1994 PLP 2382 (MLD)

SARDAR SAID MUHAMMAD KHAN, C.J.

This appeal has been preferred against the order of the High Court dated 29-12-1993, whereby the writ petition filed by respondent No.1 (hereinafter to be called as the respondent), was admitted for regular hearing. The brief facts of the case are that the elections to the Azad Jammu and Kashmir Legislative Assembly (hereinafter shall be called the Assembly) were held on 29th June, 1991. The process of elections was completed on 24th July, 1991 and the Legislative Assembly met in pursuance of section 13 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter shall be called as the Constitution Act) which lays down that unless the Assembly is summoned earlier, it shall meet on thirtieth day of general elections for electing the Speaker of the Assembly and the Prime Minister. Consequently, elections to the Assembly were completed and it met on 29-7-1991. Sahibzada Ishaq War, respondent, was the Speaker of the previous Assembly but as Sardar Muhammad Abdul Qayyum Khan, the then President, had resigned from the office of President so as to contest the election to the Assembly, Sahibzada Ishaq Zafar became the President by operation of relevant Constitutional provision. Thus, he held the office of President of Azad Jammu and Kashmir as well as that of Speaker of the Assembly from 19th July, 1991 till 29-7-1991, when new Speaker was elected by the subsequent Assembly. Meanwhile, Sardar Muhammad Abdul Qayyum Khan, in his capacity as President, passed an order on 16th July, 1991 whereby he nominated Raja Zulqarnain Khan, one of the newly elected members of the Assembly, for administering oath to the newly elected members and the Speaker in pursuance of section 23 of the Constitution Act read with Rule 5 of the Azad Jammu and Kashmir Assembly Rules, 1975. Consequently, the newly elected members and the Speaker were administered oath by Raja Zulqarnain Khan and not by the respondent. Sahibzada Ishaq Zafar filed a writ petition on 10th December, 1993 which was subsequently amended wherein he alleged that under the relevant provisions of the Constitution Act only he was competent to administer oath to the newly elected members and the Speaker but despite the fact that he was available on the relevant date at Muzaffarabad, for administering oath and was willing to do the needful, oath. was administered to the members and the Speaker by Raja Zulqarnain who was not competent to do so. Thus, the respondent alleged that the elections of the appellants and the pro forma respondents as Speaker, Prime Minister and Ministers being violative of law were null and void as the order of President dated 16-7-1991, whereby Raja Zulqarnain was appointed to administer oath was without lawful. authority. Consequently, the respondent prayed for a writ of quo warranto against the appellants and the concerned pro forma respondents to show under what authority of law they were holding the respective offices indicated in the writ petition. The Full Bench of the High Court, after hearing preliminary arguments on behalf of the petitioner-respondent, admitted the writ petition for regular hearing observing that following Constitutional points were of vital importance and needed consideration in regular hearing:

"(i) That the oath of office is to be taken by elected members of the Assembly. Unless, such oath is taken, a member is incompetent and unqualified to sit in the session of the Assembly or vote or to do any act or commit to do as prescribed in the Interim Constitution Act, 1974. The oath of office is to be administered by the Speaker of the Assembly as postulated under Rule 5 of the Rules of Procedure of the Legislative Assembly, framed under the provisions of the Interim Constitution Act, 1974. By virtue of Rule 5, it was enjoined that-the oath of office to the members of the Assembly shall be administered by the Speaker and in his absence, by a nominee of the President. (ii) In the present case, it was alleged that the petitioner was the sitting speaker of the Assembly in the light of the provisions of section 29(g) of the Interim Constitution Act, 1974. Under the Constitution and Rules framed thereunder, it was privilege of the petitioner to administer oath to the elected members of the Assembly. A nominee of the President could administer oath provided the Speaker (the petitioner) was not present or available for such purpose. It was alleged that the petitioner was very much present and available to administer oath but, over and above his authority, the President nominated respondent No.9 to administer oath which,. according to the petitioner, was violative of the provisions of the Constitution as well as rules of procedure applicable to the proceedings, of the Assembly. (iii) It was explained that the petitioner enjoyed his dual capacity at the relevant date of administration of oath as by the time, the sitting President had already resigned, in order to contest the election against a seat of the Assembly. Thus, the petitioner enjoyed dual capacity as Speaker as well as President, by virtue of provisions' of the Interim Constitution Act. The notifications issued in that respect were also appended with the petition. (iv) It was explained that the petitioner could not assail the sittings and right of exercise of votes of the respondents earlier as the notification whereby