' ALI SAIN DINO METLO, J.---The petition filed on 9-4-1995 for declaration to the effect that respondents' demand of channel rent for petitioners' Lahore-Karachi speech circuit in excess of their contractual obligation was unlawful and dismissed on 26-8-1998 for non-prosecution due to non-appearance of the petitioners and their advocate, is sought to be restored, by an application (C.M.A.289 of 2004) moved on 21-1-2004 i,e, after about 5-1/2 years of its dismissal, on the ground that the petitioner had no knowledge of the dismissal. By another application (C.M.A. 288 of 2004), the delay is sought to be condoned on the same ground. The applications are supported by affidavits of petitioners' secretary, their advocate and his clerk.
2. The respondents, in their objections and counter-affidavits, have controverted the petitioners' contention and have contended that they were grossly negligent in pursuing the petition.
According to them, the application was groundless, hopelessly time-barred and no case was made out for condonation of such an inordinate delay.
3. Learned counsel for the petitioners argued that despite publication of his name in the cause list and issuance of notices by the Court on his given address, petitioners' advocate, having permanent office at Lahore, could not know about the date of hearing and neither the list nor the notice reached him. According to him, if the application for the restoration of petition is treated as one under Order IX, rule 9, C.P.C., 30 days period of limitation will start from the date of knowledge and not from the date of order and that if it is treated as one under section 151, C.P.C., the period of limitation will be three years from the date of order. He has relied upon the cases of Allah Dino v.
Fakeer Muhammad and others PLD 1969 SC 582 and Tolomal and others v. Deputy Commissioner and Additional Settlement Commissioner Khairpur and others PLD 1972 Karachi 116. He further argued that the petitioners were entitled to a fair and proper opportunity of hearing and in the event of showing sufficient cause for non-appearance they were entitled to get the petition restored for decision on merits and in support he cited the case of Mst. Begum and others v. Mst.
Begum Kaniz Fatima Hayat and others 1989 SCMR 883; Muhammad and others v. Chief Administrator Auqaf and others 1996 SCMR 1508; Shamsuddin v. Muhammad Ashraf PLD 1996 Lahore 210 and Abdul Waheed Khan and others v. Aleemuddin Khan 2001 CLC 333 Karachi:
4. Learned counsel for respondents Nos. 2 to 4 argued that the petitioners, being grossly negligent in pursuing the petition, were not entitled to its restoration after such a long period. In support of his contention, he relied upon the cases of Ghulam Muhammad and others v. Member Board of Revenue and others PLD 2004 Lahore 486, Di. Syed Raza Gardezi and others v. Nazaz Ali and others PLD 2004 Karachi 143, Mst. Hajra Bibi and, others v. Abdul Ghani 2002 SCMR 105 and Development Authority Muzaffarabad v. Iqbal Hussain Nizami 2002 CLC 1653
5. The perusal of record shows that after admission of petition and grant of stay on 11-4-1995, learned counsel for the petitioners never appeared on the dates of hearing which were being fixed after intervals of few months. In the beginning Messrs Ziaul. Haq Makdoom (present counsel for the petitioners) and Munir Malik holding brief for Mr. Umar Ata Bandial advocate for the petitioners were seeking adjournments on his behalf but later on they also stopped attending and despite sending notices to the petitioners' advocate on Lahore address, no body cared to attend and ultimately the petition was dismissed on 26-8-1998 for non-prosecution. In view of the previous practice of the fixation of matter for hearing after intervals of few months, the conduct of the petitioners in not making enquiry for more than 5 years is clearly of gross negligence and in the light of the famous maxim that the laws give help to those who are watchful and not to those who go to sleep (vigilantibus, non dormientibus, jura subsveniunt), they are not entitled to the grant of relief under Article 199 of the Constitution. As regards the contention of the learned counsel for the parties about the applicability of different provisions of the Code of Civil Procedure, 1908, and the Limitation Act, 1908, to the listed applications, there is a direct authority of a Division Bench of this Court in the case of Messrs Hina Housing Project (Ltd.) v. Government of Sindh and others 2001 MLD 59 holding that both the statutes were not applicable. We do not find any reason to deviate from the earlier view of the Division Bench. In the case of Muhammad Baran and others v. Member Settlement and Rehabilitation and others reported in PLD 1991 SC 691 it was observed that Article 199 of the Constitution was not subject to any law except the Constitution and any provision of a sub-constitutional statute attempting to control or limit the power or jurisdiction of a High Court would be ultra vires the Constitution. Therefore, the provision of the Code of Civil Procedure, 1908, and the Limitation Act, 1908, cannot regulate or control the proceedings under Article 199 of the Constitution. Nevertheless, as observed in the case of Shabbir Ahmed and others v. Akhtar Alam and others reported in PLD 1994 SC 598, the Court while exercising its constitutional jurisdiction can press into service the provision of the Code of Civil Procedure, 1908. In absence of any period of limitation prescribed for filing application under Article 199 of the Constitution or interlocutory applications in such proceedings the only principle for keeping off the stale litigation from the Court is that of the latches and an indolent and negligent litigant is not entitled to invoke the extraordinary discretionary jurisdiction of the Court.
6. Since in the present case, the petitioners have been grossly negligent in pursuing the petition and have come for its restoration after more than 5-1/2 years of its dismissal, they are not entitled to invoke the discretionary jurisdiction of the Court and accordingly the applications along with C.M.A. 290 of 2004 are dismissed.