' Mst. Talaat Naseem wife of Amjad Ali, who is respondent No, 1 in this writ petition, filed an ejectment application against Salah-ud-Din respondent No, 2 Razzak and 13 others, who are petitioners before this Court seeking their ejectment from Property No, VII-1-S-21, Kucha Tariq Masjid Wala No, 2, Bilal Ganj, Lahore, on the grounds that the premises sought to be ejected were given on rent to Sala-ud-Din respondent No, 2 who had sublet the same to the petitioners against the consent of the landlady and that the premises are required by her for her personal use and occupation. This ejectment petition was contested by the respondent No, 2 as well as by the petitioners, who denied the relationship of landlord and tenant between the parties and alleged that they are in adverse possession of the premises in question for a period of more than 40/45 years, hence have acquired a right of ownership therein, as such they prayed that the ejectment petition may be dismissed.
2. Learned Rent Controller settled the issue of relationship of landlord and tenant, recorded evidence led by the parties and dismissed the ejectment petition vide order dated 14-3-1988.
3. Aggrieved of this order the respondent No, I filed an appeal before the Appellate Authority, Lahore, which was accepted by the learned Additional District Judge, Lahore, vide order dated 17- 12-1991 and an order of ejectment was passed against the petitioners and the respondent No, 2.
This order was challenged by the petitioners in Writ Petition No, 1456/1992 before this Court which was dismissed in default vide order dated 30-1-1994. The petitioners moved an application CM.
247/94 seeking restoration of the writ petition which was dismissed by this Court vide order dated 17-4-1994. The petitioners filed a Review Petition No, 48 of 1994 which was dismissed vide order dated 15-6-1994. The above orders passed-by this Court have not been challenged before the Honorable Supreme Court of Pakistan and hence have attained finality.
4. On 14-9-1994 this writ petition has been filed by the petitioners to challenge against the order of eviction dated 17-12-1991 passed against them which was challenged in the earlier writ petition, on the same grounds on the basis whereof the previous petition was filed.
5. Preliminary arguments have been heard. Learned counsel for the respondent No, 1 has raised a preliminary objection as to the maintainability of this writ petition on the ground that the previous writ petition for restoration and review application having been dismissed and the said orders having attained finality, this writ petition is not maintainable and is liable to be dismissed as per principles as contained in Code of Civil Procedure as well as the principles of laches, hence it is prayed that the petition may be dismissed. In support of his contentions the learned counsel for the respondent No, 1 has placed reliance on the case of "Nemat Khan and another v. Mst. Ghosan, represented by Abdur Rehman etc." (1987 CLC 1515). In reply to the preliminary objection raised by the learned counsel for the respondent No, 1, counsel for the petitioners has contended that no person should suffer due to the negligence of his counsel and as the previous decision rendered in the earlier writ petition was not on merits, this writ petition is maintainable and further that there being no lapse on the part of the petitioners as they had challenged the order of ejectment passed against them well-in-time and have been pursuing the remedy before this Court up to June 1994, it cannot be said that the writ petition filed in the middle of September 1994 is barred by principles of laches. In support of his contentions learned counsel relies upon the case of Wasi Ahmad Rizvi v.
Government of Pakistan and 3 others' (PLD 1972 Karachi page 589).
7. I have considered the arguments addressed by the learned counsel for the parties, have perused the record and have gone through the case-law cited at the bar. Admittedly a similar writ petition filed earlier was dismissed in default and has been refused to be restored by this Court. Principles of the Code of Civil Procedure are applicable to the Constitutional petitions as well as held in case of 'Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1).