respondent No.9 was authorised to conduct oath of office, was kept confidential. Moreover, the respondents engaged the petitioner in private negotiations in due 'course of time, to rectify the error. (v) It is-on the record. that the. respondents, the elected members of the Assembly, after the election and administration of impugned oath of office, adverted to elect the Speaker, Deputy Speaker, Prime Minister, President and the members of the Council. All these actions could be performed - under the provisions of the Interim Constitution Act provided the members of the Assembly duly took oath of office as provided under the provisions of section 23, in the manner laid .down under the Schedule of the Interim Constitution Act, .1974. We have heard the counsel for the parties and perused the record. It has been contended by Mr. - S.M. Zafar, Advocate, appearing on behalf of the appellants, that the order of the High Court is not sustainable because it was not legally mandatory for the President to nominate Raja Zulqarnain Khan for administering oath on 29th July, 1991 when the oath was to be administered to the members. He maintained that such a nomination could be made by the President at any time, specially so when he apprehended from the conduct of the respondent that he would be reluctant to perform his Constitutional obligation of administering oath. The learned counsel maintained that even if it is assumed that the respondent was present at Muzaffarabad but was not present in the House at the relevant time, the requisite oath could be administered by the nominee of the President. The learned counsel had maintained that there was sufficient material available for the President to reach the conclusion that the respondent, after defeat of his party in the general elections, would not administer oath to the members of Assembly and, thus, a Constitutional crisis would be created. The learned counsel referred to Press Statements issued by the office-bearers of the People's Party and the respondent to substantiate his contentions: He particularly 'stressed that the petitioner-respondent in his capacity as President, had made a reference to the Supreme Court and also sought 'stay order for restraining the Assembly to meet on 29th July, 1991; and that these circumstances were clearly indicative of the fact that apprehensions .pf appellant No.2 that respondent would riot perform his Constitutional obligations were well founded. The learned counsel has referred to the relevant cuttings of newspapers, the order of this Court declining to issue the stay order in reference for restraining the Assembly from holding its session and concluded that under these circumstances the mere, fact that the nomination of Raja Zulqarnain for administering the oath was made by the President on 16-7-1991 is of no significance and in any case it was not violative of any law. The learned counsel further submitted that even if it is' assumed for the sake of argument that the administration of oath was in any way legally defective, that did not debar the members of the Assembly from participating in the proceedings held on 29-7-1991 and voting in the election of the Speaker and the Prime Minister. According to the learned counsel, under subsection (3) of section 23 of the Constitution Act, a member has to only pay Rs.200 as fine for each day if he sits in the Assembly and votes while he is not qualified to do so and he fails to take an oath, he would lose his seat under section 25(c).of the Constitution Act after expiry of ninety days reckoned from the date of election, provided the date is not extended by the Speaker; he further submitted that under section 30(c) of the Constitution 'Act, the proceedings of the Assembly would not be invalidated on the ground that some person who was not entitled to take part in the proceedings of the Assembly did so and voted. It has also been contended that in any case the provisions regarding the administration of oath under section 23 read with rule 5 of the Legislative Assembly Rules are merely directory and not mandatory and, thus, any violation in that regard would not adversely affect the proceedings of the Assembly taken on 29th July, 1991. In alternative, .the learned counsel maintained that even if it is assumed that the proceedings of the Assembly which took place on 29th July, 1991 suffer from any legal infirmity, such proceedings cannot be called in question in any Court in view of the provisions contained in section 34 of the Constitution Act because the validity of any proceedings of the Assembly or, Council or their joint sitting cannot be questioned in any Court; he submitted that the authority of a member in whom powers are vested for regulation of proceedings of the Assembly or Council etc. are also immune from challenge in any Court. The learned counsel vehemently argued that the matter which falls within the purview of 'internal proceedings' of the Assembly cannot be made subject of challenge before any Court including the High Court. The learned counsel further maintained that a writ of quo warranto cannot be issued as a matter of routine. The learned counsel also contended that the impugned order is not sustainable because the petitioner-respondent came up with the writ petition after expiry of a period of two years of the elections of appellants and concerned pro forma