1987 PLP 1515 (CLC)

This writ petition is directed against order, dated the 28th June, 1974, passed by Malik Jehangir Khan, Additional Commissioner (Revenue), Lahore Division/ Settlement Commissioner, Lahore. Before making this writ petition, the petitioners, Nemat Khan and another, filed Writ Petition No. 43‑B of 1975 against the above order. That writ petition was dismissed on 6th May, 1975, for want of prosecution and; due to the petitioners' failure to deposit process fee. They moved al petition (C.M. No. 3/75) on 21st June, 1975 for restoration of the writ' petition but that too was dismissed in default on 3rd July, 1975. Thereafter, they submitted another petition (C.M. No.5 of 1979) for restoration of the writ petition but it was withdrawn on 28th February, 1979. Before its withdrawal the petitioners had filed the instant writ petition of 7th February, 1979.

2. With reference to absence of the petitioners on the date on which their earlier writ petition was dismissed in default, it was urged by learned counsel for legal representatives of respondent No.2, Mst. Ghosen, that the writ petition in hand was not maintainable. His plea was that since the earlier writ petition was not got restored by the petitioners, they could not file the instant writ petition. For this proposition, reliance was placed by him on Order IX, rule 9 of the Code of Civil Procedure. As regards the failure of the petitioners to deposit process fee in their first writ petition, argument of learned counsel for the legal representatives of respondent No.2 was that they could file a fresh writ petition if the same did not suffer from the defect of laches but since the present petition did suffer from that defect it was not entertainable. In this connection, he relied upon Order IX, rule 4 of the Code of Civil Procedure. In reply, it was submitted by learned counsel for the petitioners that since the second petition for restoration of their former writ petition was withdrawn by petitioners, there was nothing wrong with the maintainability of the instant writ petition.

3. It was not disputed by learned counsel for the petitioners that principles of the Code of Civil Procedure are applicable to writ petitions also. On the dismissal of their earlier writ petition in default, the petitioners could make a petition for restoration thereof, under Order IX, rule 9 of the Code of Civil Procedure, but could not file a fresh writ petition. They did make two petitions for restoration of their earlier writ petition of which the first one was dismissed in default and other one was withdrawn by them after filing of the writ petition in hand. By so doing, they ran a great risk against the provisions of Order IX, rule 9 of the Code of Civil Procedure which did not permit them to file a fresh writ petition. I, therefore, agree with learned counsel for legal representatives of respondent No.2 that this writ petition is barred by Order IX, rule 9 of the Code of Civil Procedure.

4. Having dealt with default of the petitioners in the matter of entering appearance before this Court to prosecute their first writ petition, I now revert to their failure to deposit process fee in that writ petition. If a suit is dismissed for non‑deposit of process fee, a fresh suit can 6e filed under Order IX, rule 4 of the Code of Civil Procedure, within the period of limitation. No period of limitation has been prescribed for constitutional petitions. However, if any such petition suffers from the defect of laches it can be dismissed on that ground. While examining the question of limitation or laches, period spent by a party at fault in connection with an earlier suit or writ petition cannot be deducted. It was so held in Chintaman v. Kisan and another A I R 1929 Nag. 219 which was followed by me in the Aziz Din and another v. Qadir Bakhsh and 2 others P L D 1987 Lah.

119. This second writ petition was filed by the petitioners after about 5 years of the passing of the impugned order. Obviously, therefore, it suffers from the defect of laches. As stated above time spent by the petitioners in connection with their earlier writ petition or the applications for restoration thereof cannot be deducted from the said period of about 5 years, I, therefore, agree with learned counsel for legal representatives of respondent No.2 that the petitioners have been guilty of laches in the matter of filing the instant writ petition and, therefore, it deserves to be dismissed on that ground.

5. Even if the principles of Code of Civil Procedure are not applied to this constitutional petition, it would not be entertainable for other reasons. Constitutional jurisdiction is of discretionary nature and the petitioners were extremely negligent in invoking that jurisdiction. This is evident from the fact that their earlier writ petition was dismissed in default and petition for restoration thereof was also dismissed for want of prosecution. They then made another petition for restoration of the first writ petition but the same was withdrawn after filing the writ petition in hand. Thus, they were not only grossly negligent but also played hide and seek with this Court. In other words, while approaching this Court with the instant writ petition they did not come with clean hands. They, in fact, attempted to circumvent the law. In view of this conduct on their part, therefore, they cannot be permitted to invoke the constitutional jurisdiction of this Court for the second time. In Fazal‑ur‑Rehman Mahmood and another v. Additional Settlement Commissioner (Land) and 2 others 1984 C L C 1100 : it was held by Division Bench of this Court (of which I was also a member) that if a party is not prompt and diligent in pursuing the constitutional remedy, the Court can refuse to exercise constitutional jurisdiction in his case. Second writ petition of the petitioners, which is the instant petition, should, therefore, fail due to culpable negligence on their part in the matter of prosecuting the first writ petition and the petitioner for restoration thereof, and coming to this Court with unclean hands.

6. Looked from any angle, this writ petition is not entertainable. It is, therefore, dismissed with costs, without expressing any opinion on merits. M. B. A./N.‑27/L Petition dismissed.