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Writ Petition No. 1475 of 1966, decided on 7th March 1968.

Art. 98‑Writ petition‑Laches Second petition competent if previous petition dismissed for non prosecution‑Provisions of Civil Procedure Code, 1908 not applic able to proceedings under Art. 98, yet, principles embodied in O. IX, r. 4, held, applicable to such proceedings‑‑ Correct approach would be to ignore previous petition altogether‑‑‑Second petition would, however, be subject to question of laches etc.‑Fact that impugned order a nullity in law does not by itself condone delay‑‑Civil Pro cedure Code (V of 1908), O. IX, r. 4.

Alta Muhammad v. Rahmat Ali and others P L D 1967 Lah. 372 ref.

Gul Muhammad Khan for Petitioner.

Date of hearing: 7th March 1968.

The petitioner, Mahboob‑ur‑Rahman, was serving as an overseer in the Public Health Sub‑Division at Sargodha, when he was served with a notice on the 9th of April 1959 to show cause, not later than the 16th of April 1959, why disciplinary action should not be taken against him for unsatisfactory service. The notice had emanated from the Chairman of the District Screening Committee, Sargodha. On the 1st of July 1959, the decision of the Screening Committee, recommending the petitioner's dismissal from service, was conveyed to him and he was informed that he could file an appeal against these orders within one week, failing which the decision shall become final. The petitioner filed an appeal/ representation, which was rejected and intimation to this effect was conveyed to him by the Superintending Engineer of the Lahore Public Health Circle in his memorandum dated the 3rd of August 1959. This order was then substituted by an order dated the 9th of October 1959 purporting to have been made by the Superintending Engineer in exercise of the powers conferred on him by sub‑clause (b) of clause (5) of Article 6 of the Laws (Continuance in Force) Order, 1958. It is stated that the petitioner then filed another representation in October 1959 and this remained pending with the Depart ment until 1962, when he was informed that nothing could be done to help him. Thereupon the petitioner moved Writ Petition No. 1175 of 1962, in which a report was called by the order of the Bench dated the 12th of April 1963. After the receipt of the report, the case was placed in motion and came up before the Bench on the 16th of November 1965, but was dismissed in default as the petitioner and his counsel failed to appear. Thereafter the petitioner made an application for the restoration of his writ petition but this application was dismissed by the learned Judges on the 27th of June 1966. The present petition was filed on the 6th of August 1966 to challenge the same order of dismissal.

2. The first question which arises in this case is regarding the maintainability of the present petition in view of the dismissal of the previous petition on the 16th of November 1965, and the refusal of the learned Judges to restore that petition on the ground that sufficient cause was not shown to their satisfaction. It is submitted by the learned counsel for the petitioner that the dismissal of the previous petition is not a bar in the way of moving a fresh petition on the same cause of action and that the petitioner has been studiously pursuing the matter since the order was made in 1959, in spite of the dismissal of his previous petition. It is further submitted that in any case the impugned order being one without jurisdiction, a duty is cast upon this Court to declare it as such, irrespective of any possible default or negligence on the part of the petitioner.

3. In support of these submissions the learned counsel has first drawn our attention to Alta Muhammad v. Rehmat Ali arid others (P L D 1967 Lah. 372), in which a learned Single Judge of this Court has held that if a writ petition is dismissed for non‑prosecu tion, a second petition is competent in view of the principle embodied in rule 4 of Order IX of the Code of Civil Procedure. We are in respectful agreement with this view as although the provisions of the Code of Civil Procedure do not apply as such to proceedings under Article 98 of the Constitution, yet the principles do apply. Accordingly we now proceed to examine the position that emerges by the application of the principle embodied in rule 4 mentioned above. This rule lays down that where a suit is dismissed under rule 2 or rule 3, the plaintiff may, subject to the law of limitation, bring a fresh suit ; or he may apply for an order to get the dismissal set aside. In the present case, if the dismissal of the petitioner's previous writ peti tion is not to be regarded as a bar in the way of his filing a fresh petition, then the question of delay will have to be examined on the principle that rule 4 does not extend limitation where a suit is dismissed in default. To put it differently, the position will be as if the previous writ petition had not been instituted, for otherwise the effect of the dismissal of that petition would have to be taken into account for determining whether the petitioner had been negligent in pursuing his remedy. We consider that the petitioner cannot have it both ways, namely, being regarded as negligent in pursuing the previous petition and thus having it dismissed for want of prosecution, and yet using that very fact to his advantage to show that he was studiously pursuing his remedy from the date of the departmental orders 7 he correct approach, therefore, would be to ignore then previous petition altogether.

4. On this view of the matter we find that the last order by the Department was made in 1962 and the present petition was moved in August 1966, and if the filing of the previous petition and its dismissal in default are ignored as being of no consequence either way, then the petitioner hay allowed a period of four years to elapse before invoking the jurisdiction of this Court. The order of dismissal was passed in 1959, as already stated above, i. e., nearly eight years ago from to‑day. The contention that the order is without jurisdiction and, therefore, a nullity in the eye of law does not in any manner condone the delay that must be presumed to have occurred on the part of the petitioner in instituting the present petition. We are not aware of any authority laying dawn the principle that once a question of jurisdiction is raised then the question: of laches is not to be tonsNwre.1 by the Court while acting under Article 98 of the Constitution.

5. For the foregoing reasons, we consider that the present petition is highly belated, and we see no justification to condone the delay and examine the case on merits. The petition is, therefore, dismissed in limine.

A.E. Petition dismissed

in limine.

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