respondents. He maintained that the writ petition should have been dismissed in limine because the respondent acquiesced with the proceedings which took place on 29th July, 1991 and, thus, he was estopped from challenging the said proceedings after the expiry of a period of two years. The learned counsel has also submitted that even this Court has interfered in a number of cases at admission stage in the writ proceedings and, thus, it cannot be said that the present appeal being against an interim order or for that matter the order which is not final, was' not competent.. In support of his contentions, the learned counsel has relied upon a case reported as Kh. Noor-ul-Ameen v. Sardar Muhammad Abdul Qayyum Khan 1991 MLD 2658 wherein the proceedings of the Assembly were challenged by one Kh. Noor-ul Ameen and the writ petition was dismissed by the High Court in limine and an appeal was filed which was dismissed by this Court on merits. The learned counsel has cited following authorities in support of his contentions, referred to above:

. . In Sardar Muhammad Ibrahim Khan v. Azad Jammu and Kashmir Government PLD 1990 SC (AJ&K) 23, it was held that special power conferred by subsection (12) of section 42 of the Azad Jammu and Kashmir. Interim Constitution Act, 1974, can be exercised even in case of an interlocutory order, if the circumstances of the case so warranted. It was further observed that leave may be granted even in case of an interlocutory order because the word order' appearing in subsection (12) of section 42 of the Interim Constitution Act is not qualified by the word 'final'. In case reported as Wasi Zafar v. Speaker, Provincial Assembly PLD 1990 Lah. 401, it was observed that the procedure adopted for conducting proceedings of the Assembly cannot be scrutinized by the High Court in exercise of its writ jurisdiction. It was observed that the presentation of two budgets; i.e., annual and supplementary, at the same time and in the same session was not violative of the Constitution or Rules and that even otherwise the procedure adopted in passing the Budget cannot be scrutinized by the Court in exercise of Constitutional jurisdiction. It was also opined that no matter relating to the regulation of the procedure of conducting of business or maintenance of order in Assembly can be brought under review of the Court by filing a writ petition. In case reported as Syed Manzoor Hussain Gillani v. Sain Mullah 1992 MLD 2424, leave to consider as to whether the High Court was justified to issue rule nisi in view of the circumstances of the case was granted by this Court. . 'In Azizur Rehman Choudhary v. M. Nasiruddin PLD 1965 SC 236, it was observed that quo warranto should not be issued as a matter of routine and conduct and motive of the applicant are to be considered. In case reported as Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42, it was held that although under Legal Practitioners and Bar Councils Act, the meeting convened for the. purpose of election of members of the Provincial Bar Councils was to be presided by the Advocate-General but instead it was presided by . a senior member of Bar Council functioning as ex- officio Chairman. The election was held valid because the participation of the ex-officio Chairman of the Council for the proceedings did not affect the elections and also because no objection was taken by any party, during the election to the validity of assignment of Mr. Jan-e-Alam to act as Chairman of the Council during the proceedings: In Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan PLD 1991 Lah. 420, it was held that principle of laches in case of writ of quo warranto will generally not apply to it but cannot be ignored its application if attending circumstances are such which militate against the bona fides of the petitioner. In Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate PLD 1993 SC (AJ&K) 12, it was observed that the principle of laches is not directly applicable in case of quo warranto but its relevant test to see bona fides of the relator, especially so when the relator is not aspirant to the office which he intends to get vacated. In case reported as State' of Punjab v. Satya Pal Dang AIR 1969 SC 903, it was observed that the provision of Article 199(4) of the Indian Constitution was not mandatory but was directory in nature. It was observed that in absence-of the Speaker, Deputy Speaker acts as Speaker under Article 199(4). He can effectively certify money bill under Article 199(4) though the aforesaid Article envisages that only Speaker of the Assembly shall certify such a bill. It was held that the provisions under Article 199(4) could not be viewed mandatory: It was opined that if the Constitution saw the necessity of providing a Deputy Speaker to act as Speaker during the latter's absence or to perform the office of the Speaker when the office of the Speaker is vacant, it stands to reason that the Constitution could never have reposed a power of mere certification absolutely in the Speaker and the Speaker alone. It was further observed that the distinction between the mandatory and directory provisions is that in a mandatory .provision there is implied prohibition to do the act in any other manner while in a directory provision substantial compliance is considered sufficient. In those cases where strict compliance is indicated to be a condition