ZIA-UR-RAHMAN Versus PROVINCE OF PUNJAB

ORDER

MUHAMMAD ASADULLAH, J .‑‑The house in dispute was allegedly allotted to Rafiq‑ur‑Rehman, father of the appellant. The house in dispute was transferred to Siraj‑ur‑Rehman, a brother of the petitioner on his C.H. form. However, the same was resumed and auctioned perhaps because the said Siraj‑ur‑Rehman could not pay the price of the same. The appellant alleges that he himself had filed a separate C.H. form for the same house which form has not as yet been disposed of. However, he started paying rent allegedly under protest, to respondent No.4 but thereafter litigation between the parties started and the appellant also made applications to the Rehabilitation and Settlement Department for disposal of his C.H. form. He was unsuccessful there. He then filed W.P. No.17‑R of 1984 challenging the legality of issuance of PTD, on the basis of the auction, in favour of respondent No.4. This writ petition was dismissed as withdrawn. He also filed another W.P. No.11‑R of 1985 which was also dismissed as withdrawn. This is a third writ petition filed by him to challenge the transfer of the house in favour of respondent No.4. The writ petition was dismissed by a learned Single Judge of this Court vide order dated 10‑6‑1985. This I . ‑C . A . has 'been filed to challenge the said order. We have perused the record and have heard the arguments.

2. As narrated above, the petitioner filed two writ petitions prior to the filing of this petition which he withdrew unconditionally. He did not seek permission to file a fresh writ petition in regard to the same subject matter and he did not withdraw the same on account of, any technical or formal defect. The learned counsel for the appellant states that in the earlier writ petitions he had not challenged the orders through which he was refused the transfer of the house on the basis of his C . H . form. This plea has no legs to stand upon because it is a fundamental principle of law, applicable to the civil' suits as also to the writ petitions, that a point or a plea which was available to a petitioner and was not taken by him in the earlier suit, or writ petition will be deemed to have been taken up and refused on will be deemed to have been abandoned. Therefore, the said plea, which is not a new plea and which has not arisen after the filing of the earlier writ petitions could be taken in the earlier writ petitions. It was not taken up in the same and it will be taken that it was given up and abandoned. The appellant had not only filed the said whit petitions but had also been filing applications and applications before the Rehabilitation and Settlement Authorities but after his brother had lost the property through his own fault and the same had been auctioned. Apart from the said applications he had a round of litigation up to this Court through a civil suit. He cannot be allowed to drag on a rightful transferee of the house through multiple writ petitions. We agree with the learned Single Judge that the constitutional writ jurisdiction of this Court is a discretionary jurisdiction and the discretion cannot be exercised in favour of a petitioner with such a conduct. The present writ petition cannot succeed on this principle and is not maintainable in view of the withdrawal of earlier writ petitions. The I.‑C.A. is dismissed in limine.

A.A./Z‑62/L ' Petition dismissed.