ABDUL QADEER CHAUDHARY, J.--The respondent No. 1, on 8-3-1972 filed a complaint under section 447, P.P.C. Before the Deputy Commissioner, Turbat, that he was ancestral `Sarishta' of Korjo Mahnaz and the petitioners who were share-holders in the said Korjo Mahnaz were not providing labourers for its maintaining and interfering in his rights as Sarishta. This complaint was referred to the Assistant Commissioner, Turbat, who after getting the report of Naib Tehsildar, dismissed the complaint by order dated 8-4-1972. The respondent No. 1 filed an appeal against the said order and the Commissioner by his order dated 3-7-1972 set aside the said order and directed that the case be decided after reference to the tribunal constituted under Ordinance II of 1968. The tribunal gave their award on 27-6-1.975 recommending the dismissal of the complaint. The Assistant Commissioner by his order dated 8-7-1975 acquitted the petitioners. This order of Assistant Commissioner was set aside by the Member, Board of Revenue, Baluchistan in exercise of his suo motu Revisional jurisdiction on 7-7-1976. The Member, Board of Revenue further directed that the case should be tried afresh.
2. On 2-7-1975 the Member, Board of Revenue wrote the letter to the Deputy Commissioner that the petitioners be bound down to pay their due share for the excavation of Korjo Mahnaz. The Member Board of Revenue (respondent No. 2) again on 9-7-1975 sent a wireless message asking the Deputy Commissioner that the petitioners be bound down not to interfere in the office of Sarishta of Korjo Mahnaz.. The petitioners filed an application before the Member, Board of Revenue on 17-8- 1975, requesting that the orders dated 2-7-1975 and 9-7-1975 passed by the Member, Board of Revenue may b,- recalled, as they had been obtained by misrepresenting the facts. According to the petitioners no action was taken on the said application. The order dated 7-7-1976 passed by the Member, Board of Revenue shows that he had taken into consideration the application moved by the petitioners. This order of Member, Board of Revenue dated 7-7-1976 was challenged in this Court in a Constitutional Petition (C. P. No. 114/1976), which petition was dismissed by this Court on 3-1-1978.
3. The respondent No. .1 sought the implementation of order dated 2-7-1975. The Deputy Commissioner, Turbat made an order on 23-8-1977 that the petitioners be bound down that they will not interfere in Sarishtagi of Korjo and they should furnish fresh security. The Deputy Commissioner also passed 4 other orders on the same day. The petitioners challenged these 5 orders passed by the Deputy Commissioner, Turbat by way of a petition in this Court which was dismissed by the High Court on 25-7-1978.
4. On 30-9-1978 the respondent No. 1 moved an application under section 25 of Ordinance I of 1968 before the respondent No. 2.(Annexure-H) with a prayer that the Deputy Commissioner may be directed to implement his order dated 23-8-1977. The petitioners filed a reply to this application on 26-11-1978. The learned Member, Board of Revenue after hearing the parties and their counsel; disposed of the revision petition vide his order dated 25-10-1979 (Annexure-K) the operative part of this order reads as under:- "I have heard the counsel for the parties, have gone through the records of the case and the observations made by the Hon'ble High Court of Baluchistan in various Constitutional Petitions filed by the parties, which were all dismissed by the High Court. I am convinced that the order of the Deputy Commissioner, Turbat, dated 23-8-1977, was validly passed and should be implemented.
In view of the above, I accept this revision petition and direct that the Deputy Commissioner, Turbat should implement the order dated 23-8-1977, of his predecessor and bound down the respondents not to interfere in the Sarishta of the petitioner, if any."
5. The petitioners have challenged in this petition, the orders dated 2-7-1975 and 25-10-1979 made by the second respondent No. 2.
6. The petition has been contested by the respondent No. 2.
7. We have heard the learned counsel for the parties.
8. The learned counsel for the respondent has submitted that the orders dated 2-7-1975 and 9-7- 1975 passed by the Member, Board of Revenue have not been challenged by the petitioners in the previous petition. The petitioners have referred to these orders in their Petition No. 114 of 1976, but they did not challenge them. The petitioners are not estopped from challenging them. The petition is also barred by laches in so far as these orders are concerned. The learned counsel for the petitioners has submitted that these orders were never implemented and they were not passed indepen--dently, therefore, the question of ]aches does not arise. The petitioners were not sleeping over their rights. They are contesting the matter in different Courts. The learned counsel has referred to law of Extraordinary Legal Remedies (By Ferrest G. Ferris), page 214:- "Although the granting or refusing of the writ is largely a matter of discretion, a review of the proceedings may generally be had by writ of error or appeal when the writ is quashed or denied.