precedent to the validity of the act itself, the neglect to perform it is fatal but in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language, the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty. It was further opined that in view of Article 212, clause (1) the validity of any proceedings in Legislature of a State shall not be called in question on the ground of alleged irregularity of the procedure. In case reported as Zulfikar Ali Bhutto v. The State PLD 1978 SC 40, the point involved was as to whether the Chief Justice of the High Court, after being appointed as Election Commissioner for a limited period for holding elections, could continue to function as Chief J4stice of the High Court. It was resolved that the temporary appointment of Chief Justice of the High Court as Election Commissioner would not debar him to continue as Chief Justice. The question as to whether it was necessary for the Acting Chief Justice to take oath, as such, was not resolved. However, it was held that the appointment of Acting Chief Justice was not invalidated because he had taken modified oath prescribed by the President and not .under the Constitution. It was opined that in the prevailing circumstances of the country, the appointment of the Acting Chief, Justice who was administered oath under the relevant proclamation issued by the President, would not render his appointment as Acting Chief Justice as invalid. The question as to whether it was necessary for the Acting Chief Justice to be administered oath or not was left undecided because the point was otherwise resolved. In Anand Bihari Mishra v. Ram Sahay AIR 1952 Madhya Bharat 31, the point involved was that the Speaker of the Legislative Assembly who had not taken oath as prescribed under Article 188 of the Indian Constitution was debarred from acting as Speaker. One of the members of the Bench Shinde, J. opined that as Mr. Ram Sahay, Speaker of the Assembly, had taken oath under the Interim Legislative Assembly Act, 1949, he could validly continue to act as Speaker even after the commencement of Indian Constitution. Thus, it was opined that mere fact that instead of taking oath under Constitution as member, he took oath by uttering the word 'Speaker' would not debar him to act as Speaker. It was further observed that even if it is held that oath was not taken in requisite form, no rule for information in the nature of quo warranto be issued because under the relevant provisions of the Constitution, the Government had been given discretion to declare his seat vacant. However, the learned member of the Bench, Dixit, J., observed that had the question been raised as to whether Shri Ram Sahay retained the status of the Speaker under Article 325 of the Constitution, it would have been the duty of this Court to decide the matter. It was observed in para. 46 of the judgment as under:

"I do not, however, feel able to concur in the view that this Court cannot, on any ground enquire into the legality of the continuance of the opponent Shri Ram .Sahay in the office of Speaker. To the other grounds on which the petitioner challenges' the continuance of the opponent in the office of Speaker, the analogy of the British House of Commons being the sole Judge of determining the question whether any person who claims to be the Speaker, is so, cannot, in my opinion, even remotely be applied. It is obvious that the objections to the validity of any person holding the office of Speaker. in the form in which they have been raised here, can never arise in England. If the jurisdiction of the English Courts to determine matters challenging the legality .of any person in the office of Speaker of the House of Commons is excluded it is because of the limits imposed by the law of their Constitution, on the various institutions of Government and thus upon the extent to which the Courts are required to control the Parliament which is supreme. To my mind, the objections raised by the petitioner as to the legality of the continuance of Shri Ram Sahay in the office of Speaker under Article 385 of the Constitution is not one relating to the 'internal affairs of-the Assembly. The question at issue was no doubt, raised by the petitioner in the Assembly by way of a point of order. But the determination of the matter by the House or the Speaker is not conclusive. The question raised is of declaring the status of a person on the interpretation of the Constitution. Under our Constitution, it is the duty of this Court faithfully to expound and give effect to it according to its own terms. The claim, therefore, that it is not the function of this Court to declare whether under the Constitution Shri Ram Sahay has or has not the status of the Speaker of the Madhya Bharat Legislative Assembly, being one opposed to the first principles of the Constitution, must be rejected." . In case reported as Ram Dubey v. The Government of the State of Madhya Bharat AIR 1952 Madhya Bharat 57, the question as to whether Ram Sahay could act as Speaker was again raised before the Full Bench which confirmed the view taken by the Division. Bench in case reported as Anand Bihari Mishra v. Ram Sahay AIR 1952 Madhya Bharat 31, referred to above. The arguments advanced by the learned counsel for the appellants were strenuously opposed by Sardar Rafique Mahmood Khan, Advocate, appearing on behalf of respondent No.

