MUHAMMAD vs ADDITIONAL SECRETARY, GOVERNMENT OF N.W.F.P., HOME AND TRIBAL AFFAIRS DEPARTMENT and 8 others
This petition for special leave to appeal was filed against the judgment of the Peshawar High Court, which dismissed the petitioner's constitutional writ petition. The Supreme Court considered whether a second writ petition on the same subject-matter and seeking identical relief is maintainable after an earlier writ petition was withdrawn without obtaining permission to file a fresh one. The Supreme Court upheld the High Court's dismissal, holding that the petition lacked merit and was barred. Applying the principles enshrined in Order XXIII Rule 1(3) of the Code of Civil Procedure 1908, the Court held that withdrawing a prior petition without liberty to institute a fresh one renders the earlier High Court order final, thereby barring a subsequent writ petition filed on the same subject-matter for similar relief. The Court affirmed that authorities executing possession must verify that the gifted land corresponds to that taken from the petitioner, and dismissed the petition for leave to appeal.
- Is a second writ petition maintainable when an earlier writ petition involving the same subject-matter was withdrawn without permission to file a fresh one?
- Do the principles of Order XXIII Rule 1(3) of the Code of Civil Procedure 1908 apply to bar subsequent writ petitions filed for the same relief?
- Order XXIII Rule 1(3), Code of Civil Procedure 1908
ORDER
1. ' USMAN ALI SHAH, J.--This petition for special leave to appeal has arisen from the judgment of the Peshawar High Court, Peshawar, whereby Writ Petition No, 256 of 1986 of the petitioner against the order of the Addl. Secretary Home and Tribal Affairs Peshawar (respondent No, 1) was dismissed by the impugned judgment.
2. After hearing the learned counsel and going through the record of the case we have come to the conclusion that this petition has no force and deserves dismissal straightaway. Because a perusal of record shows that an earlier Writ Petition No, 523 of 1978 was withdrawn without the permission to file a new writ petition. Hence, the order dated 30-8-1979 of the learned High Court remained unchanged and is final. Since the subject-matter of the earlier writ petition is the same and a similar relief is claimed by the petitioner in both the writ petitions. Thus under the provisions of Order XXIII, Rule 1(3) of the C.P.C. This writ petition was rightly dismissed. The learned Judges of the Division Bench of the High Court have dismissed the subsequent writ petition with the observation that at the time of delivery of possession to respondents Nos. 3-9 the authority concerned is to satisfy himself that the land gifted to Arshullah is the same of which the possession was taken from Muhammad petitioner.
3. ' Under the circumstance of the case, we dismiss this petition being without merit.
Cited by 2 cases
- Messrs CHINA HARBOUR ENGINEERING Co. vs WATER AND POWER 2001 YLR 1781
- M/s. CHINA HARBOUR ENGINEERING CO. vs WATER AND POWER DEVELOPMENT 2001 C.L.R. 1701