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Constitutional Petition No.S-174 of 1981, decided on 25th November. 1986.

---Art.199--Constitutional petition, maintainability of--Where discretion vesting in subordinate Tribunal in rejecting application, seeking restoration of case dismissed for non-prosecution was not exercised by such Tribunal arbitrarily or fancifully, but justifiably, no constitutional petition against such exercise of direction by Tribunal, held, could be maintainable.

Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 S C 139 ref.

Saleem Iqbal for Petitioner.

Maroof Ali Khan for Respondents.

Date of hearing: 25th November, 1986.

This petition is directed against two orders passed by the learned Additional Commissioner, Hyderabad Division, dated 13-10-1986 and 31-12-1980 respectively. Some dispute existed in regard to the allotment of evacuee land situated in Taluka Shahdadpur, District Sanghar. The petitioner filed a constitutional petition before the Court which was allowed vide judgment, dated 13-6-1974 and the case was remanded to the Additional Commissioner, Hyderabad (Settlement & Rehabilitation Commissioner) Hyderabad Division, Hyderabad for reconsideration on merits after issuance of notice to the parties concerned. Thereafter, the case came up for hearing before the learned Additional Commissioner, Hyderabad Division on 13-10-1980 and as it is indicated by his, order of the same date, the petitioner as well as his attorney and Advocate remained absent on the date of hearing despite notice. As it appears from the aforesaid order, that the attorney of the petitioner had appeared before the learned Additional Commissioner on 20-4-1980 and, thereafter, the case had been adjourned to 1-6-1980, when the attorney and the Advocate of the petitioner remained absent. Three more chances thereafter were given to the petitioner to appear in the case, but it appears, that neither he nor his advocate appeared before the learned Additional Commissioner on the next dale of hearing which was 13-10-1980, with the result that the case was dismissed by him for non-prosecution. On 13-12-1980, the petitioner, after waiting for more than two months filed an application before the learned Additional Commissioner for restoration of his case on the ground that he had been confined to bed due to heart trouble and his advocate was not available and, therefore, he had sent a telegram on 12-10-1980, requesting for adjournment of the case. However, it transpired that the telegram had been addressed to the Commissioner, Hyderabad instead of the Additional Commissioner, Hyderabad. The learned Commissioner was, however, not impressed by the reasons given by the petitioner and consequently, he dismissed his application for restoration of the case.

After hearing Mr. Saleem Iqbal, learned counsel for the petitioner and Mr. Maroof Ali Khan, learned counsel for the respondents Nos.2 and 3, it appears to me that this petition is misconceived. First of all, the reasons stated by the petitioner for his non-appearance before the learned Additional Commissioner on 13-10-1980 do not appear to be tenable. The petitioner had already been appearing before the learned Additional Commissioner alongwith his Attorney and his Advocate. The petitioner also had full notice about the next date of hearing in the case i.e. 13-10-1980. The reason given by him that since he was suffering from heart trouble, he could not appear before the learned Additional Commissioner, is, therefore, not tenable, because if he could not appear before the learned Additional Commissioner, his counsel or the Attorney could have appeared. Furthermore, the petitioner waited for more than two months to file the application for restoration of the case. It is, therefore, clear that the petitioner did not act with due diligence and the order of dismissal of the case appears to be justified. Apart from that the learned Additional Commissioner had only exercised discretion vesting in him by rejecting the application for restoration filed by the petitioner and no constitutional petition can be maintainable against the exercise of discretion by a subordinate Tribunal. Reference may be made in this connection to the case of Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 S C 139 wherein it was held that revisional jurisdiction under section 115, C.P.C. was not available for interfering with discretion exercised by the subordinate Court, unless the discretion was found to have been fancifully or arbitrarily exercised. Needless to say, that the same principle is applicable in the case of the exercise of constitutional jurisdiction as well.

For the aforesaid reasons I find no force in this petition and the same stands dismissed. There will, however, be no order as to costs.

H.B.T,/A-39/K Petition dismissed.

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