1. He has contended that there is no question of laches or acquiescence in case of writ of quo warranto. The learned counsel has submitted that in fact the petitioner had some negotiations with appellant No.2 for a political settlement which ultimately failed and the writ petition was filed. According to the learned counsel for the respondent, even if there would have been no explanation for delay, that would not be fatal because in case of a writ of quo warranto, delay is no ground to refuse the writ. The learned counsel has controverted the contention of the learned counsel for the appellants that there was any legal justification on 16th July, 1991 for the appellant No.2 to appoint Raja Zulqarnain for administering oath. The learned counsel for the respondent maintained that the respondent was not only available at Muzaffarabad on the relevant date but was willing to administer requisite oath. He has referred to an affidavit sworn by Sahibzada Ishaq Zafar wherein he was deposed that on 29th July, 1991 he was present at Muzaffarabad in the office of President but he was not contacted to administer any oath. The learned counsel has also controverted the submissions made by the learned counsel for the appellants that the provisions of section 23 of the Constitution Act are merely directory and not mandatory in nature. The -learned counsel has submitted that combined reading of sections 23 and 25 of the Constitution Act makes it crystal clear that a member of Assembly is debarred from taking part in the proceedings of the Assembly without the administration of oath by a competent person; because the aforesaid, provisions envisage penalties including losing the seat. He has laid stress on the point as to how the President came to the conclusion on 16th July, 1991 that the respondent would be reluctant to administer oath on 29-7-1991. The learned counsel submitted that the relevant date for the purpose of availability of respondent and his willingness to administer oath was 29th July, 1991 when the Assembly was to meet and not any earlier date: He has also submitted that a person other than the Speaker can be nominated only if the Speaker is absent and is not available for administering oath; there is no provision in the Constitution Act or the rules that .another person can be nominated by the President if the Speaker refuses to administer oath. Thus, he maintained that even if it is assumed for the sake of argument that the President had apprehensions that Sahibzada Ishaq Zafar would be reluctant to administer oath, even then he was not competent to nominate Raja Zulqarnain Khan for administering oath to the members; no such power legally vests in the President. The learned counsel for the respondent has maintained that when a penalty is prescribed for an act or omission, the relevant provision is always mandatory and not directory. The learned counsel has submitted that under section 25(c) a member of Assembly who fails to take an oath within ninety days loses his seat. Thus, according' to the learned counsel, the petitioner-respondent was entitled to the relief sought even on this sole ground. The learned counsel has further submitted that the argument advanced by the learned counsel for the appellants that an elected member of the Assembly-would not lose his seat before the expiry of a period of ninety days, reckoned from the date of election, does not imply that such a member is competent to act as member of the Assembly and to participate in the proceedings of the Assembly. The learned counsel maintained that to be a member of the Assembly is one thing and to be legally competent to act as such is a different matter. Thus, according to the learned counsel for the respondent as the oath was not administered to the members of the Assembly by a competent person, it cannot be said that the members were legally competent to participate in the proceedings held on 29-7-1991 or they were legally competent to cast their votes. The learned counsel has strenuously argued that the High Court has not issued any writ; it has merely admitted the writ petition for regular hearing. .He has drawn our attention to the grounds on which the High Court admitted the writ for regular hearing and argued that the said points are of vital importance which relate to the interpretation of the provisions of the Constitution Act and, thus, it cannot be said that the High Court committed any error in law while admitting the writ petition for regular hearing. He has submitted that this Court interferes at admission stage of a writ petition in appeal only where there was lack of jurisdiction of the High Court in the matter of there was flagrant disregard of law which is apparent on the face of record and not otherwise; he maintained that deep scrutiny of factual and legal points is never made at this stage. The learned counsel for the respondent has also submitted that there are no circumstances in the instant case to interfere with- the impugned order at this stage. Thus, the learned counsel has maintained that even otherwise, an appeal against an interim order is not competent to this Court. He has maintained that in case of writ of quo warranto, the mischief is of a continuing nature and, thus, neither the question of laches nor estoppel would disentitle the respondent from seeking the relief by resorting to writ jurisdiction of the High Court under section 44 of the Constitution Act. The learned counsel has further maintained that in the proceedings of writ of quo warranto, the legality of a notification or a>? order relied upon in defence can be gone into and, thus, it is not correct to contend that as there were notifications to the effect that the appellants and the pro forma respondents were validly elected as members of the Assembly and subsequently elected or appointed to respective public offices was sufficient answer to a writ petition. The learned counsel submitted that the appellants can present their defence and evidence, if any, in the High Court and unless there are findings of the High Court on the controversial points, this Court cannot decide the points at this stage. The learned counsel has relied upon the following authorities in support of his contentions:

