1985 PLP 102 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.--This petition for leave to appeal is directed against judgment, dated 9-4-1980 of the Lahore High Court; whereby an Intra-Court Appeal arising out of a land settlement case was dismissed. The petitioner had raised a grievance in a land allotment case before the Lahore High Court in a Constitutional petition. It was dismissed for non-prosecution. The petitioner moved an application for setting aside this order of dismissal but without any success. He then filed an Intra-Court Appeal regarding refusal of the learned Single Judge to set aside the order of dismissal for non-prosecution. It was also dismissed by a Division Bench. While this Intra-Court Appeal was pending the petitioner filed another writ petition regarding the same subject-matter but it was dismissed on the technical ground that the aforementioned Intra-Court Appeal was then pending. The petitioner availed of a third chance after the afore stated dismissal of the Intra-Court Appeal and filed another writ petition regarding the same subject-matter which was dismissed by a learned Single Judge on 18-12-1979. The petitioner challenged this third dismissal through another Intra-Court Appeal which was dismissed on 9-4-1980. He has therefore sought leave to appeal. The impugned order was passed on the following consideration:- "It is unnecessary to examine the ground upon which the learned Single Judge dismissed the writ petition for in our opinion the conduct of the appellant shows gross negligence in pursuing the remedy." Learned counsel has contended that in reality the petitioner had been pursuing the remedy diligently. It was due to legal formalities that the petitioner had to submit so many petitions and appeals and that is why it was not treated as a case of negligence by the learned Single Judge who dismissed the writ petition on 18-12-1979. That being so the Intra-Court Bench should not have dismissed the appeal (and thus the writ petition) on this ground alone. Without going into the question raised by the learned counsel we invited him to argue whatever he liked on merits against the judgment of the learned Single Judge dated 18-12-1979. And we thus heard him in that behalf. His main grievance is based on a question of fact. The basic order passed by the concerned Settlement authority, which was brought under challenge in the High Court proceeded on an assumption of fact that on account of paucity of the area in the village in question a scale of 3 acres allotment had been fixed under paragraph 11 of the Rehabilitation Settlement Scheme. And that being so no more area could be allotted to the parties concerned. Learned counsel while arguing that a scale could be fixed of maximum area of allotment under paragraph 11 of the Rehabilitation Settlement Scheme, vehemently contended that no such order was passed by any authority and that the assumption made by the D.S.C. in the basic order was factually wrong. This position was not taken before the learned Single Judge in the High Court. The petitioner had enough opportunity to obtain a certificate that no such fixation of the scale took place regarding the village in question. And that' being so no material was placed before the High Court to show that the assumption made by the D.S.C. was incorrect. Otherwise too it being a question of fact we decline to interfere at this stage. This petition fails and is accordingly dismissed. M.Z.M. Petition dismissed.