Consequently, once a cause is dismissed in default and is refused to be restored then litigant cannot be allowed to start his second round on the basis of the same cause of action as per principles contained under the provisions of Order IX, rule 9, Order II, rule 2, C.P.C. As well as the principle that no one can be vexed twice for the same cause of action. In case of `Aziz Ahmad and others v. Mst. Hajran Bibi and another' (1987 SCMR 527) where the question arose as to whether in absence of applicability of provisions of Order IX, rule 9, C.P.C. Whether a fresh litigation can be allowed to proceed or not, their Lordships of the Supreme Court have held that there has to be an end to litigation and therefore his subsequent proceedings on the same cause of action are not maintainable. Following observations were made by their Lordships in this behalf which are reproduced as under:- "It is then contended on behalf of the appellants that before the suit at Bahawalpur was dismissed the suit at Faisalabad had already been instituted that being so, rule 9, Order IX was not in terms applicable as this rule only prevented a plaintiff from instituting a fresh suit but had no effect on a suit which had no effect on a suit which had already been filed. The contention in so far as the construction of rule 9 is concerned is correct but that does not mean that the second suit is not barred and can be tried on merit. There is well-established principle that no one is to be twice vexed for the same cause of action. Reference in this context is invited to a Division Bench judgment of the Lahore High Court in Amir Din Shahab Din v. Shiv Dev Singh AIR 1947 Lah. 102 where the maintainability of the second suit brought before the dismissal in default of the first suit was considered and it was held that the second suit was hit by the abovementioned principle and it was also liable to be dismissed on the ground that its institution and trial amounted to the abuse of the process of the Court.
' It was then argued by the learned counsel that the causes of action in the two suits were different as the suit filed at Bahawalpur was in respect of the property situate in Bahawalpur alone whereas the suit instituted at Faisalabad covered properties both at Bahwalpur and Faisalabad; consequently, the dismissal of the first suit could not have any effect on the second suit. This contention is again without any merit. The causes of action in the two suits were precisely the same, that is, the wrongful allocation of a share in the property left by Sultan Muhammad to respondent No,
2. The mere fact that in the first suit the appellants did not seek relief in respect of the property at Faisalabad would not make the cause of action in the second suit a different one. In fact by not seeking any relief in respect of the property situate in Faisalabad in the suit filed at Bahawalpur the appellants would be taken to have given up their claim to the said property, and the second suit would be hit by the bar contained in rule 2(2) of Order 11 of the Code of Civil Procedure."
In case of `Nemat Khan and another v. Mst. Ghosan, represented by Abdur Rehman etc." 1987 CLC 1515 relied upon by the learned counsel for the respondent No, 1 His Lordship Mr. Justice Muhammad Ilyas, J. Presently Honourable Acting Chief Justice of this Court at pages 521 and 522 has held as under:- "2. With reference to absence of the petitioners on the date on which their earlier writ petition was dismissed in default, it was urged by learned counsel for legal representatives of respondent No, 2, Mst. Ghosen, that the writ petition in hand was not maintainable: His plea was that since the earlier writ petition was not got restored by the petitioners, they could not file the instant writ petition. For this proposition, reliance was placed by him on Order IX, rule 9 of the Code of Civil Procedure. As regards the failure of the petitioners to deposit process fee in their first writ petition, argument of learned counsel for the legal representatives of respondent No, 2 was that they could file a fresh writ petition if the same did not suffer from the defect of laches but since the present petition did suffer from that defect it was not entertainable. In this connection, he relied upon Order IX, rule 4, of the Code of Civil Procedure. In reply, it was submitted by learned counsel for the petitioners that since the second petition for restoration of their former writ petition was withdrawn by petitioners, there was nothing wrong with the maintainability of the instant writ petition.
3. It was not disputed by learned counsel for the petitioners that principles of the Code of Civil Procedure are applicable to writ petitions also. On the dismissal of their writ petition in default, the petitioners could make a petition for restoration thereof, under Order IX, rule 9 of the Code of Civil Procedure, but could not file a fresh writ petition. They did make two petitions for restoration of their earlier writ petition of which the first one was dismissed in default and other one was withdrawn by them after filing of the writ petition in hand. By so doing, they ran a great risk against the provisions of Order IX, rule 9 of the Code of Civil Procedure which did not permit them to file a fresh writ petition. I, therefore, agree with learned counsel for legal representatives of respondent No, 2 that this writ petition is barred by Order IX, rule 9 of the Code of Civil Procedure.