1n Mr. Fazlul Quader Chowdhry v. Muhammad "Abdul Haque PLD 1963 SC 486, the question involved was as to whether 'the appellants who were holding offices of Federal Ministers under 1962 Constitution of Pakistan were validly holding the same. It was observed that in Constitutional matters, such as whether the Ministers were holding the offices validly, despite certain amendments made in the Constitution,, there is no question of laches. While dealing with the point, it was held by Hamoodur Rahman, J., at page 542 as under:

"Lastly, it remains to notice the argument that the High Court should have dismissed the application on the ground of laches, since it was being made nearly nine months after the appellants entered upon their respective offices as Ministers. If the Ministers were holding office without any lawful authority, their continuance in office was in the nature of a continuing wrong giving rise to a cause of action de die in diem, and, therefore, there could be no question of any laches. In any event, on questions relating to the constitutionality of actions the ground of laches cannot prevail, for there can be no estoppel against the Constitution and an act which is unconstitutional cannot become Constitutional by lapse of time nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act." In case reported as Khawaja Muhammad Sharif -v. Federation of Pakistan PLD 1988 Lah. 725, the point involved was as to whether the President of Pakistan validly dissolved the National Assembly and discretion exercised by the President was rightly exercised. It was observed that there must be some material on the record to show that before exercising the powers, the President was justified in arriving at the conclusion to dissolve the National Assembly. It was also opined that although the contention of Attorney-General that the writ petition was suffering from laches, yet as the petitioner raised the fundamental question relating to the interpretation of Constitution, there is no question of laches and the duty is cast upon the Court to decide the point involved in the case. In Abdur Rab Choudhury v. Registrar of Joint Stock Companies PLD 1960 Dacca 541, it was observed that for issuing a writ of mandamus the applicant ought to show that he had a legal right to seek the performance of a legal duty which was cast upon the respondents concerned. The impugned order m the . case was passed in connection with the Registrar of a Joint Stock Company in 1952 and -the writ was filed in 1960. Despite this, the delay was condoned observing that it could not be said that the applicant slept over the matter or he was negligent, because the Managing Director of the company was out of Pakistan and, thus, the applicant had to make inquiry as to whether the -company-concerned was 'foreign company'. The explanation of the absence of 'knowledge of the petitioner was held sufficient for condoning the delay. In case reported as Syed Arshad Hussain v. The Government of Sindh PLD 1982 Kar. 604, a writ of quo warranto was filed with regard to the election of Municipal Committee, Sukkur. An objection was raised that the writ was suffering from laches. It was held that in case of writ of quo warranto if a person holds any public office without authority of law that is a continuous wrong and it could be set right at any time and there was no question of delay in such case. It was further opined that even otherwise, the question of laches was to be decided in each case in view of its peculiar circumstances. In Khuda Bakhsh v. Superintendent of Police, Badin PLD 1976 Kar. 1005, a history sheet was opened of the petitioner under Punjab Police Rules 1934. It was contended in defence that the writ petition suffered from laches was observed that the act of opening .history sheet is a continuing wrong an thus, the cause of action arises continuously. Consequently, the contention that the writ should be dismissed as being hit by laches was overruled. In case reported as Mian Miraj-ud-Din v. The Senior Superintendent of Police, Lahore District, Lahore PLD 1970 Lah. 569, the writ petition was filed to challenge the proceedings with regard to the opening of history sheet. It was held that as the impugned order being in nature of continuous wrong, the cause of action would be deemed to have arisen continuously and there was no question of laches. In Muhammad Akbar v. Dr. Khan Sahib, Chief Minister of West Pakistan, PLD 1957 Kar. 387, the writ was filed to challenge the election to Legislature on certain grounds. The elections were challenged on the ground of illegality due to inclusion of certain area in the electoral college., The delay in filing the writ petition of one year was condoned on account of ignorance of the petitioner of. the 'fact that certain area was made a part of the electoral college. In Baij Nath Singh v. The State of Uttar Pradesh AIR 1965 All. 151, it has been held that a writ of quo warranto cannot be dismissed merely on the ground of laches. It was observed that if the appointment of an officer is illegal, every day. he acts in the office, fresh cause of action arises and there is no question of delay in presenting the petition seeking. a writ of quo warranto against such a person. In case reported as Niaz Khalil v. Sh. Muhammad Shafiq PLJ 1980 SC 44, it was held that interlocutory order is not appealable unless it is made appealable by a specific provision. In Madhaji Lakhiram v. Mashrubhai Mahadevbhai Rabari AIR 1962 Gujarat 235, it was held that as word 'final' was not used by the Legislature in section 88-C, subsection (5) of the Bombay Tenancy Act and Agriculture. Lands Act of 1948, the decision given by the appellate authority under subsection (5) of section 88-C was not subject of revision. In case reported as Ch. Muhammad Akbar v. Chairman, Municipal Committee, Jalalpur Jattan 1981 SCMR 837, while discussing Article .185(3) of the Constitution of Pakistan, it was observed that as the interim order passed by the Court was yet to be confirmed, the best course of the petitioners in the circumstances was to apply to the High Court for setting aside the order and not to come up with petition for leave to appeal in