DAULAT ALI Versus BARGUZIDA MUNTIZAR
This matter concerns a petition for leave to appeal against an order of the High Court, which dismissed a writ petition challenging a 1960 transfer order and a 1967 Permanent Transfer Deed (P.T.D.). The petitioner's initial writ petition was dismissed for non-prosecution, and subsequent restoration applications were also dismissed. The petitioner then filed a fresh writ petition, which the High Court dismissed in limine, reasoning that it was an attempt to review the previous dismissal order and that the challenge was barred by laches. The core legal question was whether a fresh writ petition is maintainable after a previous one is dismissed for non-prosecution, and whether the High Court correctly exercised its discretion in dismissing the petition due to delay. The Supreme Court acknowledged that while a fresh petition might be procedurally permissible under Order IX, Rule 4, Code of Civil Procedure 1908, the High Court was justified in refusing to exercise its discretionary writ jurisdiction due to the significant delay in challenging the long-standing transfer order and P.T.D. The petition was accordingly dismissed for lack of merit.
- Is a fresh writ petition maintainable after a previous writ petition has been dismissed for non-prosecution?
- Can the High Court refuse to exercise its discretionary writ jurisdiction on the grounds of laches despite the procedural availability of a fresh petition?
- Order IX Rule 4, Code of Civil Procedure 1908
ORDER
M. S. H. QURAISHI, J.‑ The petitioner had challenged the transfer order dated 15th October, 1960 passed in favour of the predecessor‑in- interest of the respondents and the consequential P. T. D. issued on 11th May, 1.967, through Writ Petition No. 903/11 of 1979. The petition was dismissed for non‑prosecution on 5th March, 1960. An application was moved for its restoration but the learned Judge not satisfied with the explanation offered directed the petitioner's counsel on 6th July, 1980 to furnish affidavit as to what had prevented him from appearing in the case. The affidavit was not furnished until 30 th September, 1980, with the result that the application was dismiss ed. A fresh application for restoration moved after about a month was dismissed on 26th November, 1980. The petitioner, there upon, moved Writ Petition No. 53/11 of 1981 but the same, too, was dismissed in limine by the impugned order dated 24th February, 1982 holding that the subsequent wait petition was no more than (an attempt to have the previous order reviewed for. which there was no justification and that the impugned transfer order and the P. T. D. having issued long way back, the writ petition also suffered from ]aches. Aggrieved, the petitioner seeks leave to appeal.
2. It is contended that the earlier writ petition having been dis missed for non‑prosecution, the petitioner was, under Order IX, rule 4, C. P. C., entitled to move a fresh one which could not be called a review. Reliance for this was placed on Mahboob‑ur‑Rehman v. Government of West Pakistan (P L D 1968 Lab. 1085), Ramzan Ali Premji Khoja v. Kassim Brothers & Co. (P L D 1957 Kar. 224) and Atta Muhammad v. Rehmat Ali (P L D 1.967 Lab. 372). The contention may be correct, but the fact remains that the attempt to challenge in 1981 a transfer order issued as far back as 1960 and a P. T. D. issued in 1967 was very belated. The High Court was, therefore, not Unjustified in refusing‑to exercise the discretionary jurisdiction in favour of the petitioner. The petition has no merit and is accordingly dismissed.
Petition dismissed.