4. Having dealt with default of the petitioners in the matter of entering appearance before this Court to prosecute their first writ petition, I now advert to their failure to deposit process fee in that writ petition.
' If a suit is dismissed for non-deposit of process fee, a fresh suit can be filed under Order IX, rule 4 of the Code of Civil Procedure, within the period of limitation. No period of limitation has been prescribed for Constitutional petitions. However, if any such petition suffers from the defect of laches it can be dismissed on that ground. While examining the question of limitation or laches, period spent by a party at fault in connection with an earlier suit or writ petition cannot be deducted. It was held in Chintamani v. Kisan and another (AIR 1929 Nagpur 219) which was followed by me in the Aziz Din and another v. Qadir Bakhsh and 2 others (PLD 1987 Lah. 119). This second writ petition was filed by the petitioners after about 5 years of the impugned order. Obviously, therefore, it suffers from the defect of laches. As stated above, time spent by the petitioners in connection with their earlier writ petition or the application for restoration thereof cannot be deducted from the said period of about 5 years. I, therefore, agree with learned counsel for legal representatives of respondent No, 2 that the petitioners have been guilty of laches in the matter of filing the instant writ petition and, therefore, it deserves to be dismissed on that ground.
5. Even if the principles of Code of Civil Procedure are not applied to this Constitutional petition, it would not be entertain able for other reasons: Constitutional jurisdiction is discretionary in a nature and the petitioners were extremely negligent in invoking that jurisdiction. This is evident from the fact that their earlier writ petition was dismissed in default and petition for restoration thereof was also dismissed for want of prosecution. They then made another petition for restoration of the first writ petition but the same was withdrawn after filing the writ petition in hand. Thus, they were not only grossly negligent but approaching this Court with the instant writ petition they did not come with clean hands. They, in fact, attempted to circumvent the law. In view of this conduct on their part, therefore, they cannot be permitted to invoke the Constitutional jurisdiction of this Court for the second time. In Fazal-ur-Rehaman Mahmood and another v. Additional Settlement Commissioner (Land) and 2 others (1984 CLC 1100 Lahore) it was held by a Division Bench of this Court (of which I was also a member) that if a party is not prompt and diligent in pursuing the Constitutional remedy, the Court can refuse to exercise Constitutional jurisdiction in his case.
Second writ petition of the petitioners, which is the instant petition, should, therefore, fail due to culpable negligence on their part in the matter of prosecuting the first writ petition and the petitions for restoration thereof, and for coming to this Court with unclean hands."
' The statement of law as enunciated by my Lord the Hon'ble Acting Chief Justice in the above- referred case is quite in accord with the view taken by the Honorable Supreme Court in case of Aziz Ahmad and another v. Mst. Hajran Bibi and another' referred to above, according to which subsequent writ petition in the similar circumstances whereunder the present petition has been filed has been held to be incompetent. The case of Wasi Ahmad Rizvi v. Government of Pakistan and 3 others' relied upon by the learned counsel for the petitioners is distinguishable on facts, inasmuch as, in that case it has been held that the subsequent petition on fresh cause of action is not barred. There is no cavil with the proposition as laid down in the aforementioned judgment but in the case in hand subsequent writ petition has been filed on the same cause of action whereon the previous writ petition had been filed and was dismissed in default. Therefore, respectfully following the law declared in case of `Nemat Khan and another v. Mst. Ghosan, represented by Abdur Rehman etc.' and Aziz Ahmad and others v. Mst. Hajran Bibi and another', I hold that this Constitutional petition is liable to be dismissed as being barred under the B provisions of Code of Civil Procedure, on the basis of the principle that no one can be vexed twice for the same cause of action and on the principles of lathes. Resultantly, I see no force in this petition, hence the same is dismissed in limine.