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Civil Petition for Special Leave to Appeal No. 135 of 1967, decided on 5th October 1967.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th February 1967, in Writ Petition No. 1069 of 1966).
Art. 98‑Other remedy open‑Civil suit‑Aggrieved party having right to appeal failing to avail of that opportunity‑Cannot challenge decision by invoking writ juris diction of High Court.
Muhammad Ishaq Faruqi Advocate Supreme Court instructed by S. Wajid Hussain, Senior Attorney for Petitioners.
Nemo for Respondents.
Date of hearing : 5th October 1967.
The petitioner's suit for a declaration that an ex parte decree had been obtained against them by respon dent No. 2 by fraud, was dismissed till the first appellate Court. The petitioners, however, did not file any second appeal against the said judgment and decree. After about 9 months of the dismissal of their first appeal they filed a writ petition in the High Court for a direction or order declaring the said ex parte decree to be without lawful authority and of no legal effect'. The High Court dismissed the petition in limine. They now seek special leave to appeal against the order of the High Court.
In our opinion, the High Court rightly refused to exercise it writ jurisdiction in this case. It will suffice to say that if in civil matter the Court records a decision and the aggrieved part does not appeal, he becomes bound by that decision and lose all right to challenge that decision. By invoking writ jurisdiction he cannot by‑pass the procedure laid down for civil proceedings,
The learned counsel has contended that due to emergency in the country the petitioners could not file the second appeal. The learned Judges of the High Court have rightly pointed out that this contention is neither factually correct nor legally main tainable'.
In our opinion, the High Court rightly dismissed in limine the misconceived writ petition.
This petition is accordingly dismissed.
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