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Civil Petition for Special Leave to Appeal No. 136-R of 1978, decided cry 19th February 1980.
(On appeal from the judgment and order of the Lahore High Court dated 16th November 1978, in W. P. 4319-S/78).
----Art. 199-Writ jurisdiction-High Court while granting ad interim stay also deciding stay application at motion stage behind back of opposite-party-High Curt, held, while admitting writ petition com petent only to pass ad interim order and stay application could be decided after notice to parties affected.
A Yusuf Ali Khan, Advocate for Petitioner.
M. A. Qureshi; Advocate-on-Record for Respondents.
Date of hearing : 19th February 1980.
In view of the order we are passing, it will be suffi cient to state that the dispute between the petitioner and the fourth respon dent is about seniority in service and after his appeal before the Punjab Service Tribunal had been ordered to be consigned to the record by the Punjab Service Tribunal by its order dated 29-5-1978, the fourth-respondent filed a writ petition in the Lahore High Court against the petitioner and the first three respondents in this petition for leave, and together with the writ petition he had sought a stay of the order by which he was aggrieved.
The writ petition game up for admission together with the stay applica tion before a learned Single Judge of the Lahore High Court on 15-11-1978. The learned Single Judge admitted the writ petition and ordered notice to the respondent. He then granted a stay to the fourth respondent and Mr. Yusuf Ali Khans real grievance is about the terms on which this was granted. Hence this petition for leave.
Mr. Yusuf Ali Khan submitted that the fourth respondent's writ petition was hit by the bar of Article 212 of the Constitution. As he also raised other legal objections to the maintainability of the writ petition, we observed that he, was free to raise these objections in the High Court.
Learned counsel then criticized the second part of the impugned order which deals with the stay application of the fourth respondent. Learned counsel's grievance was that the learned Single Judge had decided the stay application in the fourth respondent's favour at the motion stage without even giving notice to the respondents in the writ petition. We, therefore, observed that at the motion stage, the learned Single Judge was only competent to pass an ad interim order and that the stay application had not been disposed of by the High Court. Mr. Yusuf Ali Khan stated that he would not press his other objections if we clarified that the impugned order had not finally decided the fourth respondent's stay application.
The request of learned counsel is fair and Mr. Mahmood Ahmad Qureshi very rightly conceded that the learned Single Judge was only competent whilst admitting the writ petition to pass an ad interim order. Therefore, by consent we converted the petition into an appeal and allowed it to the extent that the order of 15-11-1978, is valid as ad interim order only. The fourth respondent's stay application should, therefore, be decided by the High Court after notice to the parties and as the ad interim stagy was give more than a year ago, we hope that the stay application will be decided expeditiously. As Mr. Mahmood Ahmad Qureshi did not attempt to defend the impugned order, we do not award any costs.
Order accordingly.
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