objections have been filed by the respondent nor we have the wisdom of the High Court before us on the point reflected above, we have no alternative but to remand the case to the High Court for considering the amendment application and decide the matter one way or the other. It may be pointed out that the question of amendment is also important because the High Court came to the conclusion that previous copy of the application `form' on which the appellant alleged to have made the application for the allotment was made by Muhammad Alam son of Alain Din and not Alain Din son of Ghulam Hussain, the present appellant. This aspect of the matter weighed with the High Court while passing the imugned order. Thus we accept the appeal set aside the impugned order of the High Court and remand the case back to the High Court with the direction that it shall first decide the question of amendment application one way or the other and thereafter decide the writ petition afresh according to law. The appeal stands disposed of in the manner as indicated above. A.A/342/S.C.A Case remanded.