the Supreme Court. In the National Electric Fans Manufacturers (Regd.), Gujrat v. S. Muhammad Din &. Sons Ltd., Lahore 1980 SCMR 97, it was observed that appellate Court should not give conclusive finding while dealing with an interlocutory order. The aforesaid observations were made while dealing with the question of legality of interim injunction. In case reported as Athar Rehman v. Muhammad Latif Tahir PLD 1981 Lah. 48, it was observed that in proceedings of quo warranto, the mere fact that member was in possession of notification showing him to have been elected does not debar the Court from going into the legality of the notification. It was further observed that delay in proceedings of quo warranto has never been considered sufficient to dismiss the writ petition. We have given our due consideration to the arguments raised at Bar. As has already been stated, the present appeal has been preferred against the order of the High Court, dated 29-12-1993, whereby the writ petition filed by respondent No.1 was admitted for regular hearing; the impugned order was an ex parte order and, thus, the documents brought on the record placed before this Court were not placed before the High Court. It is evident from the arguments advanced by the learned counsel for the parties that the superior Courts of India and Pakistan rarely interfere in the order of an admission of writ petition; none of the counsel for the parties could cite any instance from Pakistan or Indian jurisdiction showing that the Supreme Court interfered in an order of the High Court admitting a writ petition for regular hearing. Some of the cases of this Court, i.e., Kh. Noor-ul-Ameen v. Sardar Muhammad Abdul Qayyum Khan 1991 MLD 2658 and Syed Manzoor Hussain Gillani v. Sain Mullah 1992 MLD 2424, referred to above, were relied upon in support of the contention that this Court has been. entertaining appeals at the stage of the admission of the writ petitions for regular hearing. However, it may be stated that this Court has only interfered in such cases where there was total lack of jurisdiction. of the High Court regarding the subject-matter of the writ petition or an order was passed in disregard of law which .is apparent on the face of record and a deep scrutiny of the controversial factual or legal points was not required. Thus, the interference in an ex parte order of admission of a writ petition is not a rule but an exception. A reference may be made to an unreported case of this Court entitled Azad Government of-the State of Jammu and Kashmir v. Chairman, Mirpur Development Authority, Mirpur (Civil Appeal No. 3 of 1994, decided on 25-1-1994), wherein an appeal was preferred against the order of' admission of writ petition to this' Court and ,the Court observed as under:

.......... It may be emphasised here that this Court sitting as a Court of appeal on the order passed by the High Court would interfere in an order of admission of a writ petition only when it is shown to be clean; violative of Constitutional or other legal provisions on a cursory view of the matter and not in case requiring deep and cumbersome appreciation of question of law or fact; otherwise it would tantamount to pre-empt the jurisdiction of the High Court. It may be observed that a writ petition is generally admitted ex 'parte for regular hearing and, thus, the view taken by the High Court at the admission stage is of tentative nature. The opposite-party has right to question the competency of the writ petition when it appears in tile Court and files the written statement. Thus, it is not desirable to interfere with the order of High Court at initial stage as a matter of routine. " It is evident from the above extract that if the question involved in a writ petition needs deep scrutiny of factual or legal aspects of the case, this Court would not interfere in appeal and would stay its hands; because primarily it is for the High Court to draw conclusion on a controversial issues of fact and law in view of the record before it and to resolve the controversial points in view of the material placed on the record. Needless to say, this Court has no original jurisdiction in matter of writ and, thus, appeal against an order of admission of a writ petition would only lie if a case falls within the ambit of the principle laid down in the above-referred case. Now, the next question arises as to whether the instant case satisfies the condition precedent for interfering in the impugned order at this stage,; i.e., whether there is total lack of jurisdiction or flagrant disregard of law, which is apparent on the face of record and is ascertainable on the cursory view of the matter without indulging an extensive exercise in that regard. It has been contended by the learned counsel for the appellants, Mr. S.M. Zafar, that the writ petition was filed after the lapse of a period of more than two years and, 'thus, it entailed dismissal on this sole ground; and that there are circumstances which are indicative of the fact that the petitioner-respondent acquiesced in the relevant proceedings and the writ petition was hit by the principle of estoppel. It may be stated here that no authority has been cited by Mr. S.M. Zafar in support of the proposition that a writ of quo warranto is not maintainable if there is inordinate delay on the other hand, the learned counsel for the respondent has cited a number of authorities, referred to above, which show that a writ of quo warranto cannot be dismissed merely on the ground of laches or, in other words, because it was filed after an expiry of a considerable time, reckoned from the date of accrual-of cause of action. It may be observed that in Manzoor Hussain Gillapi's case, referred to above, which was a case of writ of quo warranto, this Court considered the delay as a circumstance which lent support to the contention that the writ petition was actuated by malice. However, it was opined id that case, too, that mere delay in filing a writ of quo warranto is not fatal to it. The learned counsel for the petitioner-respondent has cited, at least, two recent decisions from the Supreme Court of Pakistan wherein it has been held that mere delay is not fatal to a writ of quo