Whether an appeal lies in certiorari may depend upon the nature of the proceed--ings and the object for which that remedy is invoked. Thus where the object of certiorari is merely to inquire into and direct the regularity of the proceeding before the inferior Court, the reviewing Court exercises a quasi-appellate power in examining the proceeding, and its judgment will be final, and no appeal will lie. But where the writ is sued out to test the power and jurisdiction of the inferior Court to act at all, the reviewing Court acts in its ordinary common-- law capacity. The proceedings is not limited or special, in the sense in which these terms are generally used, nor appellate, but according to the course of the common-law, and an appeal will lie. So also an order dismissing the proceeding is appealable although it is silent as to the reason, where the opinion indicates it was dismissed as a matter of law, and not in the exercise of discretion. An order dismissing the petition is not necessary for the determination of proceedings under common-law certiorari. An order quashing the writ is final, terminates the proceedings, and is such a final judgment as may be appealed."
The discussion made by the learned author does riot support the contention of the petitioner. In support of his contention he has referred to Mohsan Khan and another v. Chief Settlement Commissioner, West Pakistan Lahore and others 1969 SCMR 306in which it is held that mere delay is not by itself a sufficient ground for non-suiting a party in a proceeding of this nature but where the delay is accompanied by such circumstance as indicate a clear negligence or 'conscious acquiescence in the adverse order made against him, then that would be a very good ground for denying this extraordinary remedy. In fact this authority goes against the petitioners; because negligence on the part of the petitioner is sufficient to disentitle him to a relief under Article 199 of the Constitution. The learned counsel for respondent No. '1 has referred to Hidayat Ali v. Sh.
Muhammad Rafiq, Chief Settlement and Rehabilitation Commissioner, Lahore (1968SCMR103and Ch. Jalaluddin and another v. Settlement Commissioner, Lahore (1968SCMR995), Messrs Sitaldas & Co. v. Sales Tax Officer, Mirpur Khas and another (1972 SCMR 89), Saeedur Rehman and others v.
Govern--ment of Punjab, Lahore and others (1972 SCMR 201), and Sh. Muhammad Ehsan v.
Settlement Commissioner, Lahore and others (1970 SCMR 295), to show that the delay on the part of the petitioner is a good ground for the dismissal of this petition. A delay tantamounts to waiver and acquiescence on the part of the petitioner. Mr. Shahinshah Hussain has quoted a passage from Judicial Review of Adminis--trative Action by S.-A. De Smith, F. B. A. To further elaborate his contention, page 373 it is stated:- "The right to certiorari or prohibition may be lost by acquiescence or implied waiver. Acquiescence means participation in proceedings without taking objection to the jurisdiction of the tribunal once the facts giving ground for raising the objection are fully known."
The petitioners had referred to these orders in previous petition, but they did not challenge these orders at that time. It does not now lie in the mouth of the petitioners to take a different stand and say that as the orders had not been implemented, therefore, the petitioners are at liberty to challenge them at any time. There must be attached finality to the decision of the Courts; and if a person does not care to challenge an order at the first instance knowing fully well that such order is in the field and is adverse to his interest; then he cannot be permitted to challenge it at a subsequent stage.
9. It is against the spirit of law to file successive petition on the same cause of action. In Muhammad Hanif and others v. Chief Settlement Commissioner, Lahore and others (1972 SCMR 369the principle of res judicata to proceed in writ jurisdiction was applied. The other authorities on this point are Karam Bakhsh v. Settlement Commissioner and another (1968 SCMR 1204), Mirza Muhammad Yakoob v. Chief Settlement Commissioner, Lahore and another (PLD 1965 SC 254). In the last case it is held that a petitioner is not entitled to take different pleas at different times su as to file more than one writ-petition on the same facts. For a further plea the proper course would be t o file a petition for review if' such a petition be maintainable. The general principle of res judicata is[ applicable to writ-petitions also. The same view is taken in Muhammad Chiraghuddin Bhatti v.
