2003 PLP 991 (YLR)

The brief facts out of which present appeal arises are that the appellant filed Constitutional Petition No. 14921 of 1999 which was dismissed by the learned Single Judge vide order, dated 7‑6‑2002. The appellant being aggrieved filed Review Application No. 118 of 2002 which was dismissed by the D.B. of this Court on 12‑9‑2002 as time‑barred. The appellant being aggrieved filed this I.C.A. challenging the vires of order of the learned Single Judge, dated 7‑6‑2002.

2. The learned counsel of the appellant submits that the impugned order is without lawful authority. The Constitutional petition be transferred to High Court Multan Bench in view of section 3 of the High Courts (Establishment Order) Punjab Amendment Ordinance, 1981.

3. We have considered the contention of the learned counsel of the appellant and perused the record.

4. It is better and appropriate to state the facts in chronological order to resolve the controversy in the present I.C.A. The appellant filed Writ Petition No. 14921 of 1999 on 11‑8‑1999 at principal seat which was dismissed by the learned Single Judge vide impugned judgment, dated 7‑6‑2002. The appellant filed time‑barred Review Application No. 118 of 2002 alongwith application' for condonation of delay under section 5 of the Limitation Act. The review application was dismissed by the D.B. of this Court as time‑barred vide order, dated 12‑9‑2002. The appellant filed present I.C.A. on 27‑9‑2002 against the original impugned judgment of the learned Single Judge, dated 7‑6‑2002 without filing any application for condonation of delay. The Intra‑Court Appeal has become time‑barred. The appellant did not file any application for condonation of delay for tiling of time‑barred I.C.A. It is settled principle of law that the Court cannot condone the delay without filing an application for condonation of delay by the appellant under section 5 of the Limitation Act as per principle laid down by the Hon'ble Supreme Court in Ataullah's case (PLD 1964 SC 236). It is also admitted fact that the appellant did not challenge the order of D.B. passed in review application, dated 12‑9‑2002, therefore, the impugned judgment of the learned Single Judge has merged in the aforesaid order of the D.B. The contention of the learned counsel of the appellant that the Constitutional petition be transferred to High Court Multan Bench, has no force in view of law laid down by the Hon'ble Supreme Court in "Syed Ahmad Ali Rizvi. v. The State" (PLD 1995 SC 500). It is pertinent to mention here that the appellant himself filed Constitutional petition at principal seat, therefore, the appellant cannot raise this plea on well‑known principle of approbate and reprobate, estoppel and waiver as per principle laid down by the Hon'ble Supreme Court in Ghulam Rasool's case (PLD 1971 SC 376). Even otherwise I.C.A. is also not maintainable in view of proviso of section 3(2) of Law Reform Ordinance, 1972 as the' appellant himself availed remedy of review against the impugned judgment. In view of what has been discussed above, this I.C.A. has no merit and the same is dismissed. H.B.T./A‑342/L Appeal dismissed.