warranto, especially so when the interpretation of the provisions of the Constitution is involved. The question as to whether the delay in the instant case can be read as a supportive evidence to draw an inference of mala fide, cannot be gone into at this stage in view of the circumstances of this case; because it is to be ascertained after the resolution of controversial facts as to whether the respondent was reluctant to administer oath of office to the members of the Assembly due to mala fides. The learned counsel for the respondent, Sardar Rafique Mahmood Khan, has relied the authorities, referred to above, that there is no estoppel by acquiescence in case of a writ of quo warranto; the learned counsel has also cited authorities to the effect that in case of a writ of quo warranto, there is always a 'continuing wrong' and, thus, delay is not fatal. Irrespective of the validity of arguments advanced by the counsel for respondent, the matter does not fall within the ambit of 'apparent disregard of law'. The arguments advanced by the learned counsel for the appellant, Mr. S.M. Zafar, that even if it is assumed for the sake of arguments that the respondent was present in the President House on 29-7-1991 when the oath was administered to the members of the Assembly but if he was not present in the House, the oath administered will not be invalidated also requires resolution of factual and legal propositions which need deep appreciation. The fact as to whether the respondent was present at Muzaffarabad--on the said date in the President House is a disputed issue between the parties and it can be resolved only by the High Court in view of the record which ray be submitted by the parties in support of their contentions. Similarly, the question as to whether in the instant case the writ petition is not tenable in view of section 34 of the Interim Constitution Act because the proceedings of the Assembly cannot be challenged in any Court and the question as to whether in the instant case the writ petition is a writ of 'quo warranto' or, it, would amount to. challenging the proceedings of the Assembly' are questions which need deep scrutiny. Mr S.M. Zafar has referred to a case reported as Anand Bihari Mishra v. Ram Sahay AIR 1952 Madhya Bharat 31 in support of his contention that defect in the administration of oath of the Speakers not fatal and in any case the matter being the 'internal affair' of the Assembly cannot be made subject of writ proceedings. It may be stated that the perusal of the aforesaid authority shows that the same is distinguishable. In that case the proposition involved was not that the person administering oath was incompetent; rather it was held in that case that oath administered to the Speaker under the previous law was sufficient and fresh oath on the- promulgation of the Constitution was not necessary. One of the members of the Division Bench, Mr. Justice Dixit, specifically, held, as has been seen in the relevant extract reproduced above, that had the writ petition been one of quo warranto, it would have been the duty of the Curt to-see-as to whether the Speaker had the authority to act as Speaker or not. In other words, prima facie, ratio decidendi of the aforesaid case is not fully applicable to the present case, especially so when the present writ petition has been couched as a writ of quo warranto and not writ of mandamus or certiorari. However, the principle enunciated in the aforesaid authority can be considered by the High Court in the light of corresponding provisions contained in the Indian Constitution and the Azad Jammu and Kashmir Interim Constitution Act, as the relevant provisions on the: point in the two Constitutions are, prima facie, not identical. Similarly, the argument.. advanced by the learned counsel for the respondent that under section 25(c) of the Interim Constitution Act, if a member fails to take oath under section 23 of the Constitution Act, he would lose his seat after the expiry of ninety days and, thus, the present writ of quo warranto must succeed on this sole ground is a question which requires extensive exercise. Besides, the controversy about the question as to whether the order whereby the President appointed Raja Zulqarnain to administer oath was valid in view of the fact when rule 5 of the Assembly Rules envisages that another person can be appointed to administer oath only if the Speaker is absent and not on the ground that he 'refuses' or is 'reluctant' to administer oath to the members needs cumbersome exercise on which the wisdom of the High Court must come-forth. The question as to whether the press statements allegedly issued by the respondent and the other office bearers of his party, coupled with the reference which was made by the respondent to the Supreme Court, are' sufficient to draw the inference that the petitioner-respondent was reluctant to administer oath on the relevant date,-must, in the first instance, be adverted to and resolved by the High Court. . There has also been controversy between the parties as to whether compliance of sections 23 and 25(c) of the Constitution Act read with rule 5 of the Assembly Rules is mandatory or the said provision is merely directory in nature; both sides have relied upon case-law in support of their contentions. This point can also be befit resolved by the High Court. We have made the above observations tentatively in the cursory view of the matter that there was no lack of jurisdiction of the High Court or flagrant disregard of law while passing the impugned order. It may be emphasised here chat the above observations should not be taken to mean to give any final opinion on the controversial points, discussed above, one way or the other. The said observations have been made merely to indicate that this is not a case in which it could-be said that there was lack of jurisdiction or flagrant disregard of law which is apparent on the face of the record and, thus, calls for interference by this Court. In the light of what has been stated above finding no force in this appeal, it is hereby dismissed. The original file shall be transmitted to the High Court to proceed according to law. A.A./44/S.C.A. Appeal dismissed.