' MUHAMMAD ILYAS, J.-The facts giving rise to this Intra-Court Appeal are, that, on 7th June, 1958, the Assistant Rehabilitation Commissioner, Minchinabad, District Bahawalnagar, made an order regarding confirmation of certain land under the Displaced Persons (Land Settlement) Act, 1958. His order was challenged by the appellants, Fazal-ur-Rehman Mahmood and another, by means of a revision petition. That petition was accepted by the Rehabilitation Commissioner, Bahawalpur, vide his order, dated the 30th May, 1959. Resultantly, the order of the Assistant Rehabilitation Commissioner was set aside and the case was remanded for fresh decision in the light of the directions given by the Rehabilitation Commissioner. After remand, the Assistant Commissioner, Minchinabad, exercising powers of the Additional Settlement Commissioner, decided the case by means of his order, dated the 12th February, 1976. The appellants were not satisfied with his order and filed a writ petition before this Court assailing that order. The writ petition was dismissed by Mr. Justice Shafiur Rahman (then a Judge of this Court), on 23rd September, 1978, for appellants' failure to prosecute the matter. The appellants made a petition (C. M. No, 9283 of 1978) on 21st October, 1978 seeking restoration of the writ petition but it was dismissed on 22nd May, 1979. They have, therefore, filed this appeal.
2. Learned counsel for respondents Nos. 2 and 3 namely, Noor Muhammad and Bashir Ahmad, hereinafter referred to as the respondents, raised two preliminary objections. His first objection was that this appeal was not competent. His argument was that in the present case the original order was of the Assistant Rehabilitation Commissioner and since that was open to revision this appeal was barred by the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972, hereinafter referred to as the said Ordinance. In reply, it was submitted by learned counsel for the appellants that for the purpose of the present appeal the original order was the order of the Additional Settlement Commissioner and since his order could not be challenged by means of appeal, review or revision this appeal was not hit by the proviso to subsection (2) of section 3 of the said Ordinance. Elaborating his contention, it was submitted by learned counsel for the respondents that by the time of the making of the said order by the Additional Settlement Commissioner, the Displaced Persons (Land Settlement) Act had been repealed and thus his order could not be challenged on the settlement side in any manner. In this connection, he placed reliance on Yousaf Ali Khan v. Muhammad Javed lqbal (1).
3. The other preliminary objection advanced by learned counsel for the respondents was with regard to limitation. It was urged by him that this appeal was, in fact, directed against order, dated the 23rd September, 1978 and since it was filed on 11th June, 1979 after 20 days of the making of the said order, it was barred by time. He relied on Article 151 of the First Schedule to the Limitation Act, 1908 to support his argument. According to him, the petition for restoration of the writ petition was not
(1) PLD 1975 Lah. 1339 ' competent and, therefore, the time consumed in the disposal of that petition could not be made use of by the appellants. His plea was that by his order, dated the 23rd September, 1978 the learned Judge in Chambers had dismissed the writ petition on merits and not in default. On the contrary, it was submitted by learned counsel for the appellants that by his order, dated the 23rd September, 1978, the learned Single Judge had dismissed the Constitutional petition in default and not on merits and, therefore, the appellants were justified in seeking restoration of the writ petition, under Order IX, rule 9 of the Code of Civil Procedure. According to him, the petition for restoration of the writ petition could be made within 30 days and it was actually filed within that period, that is, on 21st October, 1978. For this proposition, reliance, was placed by him on Article 163 of the First Schedule to the Limitation Act. It was also maintained by learned counsel for the appellants that the appeal against order of dismissal of the petition for restoration of the Constitutional petition was within time.
