GOVERNMENT OF PUNJAB through Secretary, Excise and Taxation

ORDER

' ANWAR ZAHEER JAMALI, J.---These appeals with leave of the Court vide order dated 20-7-2004, challenge the judgments/orders dated 7-10-2003 passed in I.C.As. Nos. 557 and 781 of 2002 dated 22-12-2003 passed in Writ Petition No,16074 of 2003, dated 23-12-2003 passed in Writ Petitions Nos.5954, 6050, 6051, 6052, 8191, 3515, 8173, 8172, 6091, 6092, and dated 19-5-2004 passed in Writ Petition No,8889 of 2003 respectively.

2. By order dated 7-10-2003, two Intra Court Appeals preferred by the appellants before the Lahore High Court against the judgments dated 7-3-2002 and 5-7-2002, in Writ Petitions Nos.3239 and 9735 of 2002 respectively, were dismissed, being barred by time only other judgments dated 22-12- 2003 Writ Petition No,16074 of 2003, dated 23-12-2003 Writ Petitions Nos. 5954, 6050, 6051, 6032, 8191, 3515, 8173, 8172, 6091, 6092 and 19-5-2004 Writ Petition No,8889 of 2003, were dismissed, against which no remedy of Intra Court Appeal in terms of section 3(2) of the Law Reforms Ordinance 1972 (the "Ordinance of 1972") was followed. At the time of grant of leave to appeal, vide order dated 20- 7-2004, the question of maintainability of these petitions/appeals was raised on behalf of the respondents and thus, it was kept open for determination in accordance with law. In this regard, reference was also made to the case of Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344).

3. Today, we have heard learned Advocate Supreme Court for the appellants/petitioners in these connected cases on the question of maintainability. As regards the impugned order dated 7-10- 2003, passed in two Intra Court appeals, his submission is that indeed these appeals were time barred as held by the Lahore High Court, but as the question of law involved is common in all these cases, therefore, in the larger interest of justice these appeals should also have been heard on merits. In the other set of appeals arising out of three different judgments of the High Court, on the question of maintainability, he placed reliance upon the two judgments of this Court in the case of Pakistan Telecommunication Co. Ltd. v. Lqbal Nasir (PLD 2011 SC 132) and Federation of Pakistan v.

Dewan Petroleum (Pvt.) Ltd. (PLD 2012 SC 189), and argued that non-availing of remedy of Intra Court Appeal was not fatal to the maintainability of these appeals/petitions, as the practice of filing Intra Court Appeal is only a rule for regulating exercise of discretion, which otherwise does not oust or abridge the Constitutional jurisdiction of the apex Court. Therefore, in certain exceptional circumstances the Supreme Court can entertain direct petition despite availability of remedy of Intra Court Appeal under proviso to section 3(2), of the Ordinance of 1972. Learned ASC, when confronted with another judgment of seven Members Bench of this Court in the case of Ch. Muhammad Ilyas Gujjar v. Chief Election Commissioner of Pakistan (PLD 2011 SC 961), wherein due to non-availing of remedy of Intra Court Appeal, petitions were found not maintainable and thus disposed of with the observation that the petitioner may avail the remedy of Intra Court Appeal under section 3(2) of the Ordinance of 1972 before the High Court, while the Court seized of these Intra Court Appeals was directed to examine the question of limitation in filing of the Intra Court Appeal favourably, has no plausible defence to offer in this regard.

4. Having considered the ratio of above three cases and the facts and circumstances of the present case, we find that there are no exceptional circumstances, which may justify the act of appellants/petitioners to bypass the remedy of Intra Court Appeal available to them under section 3(2) of the Ordinance of 1972, thus, the two judgments referred to by the learned Advocate Supreme Court for the appellants/petitioners are of no help to their case on the point of maintainability. This being the position, all these appeals/petitions, being not maintainable are dismissed, except the two arising out of the order dated 7-10-2003. However, in line with the judgment of seven Members Bench in the case of Ch. Muhammad Ilyas Gujjar (supra), we leave it open for the appellants/petitioners to avail the remedy of Intra Court Appeal under section 3(2) of the Ordinance of 1972. We expect that if such Intra Court appeals are filed, the honourable Bench seized of the matter will examine the question of limitation leniently so as to adjudicate the case of the appellants/petitioners on merits and in accordance with law.

5. As regards the remaining two appeals, the impugned judgment dated 7-10-2003, dismissing these appeals on the point of limitation, is also set aside; and, in view of the peculiar facts and circumstances of the case such delay is also condoned. These appeals, therefore, may also be heard along with other Intra Court Appeals regarding similar controversy, which the appellants, as stated, intend to file before the Lahore High Court.