A. R. SHEIKH, J.---This Letters Patent Appeal calls in question the issuance of a writ by this Court on 30-6-67 against the orders of the Commissioner. F. C. R. Dated the 16th of May 1961 and the 29th of August 1962, made in reversal of the Extra-Assistant Commissioner's order dated the 26th of December 1958, in a complaint case filed by the respondent under section 447, P. P. C. Against the appellant. The said orders of the Commissioner, F. C. R. Were previously the subject-matter of Writ Petition No. 38 of 1962 filed by tire respondent in this Court, which writ petition was dismissed in limine by the learned Single Judge on the 30th of April 1963, when the following order was passed: "The order of the Commissioner, F. C. R. Dated 16-5-61 is a perfectly valid order. According to the compromise dated 26-6-53 between the parties which was approved by the Court on 6-7-53 the respondents Ghulam Muhammad and Munshi Faizul Haq (sic) were entitled to redeem the property within 5 years of the settlement. They came to Court on 10-4-58 and so they were very much within time. The *Extra-Assistant Commissioner and Additional District Magistrate was clearly wrong when he passed an order on 26-12-58 saying that the application of the two mortgagors was barred by time, upon which finding he dismissed that application.
Mr. Hanafi concedes that this order of the E. A. C. Was wrong, having regard to the terms of the compromise but he contends that so much, time had passed and the Commissioner, F. C. R. Was not entitled to exercise his revisional jurisdiction as he has done in the present case. Even if this contention is technically correct, about which 1 am not quite sure, it is still clear to me that the order passed by the learned Commissioner on 16-5-61 is a correct order and does justice between the parties. I would not exercise the powers of Article 98 to upset this order. I accordingly dismiss this petition summarily."
Feeling aggrieved by that order, the respondent preferred a belated Letters Patent Appeal (being L.
P. A. No. 4 of 1963), which was dismissed by the Bench as beyond time. The respondent remained unsuccessful in his review petition before the said Bench. A day after the dismissal of the review petition, the present writ petition was brought before this Court. Although a passing reference has been made to the previous Constitution petition, no particulars were given either in the petition or otherwise mentioned on the face of the petition. Even the order of the learned Single Judge dismissing the petition in limine was not placed on the record; instead a copy of the order of the Commissioner, F. C. R. Shown to have been marked as `O' (which document on the record bears no such mark) was filed with the writ petition. No mention of the Letters Patent Appeal was made, nor was the dismissal of the review petition disclosed in the writ petition. Unfortunately the appellant (the respondent in the first writ petition) was not represented through counsel. The order of the learned Judge in Chambers allowing the second writ petition is the subject-matter of this Letters Patent Appeal.
2. A preliminary objection as to limitation has been raised on behalf of the respondent. It is contended that the appeal having not been filed within twenty days, the period prescribed by Article 151 of the Limitation Act, it is barred by time. The argument is that by virtue of rule 4, Chapter I-A, High Court Rules and Orders, Volume V, the memorandum of Letters Patent Appeal need not be accompanied by a copy of the judgment appealed against and, therefore, the time spent in obtaining the copy cannot be excluded under section 12 of the Limitation Act. In support of his contention, learned counsel relies on Aon Muhammad v Rehabilitation Commissioner and another (PLD 1966 Lah. 319) which authority is in no way helpful to him. However, when attention of learned counsel was drawn to a Full Bench decision reported as Punjab Co-operative Bank Ltd., Lahore v.
Official Liquidators, Punjab Cotton Press Co. Ltd. (in Liquidation) and others (AIR 1941 Lah. 257), which judgment is on all fours, learned counsel did not press the argument further.
3. From the facts narrated above, it is manifest that the writ-petitioner has succeeded before the learned Judge in Chambers by suppression of material facts and this Letters Patent Appeal is likely to succeed on this ground alone.
4. We further find that no doubt strictly speaking section 11 of the Code of Civil Procedure is not applicable to proceedings fn Constitutional Jurisdiction, the process is in no manner endless and as it is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction and the individuals should not, be vexed twice over with the same kind of litigation, it has to be held that the general principles of res judicata are applicable to writ petitions also. There may be an exception to the rule in cases when a second writ petition is filed on new facts, but when a petition for issuance of a writ has been made, argued and refused, it is not competent for the writ-petitioner to make a second petition. In this view of ours, we are fortified by the weighty observations of their Lordships of the supreme Court in Mirza Muhammad Yaqub v. The Chief Settlement Commissioner, Lahore and another (PLD 1965 SC 255), which observations may be reproduced with advantage:- " . . . A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For a further plea the proper course would be to file a petition for review if such a petition be maintain--able. The general principle of res judicata is applicable to writ petitions also."
Learned counsel for the respondent concedes that no new facts have been pleaded in the subsequent writ petition. However, he argues that because the writ petition has been dismissed in limine, it was not an order on merits and invoking the principles of Order IX, rule 4 of the Code of Civil Procedure, a second writ petition was not barred. In support of this view he has attempted to rely on some observations in Daryao v. State of U. P. (AIR 1961 SC 1457), which observations are reproduced below:- "If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which are already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court."
It will be seen that even on the extended principle formulated in the passage from Daryao's case, reproduced above, it cannot be urged with success that if a writ petition has been dismissed in limine by a speaking order even then such dismissal cannot B be considered as creating a bar of res judicata. Learned counsel for the respondent while conceding that the order passed dismissing the first writ petition in limine is a speaking order, made a feeble attempt to argue that all the points raised having not been noticed in the said order, it was not an order on merits. We are not persuaded to agree. The crucial points argued have been noticed and repelled and the contention is patently ill-founded. Following with respect the observations of their Lordships of the Supreme Court in Mirza Muhammad Yaqub v.
The Chief Settlement Commissioner, Lahore and another we hold hat the second writ petition was not maintainable, in the circum--stances of the case.
5. For the reasons given above, we allow the appeal with costs and recall the writ issued by this Court on the 30th of June 1967.
K. B. A.