MUHAMMAD ANWAR ETC. vs QADIR ETC.S
This petition for leave to appeal arises out of an order of the Lahore High Court dismissing a writ petition and a subsequent order dismissing a review application. The core legal question concerned whether a writ petition could be decided in the absence of the petitioners and whether a review application could be treated as an application under Order XXII, Rule 9(2) of the Code of Civil Procedure 1908. The Supreme Court held that the petition against the main judgment was hopelessly barred by 432 days with no sufficient cause shown for condonation of delay. Furthermore, the Court held that a point not urged before the High Court could not be permitted to be taken up for the first time before the Supreme Court, and the review application was rightly dismissed. The key principle laid down is that new legal grounds or points not raised before the lower court cannot be urged for the first time in a petition for leave to appeal, and a time-barred challenge without sufficient cause cannot be entertained.
- Whether a petition for leave to appeal barred by a long delay can be entertained without showing sufficient cause for condonation?
- Can a party raise a new legal point for the first time before the Supreme Court that was not urged before the High Court?
- Whether a review application can be treated as an application under Order XXII, Rule 9(2) of the Code of Civil Procedure 1908 when it was not urged as such before the lower court?
- Order XXII Rule 9(2), Code of Civil Procedure 1908
- Law Reforms Ordinance, 1972
ORDER
1. NASIM HASAN SHAH, J.-This petition for leave to appeal is directed against the order of the Lahore High Court, Lahore, dated the 27th October, 1975, dismissing the writ petition of the predecessor-in- interest of the petitioners and also the order dated the 21st January, 1977 dismissing the review application filed by them.
2. The facts briefly an that the predecessor-in-interest of petitioner to 5 (Inayat) arid the predecessor-in-interest of petitioners 6 to 14 (Barkat), along with three others filed a writ petition in the Lahore High Court against the order of the Member, Board of Revenue, dismissing the revision petition filet by then before him. The writ petition was admitted to regular hearing and came up for final hearing on the 27th October, 1975. On that date counsel for the petitioners was absent and a request was made for an adjournment but the same was rejected and learned Judge in the High Court proceeded to hear the case on merits. After hearing the counsel for the respondent he dismissed the writ petition vide older dated the 27th October, 1975.
3. The present petitioners filed an application for review against the said order on the grounds Inter alia that their respective predecessors-in-interest had died during the pendency of the writ petition and the writ petition had been dismissed in their absence and therefore, the aforesaid orders necessitated review.
4. 'The above-mentioned application for review was also dismissed by the learned Judge ride his order dated the 21st January, 1977. He observed that Inayat and Barkat had died in the year 1975 and it was the duty of the petitioners to have got themselves impleaded as a party. He also added that the writ petition could have been decided in the absence of the petitioners in view of the provisions of the Law Reforms Ordinance, 1972.
5. We observe that so far as the petition for leave to appeal, against the order dated the 27th October, 1975, whereby the writ petition was dismissed is concerned, it Is barred by 432 days arid that sufficient cause for condonation of this long delay has not been shown. No interference with the order dismissing the writ petition is therefore, possible.
6. So far as the prayer for grant of leave to appeal against the order dated the 21st January, 1977, dismissing the review application is concerned, the learned counsel for the petitioners himself conceded that the application for review was misconceived. According to him an application under Order XXII, rule 9(2) of the C. P. C. Was however, competent and that the review application should have been treated as an application under Order XXII, rule 9(2), C. P. C. And disposed of accordingly.
7. We observe that this point was not urged before the learned Judge of the High Court and we cannot permit. It to be taken up for the first time before us. The review petition as presented and argued before him was rightly dismissed. The said order is also, therefore, not open to an interference.
8. The upshot is that this petition for leave to appeal must fail and is hereby dismissed.