Province of W. Pakistan through Collector, Bahawalpur (1971 SCMR 447The learned counsel has stated that the present petition is not barred by the principle of res judicata as the previous petitions were dismissed due to the reasons that alternate jurisdiction was available to the petitioners. It is not correct to say that those petitions have been dismissed only on technical ground. In Jhangir and 2 others v. Member, Board of Revenue Baluchistan and another (Constitutional Petition No. 114 of 1976) it has been observed that the legality or otherwise of the orders passed by Member, Board of Revenue was not questioned before the Court. Various contentions had been advanced by the petitioners' counsel in that petition and those contentions had been discussed and disposed of.
10. The learned counsel for the petitioners submitted that the orders dated 2-7-1975 and 9-7-1975 passed by Member, Board of Revenue and the order of Deputy Commissioner passed on 8-7-1975 are without jurisdiction, as they were acting under Ordinance 11 of 196$; and such order could not be passed under Ordinance 11 of 1968. Additionally these orders were passed on oral representation, without any notice and behind the back of the petitioners. The orders are, therefore, liable to be struck down under Article 4 of the Constitution. The learned counsel has referred to Yousuf Ali v. Muhammad Aslam Zia and others (PLD1958SC104), Muhammad Swaleh and another v. Messrs United Grain & Fooder Agencies (PLD1964SC97), Zahoor Ahmed v. Mahmood Ali and another (PLD 1977 Lah. 1377In Yousaf Ali's case it has been held that the order which it declares to be final is within the powers of the authority making it. The learned counsel ,further submitted that the order (Annexure-F) passed by the Deputy Commissioner on 23-8-1977 is without jurisdiction and no proceedings were pending before the Deputy Commissioner. This order was challenged by the petitioner in Wajdad v. Mir Muhammad (C. P. 112 of 1977) It was observed by this Court that this order of the Deputy Commissioner is not an independent order. By this order the Deputy Commissioner had issued direction that the order of Member, Board of Revenue dated 26-9-1975 should be implemented. The Deputy Commissioner was merely trying to enforce the order passed by a forum superior to him. The order of Member, Board of Revenue was in field, when the Deputy Commissioner tried to. Enforce it. Thus it was not the claim that it was the order beyond his jurisdiction. In fact the learned counsel has raised the same contentions in this petition which have been raised by the petitioners in the previous` petition. In such circumstances the principle of res judicata applies to the facts of the present case and the petition is not maintainable.
11. The same documents have been produced in the previous petition. No new document has been produced in this petition. The petitioner want to get the same relief in this petition, which he failed to get in the previous petition. The same points were involved in the previous petition.
12. It is also worthwhile to note that in the Petition No. 112 of 1977 a series of orders had been challenged except the two orders passed by the Member, Board of Revenue.
13. The last contention raised by the learned counsel for the petitioners is that the Member, Board of Revenue had exceeded his jurisdiction. The appeal against the order of Deputy Commissioner was pending before the Commissioner, Mekran; and the previous petition of the petitioners was dismissed on one of the grounds that his appeal was pending before the Commissioner and he could raise such objections before him as an alternate remedy was available for the petitioners. In fact the Member, Board of Revenue has not passed a new order. He has confirmed the order of Deputy Commissioner dated 23-8-1977. This order of Deputy Commissioner was challenged before the High Court and the observation of this Court about this order has been mentioned earlier, therefore, no useful purpose would be achieved by repeating the same contention in successive petitions. The grievance of the petitioners is that as the Member, Board of Revenue passed final order, the Commissioner could not sit over the order of Member, Board of Revenue. The learned counsel for the respondent has stated that the Member, Board of Revenue could exercise revisional jurisdiction at any stage of the proceedings whether an appeal has been preferred or not. He has drawn our attention to the observation of this Court. No objection could be taken in the manner of the interference by the Member, Board of Revenue. In the present case also after the dismissal of the petition filed by the petitioners, the respondent No. 1 approached the Deputy Commissioner for implementation of the order. According to the learned counsel for the respondent No. 1 when the Deputy Commissioner to implement the order. He approached the Member, Board of Revenue for seeking relief and there is no bar on the power of Member, Board of Revenue to take cognizance of the matter and pass such an order. In that case the Member, Board of Revenue had exercised his suo motu jurisdiction. The grievance of the petitioner is that their appeal was pending before the Commissioner, therefor the Member, Board of Revenue should not have exercised his jurisdiction,.