4. As regards the preliminary objection relating to competency of the appeal, we are unable to agree with learned counsel for the respondents that the order of the Assistant Rehabilitation Commissioner was the original order within the meaning of the proviso to subsection (2) of section 3 of the said Ordinance. His order was set aside by the Rehabilitation Commissioner on 30th May, 1959 and the matter was directed to be decided afresh. It was subsequently so decided by the Additional Settlement Commissioner, vide his order, dated the 12th February, 1976. Thus, the Additional Settlement Commissioner did not make the above order in appeal or revision or by exercising his jurisdiction of review and, therefore, it deserved to be treated as original order for the purpose of proviso to subsection (2) of section 3 of the said Ordinance. In taking this view we are fortified by the following observations of the Supreme Court in the case of Yousaf Ali Khan relied upon by learned counsel for the appellant :- "The expression 'original order' in the context of this proviso has been used to distinguish it from the appellate or revisional order, or an order passed in the exercise of review jurisdiction."
' It was not disputed that with the repeal of the Displaced Persons (Land Settlement) Act by the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, the order of the Additional Settlement Commissioner could not be challenged by means of appeal, revision or review.
Therefore, the appeal in hand does not attract the proviso referred to above. It is directed against an order passed by a learned Single Judge on a writ petition and is, therefore, competent.
5. This brings us to the other preliminary objection of learned counsel for the respondents. It relates to the question of limitation. Before deciding that question, the precise character of the order of the learned Single Judge by which he had dismissed the writ petition on 23rd September, 1978 will have to be determined. In other words, it is to be examined whether the said order was an order dismissing the writ petition in default or an order dismissing the petition on merits.
6. On 23rd September, 1978 when the writ petition came up before the learned Single Judge Mian Allah NaWaz, advocate, appeared on behalf of the petitioners (appellants) and stated that the petitions had taken away the brief without leaving instructions with him. Thereupon, the learned Single Judge dismissed the Constitutional petition "for failure of the petitioners to prosecute the matter", Subsequently, while dismissing the appellants' petition for restoration of the writ petition it was observed by the learned Single Judge that the writ petition was not dismissed on account of non-appearance of the appellants or improper representation because they were properly represented by duly authorised counsel, namely, Mian Allah Nawaz. It was further explained by him that the Constitutional petition had been dismissed because the appellants had been negligent in the extreme in pursuing the petition. This clarification is in consonance with the wording of his order, dated the 23rd September, 1978, by which he had dismissed the petition not in default but for the appellants' failure to prosecute the matter. The learned Single Judge being the maker of the above order was in the best position to disclose what was in his mind when the order was passed by him. Here, we would also like to quote a Persian saying which is to the following effect :- ' Its English English rendering would be that a writing can be properly spelt out by its author. We, therefore, hold that the learned Single Judge had dismissed the writ petition not in default, but on merits. He had non-suited the appellants because, according to the learned Single Judge, they had failed to pursue the writ petition with care and vigilance.
7. Now what is to be seen is whether the writ petition could be dismissed, on merits, due to the appellants' negligence without adjudicating upon the points raised by them in the petition. There can hardly be any dispute on the point that the Constitutional jurisdiction vesting in this Court is a discretionary jurisdiction. To put it differently, it is discretionary with this Court to entertain a Constitutional petition by admitting it to a regular hearing or, after its admission for the purpose, continue with that petition. If a party is not prompt and diligent in invoking the Constitutional jurisdiction or in pursuing the petition by which the jurisdiction is invoked, the Court would be justified in exercising its discretion against him. It is too well-known that a Constitutional petition can be thrown away on the ground of laches. Briefly stated, the principle of laches is that the High Court will refuse to exercise its Constitutional jurisdiction in favour of a party who does not come to the Court with diligence and expedition. It is for the considerations similar to those on which the principle of laches is based that a party can be non-suited if he displays lack of interest or vigilance in the matter of pursuing his Constitutional petition after it is entertained. To hold otherwise, would amount to permitting the litigants to file writ petitions and then play hide and seek with the Court as was done by the appellants in the present case. Instances are not lacking in which the parties bringing Constitutional petitions also succeed in getting interim reliefs and then decide not to co-operate with the Court in the matter of final disposal of the petitions. Learned counsel for the appellants did not cite any authority for the proposition that after a writ petition is entertained by the Court it cannot be dismissed for indifference and negligence of the petitioner in the matter of pursuing the petition and that the Court is bound to decide it on merits by determining the issues raised therein. We are, therefore, of the view that the learned Single Judge could dismiss the writ petition, on merits, if the appellants were negligent in pursuing the petition without deciding, one way or the other, the points canvassed by them to assail the order of the Additional Settlement Commissioner against which the petition was directed.
