P L D 1967 Lahore 372 (PLP)

The petitioner filed Writ Petition No. 1397/11 of 1962 which was admitted by my learned brother S. A. Mahmood, J. on the 13th of November 1962. According to the rules of the High Court the petitioner had to deposit process fee and printing charges, etc. for the issue of notices to the other side within 7 days of the order of admission of his writ petition. The petitioner failed to do the needful and ultimately the case was fixed far orders of the Court on the 8th of February 1963. Since the above writ petition was filed by Mr. F. E. Jafri, on behalf of the petitioner, he appeared before the Court, on 8th of February 1963 and it will be useful to reproduce the proceeding of that date which ultimately resulted in the dismissal of Writ Petition No. 1397‑R of 1962 for non‑prosecution. It reads as under:‑ Mr. F. E. Jaffri. States that his client has not responded to his letters addressed to him and he does not appear to be interested in the prosecution of the W. P. Dismissed for non‑prosecution." 2.When the petitioner learnt of the dismissal of his writ petition he filed an application for its restoration through Mr. Gul Muhammad Khan, Advocate, on the 26th of April 1963. Mr. F. E. Jafri the previous counsel, was summoned by this Court in the restoration proceedings and was examined to find out whether there was any sufficient cause for the restoration of the writ petition. It was found that the petitioner had not paid the process fee to his counsel or to the clerk of the counsel and no case for restoration of the writ petition, under Order IX, rule 4, was made out. Consequently his application for. restoration was dismissed on the 23rd of May 1963 and on the 30th of May 1963, the present writ petition was filed in which notice to the other side was issued to consider whether a second writ petition was competent on the same cause of action when the previous one was not pressed and allowed to be .dismissed for non‑prosecution.

3. Mr. Gul Muhammad Khan, learned counsel for the petitioner strenuously urged that the principles of Civil Procedure Code were applicable to the proceedings under Article 98 of the Constitution and it was pointed out by him that even the application for restoration was dismissed by the learned Single Judge on 20th of May 1963 because he was not satisfied that the petitioner was able to make out a sufficient cause within the meaning of Order IX, rule 4, C. P. C. It was, therefore, submitted that the principles of Civil Procedure Code have all along been applied to these proceedings. The first writ petition dismissed for non‑prosecution and this order was an order within the meaning of Order IX, rule 3, C. P. C. The appli cation for restoration was also dismissed saying that no sufficient cause was made out by the petitioner within the meaning of Order IX, rule 4, C. P. C. In support of his contention learned counsel has relied on Nawabzada Muhammad Amir Khan v. Controller of Estate Duty (P L D 1957 Lah.706) wherein their Lordships of the Full Bench have held that in exercise of the writ jurisdiction or any other. civil jurisdiction, where no specific rules of procedure were laid down the broad rules of Civil Procedure Code should be followed.

4. The proposition put forward by the learned counsel for the petitioner has not been seriously disputed by the other side. However, the learned counsel for the respondent has relied on the authority of their Lordships of. the Supreme Court in Muhammad Yaqub v. Chief Settlement Commissioner (P L D 1965 S C 254) and states that the principles of res judicata are applicable. In my opinion this authority supports the case of the petitioner. Their Lordships of the Supreme Court referred to the provision of law laid down under section 11 of the C. P. C. and applied the principles of constructive res judicata to the pleadings of the parties in proceedings in writ jurisdiction. It will be useful to reproduce the relevant portion of the judgment of their Lordships of the Supreme Court in this context; it reads as under:- "There is still further difficulty. Even at the time when the first writ petition was filed the appellant could have relied on sub‑para. 15(3). That petition was dismissed and no appeal was filed against the order of the High Court dismissing it. Nothing occurred subsequently which could entitle the appellant to file a fresh petition. A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review if such a petition be maintainable. The general principle of res judicata is applicable to writ petitions also." If the case of the petitioner would have been dismissed under Order IX, rule 8, C. P. C. then the petitioner would have been precluded from bringing a fresh petition under Order IX, rule 9, C. P: C. but in the present case the writ petition was dismissed for want of prosecution within the meaning of Order IX, rule 3, C. P. C. and as such a second petition will be competent under Order IX, rule 4, C. P. C. It will be useful at this stage to reproduce the provision of Order IX, rule 4, C. P. C. which reads as under: "

4. Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court‑fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non‑appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit." Taking into consideration the plain language of the above rule, it is clear that two remedies are available to x party whose case has been dismissed for non‑prosecution. He may either apply for an order to set the dismissal aside and satisfy the Court that there was sufficient cause for his not paying the court fee and other charges, etc., as required within the time fixed before the issue of the summons and in case he has failed in this attempt he may bring a fresh petition within the meaning of first part of Order IX, rule 4, C. P. C. Relying on the authority of the Full Bench of this Court and the latest decision of their Lordships of the Supreme Court as already cited by me earlier in this judgment, I hold that a second writ petition under & Article 98 of the Constitution of Islamic Republic of Pakistan is competent within the meaning of Order IX, rule 4, C. P. C. when the first petition was dismissed for want of prosecution.

5. As a result of the above finding I order that the petitioner's second Writ Petition No. 1394‑R of 1963 may be placed for necessary orders in motion. Since this is an old case it may be fixed at an early date. K. M. A. Order accordingly.