This contention cannot be accepted for various reasons. The petitioners had filed appeal before the Commissioner, who on 25-8-1977 stayed the operation of the Deputy Commissioner's order, but the petitioners did not persue their remedy before the Commissioner after obtaining the stay order.
The petitioners did not make any attempt for the disposal of their appeal. It is, therefore, clear that they were negligent. The Member, Board of Revenue had passed the impugned order on 25-10- 1979. The petitioners did not approach the Commissioner for the earlier decision of their appeal.
The petitioners had appeared before the Member, Board of Revenue. They had filed their reply to the petition filed by the respondent No. 1. They did not challenge the jurisdiction of Member, Board of Revenue and in fact submitted to his jurisdiction and requested that the order of Deputy Commissioner be set aside. The petitioners did not request the Member, Board of Revenue that their appeal, against the order of Deputy Commissioner which was sought to be implemented was pending before the Commissioner. It was also not urged that till the disposal of his appeal no action on the application oft respondent No. 1 be taken. The contentions which were raised before the Commissioner and in this Court were raised before the Member, Board of Revenue. The Member, Board of Revenue has not substituted his own order in place of the order passed by Deputy Commissioner. The Member, Board of Revenue had the jurisdiction to pass an order and that jurisdiction has not been challenged. In the matter of Muhammad Hussain Monir v.`Sikandar and others (1), the following observations are relevant :- "It was held by the Judicial Committee that in a case where a justice convicts without evidence that would not justify interference in certiorari on the ground that to convict without evidence is to do something which the justice ought not to do. Their Lordships of the Privy Council observed that the justice was "yet doing it as a Judge" and "if jurisdiction to entertain the charge has not been impeached, his subsequent error, however, grave is a wrong exercise of jurisdiction which he has and not usurpation of jurisdiction which he has not". In the recent case of Baldwin and Francis Ltd. v. Patent Appeal Tribunal PL171974 SC139, Lord Tucker expressed his agreement with the above view.
Therefore, learned counsel for the appellants is on a firm ground to contend that the learned Judge has misdirected himself in setting aside the revisional order of the learned Member, Board of Revenue, who was validly seizing of the case, merely because in the opinion of the learned Judge, it was "against equity". In effect, the learned Single Judge constituted himself an appellate Court with power to examine the propriety of the order of the Member, Board of Revenue, for which there is no warrant either in principle or on precedent. It seems that the learned Judge thought it fit to interfere for the sole reason that under the revised scheme of consolidation, the number of plots given to Hidayat deceased had increased which appeared to the learned Judge to be inequitable. It must, however, be remembered that what is administered in Courts is justice in accordance with law and considerations of what may appear as fairplay and equity, however, important they may be, must yield to the provisions of law, or its well recognized principles."
It would be pertinent to refer to the order of Commissioner dated 25-8-1977 whereby the order of Deputy Commissioner, Turbat dated 23-8-1977 was suspended. The order reads as under:- "This is an appeal filed by Wajdad appellant against the order dated 23-8-1977 of the Deputy Commissioner, Turbat District wherein he has directed the Naib Tehsildar, Buleda to bound down Jhangir, Wajdad and Dostain not to interfere in the "Sharistagi" of Korjo Mahnaz. The appellant has stated that the matter is pending before the High Court and that the High Court has passed interim order which is still continuing. The copies of the order of interim stay and its further continuance have also been attached with the appeal.
Keeping in, view the stay of the High Court I direct that no action should be taken to disturb the status quo. The order of the Deputy Commis--sioner, Turbat dated 23-8-1977 is held in abeyance.
Notice be issued to the other party to appear before this Court on 3rd September, 1977, and state as to why the impugned order of the Deputy Commissioner, Turbat should not be set aside in view of the fact that the matter is already pending before the High Court.
The recital of this order shows that the Commissioner has passed the said order on the basis of an order passed by the High Court where the High Court issued an interim stay. In view of the stay of the High Court the Commis--sioner has stated that no action to be taken to disturb the status quo.
After the disposal of the petition filed by the petitioners, this order does not remain in field.
For the reasons discussed above, we see no force in the petition. The same is hereby dismissed. s. A. H.