8. It has been noted that by his order, dated the 23rd September, 1978, the learned Single Judge had dismissed the writ petition on merits and not in default. The petition made by the appellants for restoration of the writ petition was, therefore, misconceived. If they were not satisfied with the order of dismissal of the Constitutional petition they should have preferred Intra-Court Appeal within 20 days of the passing of the said order but sine the instant appeal was filed after the said period had run out, it was time-barred. In this view of the matter, the appeal can be dismissed on the ground of limitation alone.
9. On merits too, there is no force in this appeal. The file speaks volumes of the gross negligence on the part of the appellants in the matter of prosecuting the writ petition. The writ petition was admitted to a regular hearing on 15th July, 1976. It came up on 15th October, 1976, at Lahore, the Principal seat of this Court, for arguments when the appellants' counsel, Ch. Abdul Saleem, Advocate, requested for adjournment which was allowed. Thereafter, the case was sent to Bahawalpur Bench as it related to the area served by this Bench. Here, the petition came up on 26th October, 1976 for arguments when neither the appellants nor their counsel had entered appearance. Their counsel, Ch. Abdul Saleem, had sent a telegram from Lahore requesting for adjournment. It was noted by the Court that since actual date was fixed at his earlier request he should have made alternative arrangement. However, in the interest of justice the case was adjourned. It was on 22nd December, 1976 that the case was taken up again for arguments. On that date, a local lawyer, namely Mian Allah Nawaz, Advocate, appeared on behalf of the appellants, and requested for adjournment stating that he had not been able to prepare his brief.
The adjournment was seriously opposed by the respondents. It was, however, allowed with a warning that no further opportunity will be given to the appellants. The case was then listed for 16th May, 1977 when appellant No, 2 appeared in person and requested for adjournment on the ground that his counsel was not available. The case had, therefore, to be adjourned again. The next date on which the arguments were desired to be heard was 19th May, 1977. On that occasion too learned counsel for the appellants, Mian Allah Nawaz, requested for adjournment saying that he had not been able to prepare the case. His request was acceded to and the case was adjourned. On 22nd June, 1977, the case again came up for arguments when the appellants made an application for permission to produce certain documents and to file replication to the written statement put in by the respondents. Their request was acceded to on payment of costs and the case was adjourned for arguments with a warning that no further adjournment would be given at the request of learned counsel for the appellants. Thereafter, the writ petition came up on 23rd September, 1978 for arguments. As indicated above, on that date the appellants' counsel, Mian Allah Nawaz, stated that the appellants had taken away the brief from him without leaving instructions with him. The writ petition was, therefore, dismissed for appellants' failure to prosecute the matter. It would, therefor , appear that for three long years the appellants had been seeking adjourn. Then on one pretext or the other. During all that time, they had been availing of the interim relief allowed to them in the form of status quo order. The appellants had been guilty of culpable negligence in the matter of prosecuting their Constitutional petition and, therefore, the learned Single Judge was perfectly justified in exercising his discretionary jurisdiction against the appellants by dismissing their petition.
10. In conclusion, we hold that the order passed by the learned Single Judge dismissing the Constitutional petition of the appellants and their p petition for restoration of the Constitutional petition are unexceptionable. Their appeal is, therefore, dismissed. However, in view of the divide success of the parties on the points agitated before us we make no order as to costs.