1. ' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner Muhammad Aslam, by means of this Constitutional petition, has prayed for following relief: -- "It is prayed that in consideration of above, learned Court may be pleased to declare:
(a) Appeal was not entertainable on ground of timetable; nor disclosed any ground contemplated under section 66 of Motor Vehicles Ordinance;
(b) Short order dated 27-7-1995 and detailed judgment dated 27-8-1995 passed by learned respondent No,1 restoring order of 6-1-1995 was without lawful authority and of no legal effect;
(c) Learned Court may be further pleased to issue appropriate directions for observance of departure timings of 10-00 a.m. As determined by Regional Transport Authority vide its Order dated 24-4-1995."
2. ' It may be noted that earlier to instant petition, impugned order, dated 27th August, 1995, passed by Chairman, Provincial Transport Authority was challenged before this Court in C.P. No,231/95. In the meanwhile when said matter was heard and judgment was reserved, petitioner submitted an application being C.M. No,932/95, praying therein for permission to withdraw the petition, as it had transpired to him that a remedy by way of appeal is available against impugned order. It would be appropriate to reproduce hereinbelow relevant paras. From the said application:--- "2. That the above titled petition, the petitioner has primarily attacked Order of Chairman, Transport Authority dated 27-7-1995 on this bona fide impression that no other remedy against the same is available but subsequent to filing of the petition it has transpired that a remedy in the shape of appeal to the Board of Revenue has provided by section 96-A of the Motor Vehicles Rules, 1969 is available.
3. That in the light of above-quoted legal position the petitioner intends to file an appeal before the Board of Revenue against the impugned order of the Chairman, Provincial Transport Authority, therefore, he craves for the grant of permission to withdraw the petition with the permission to file afresh one if needed. It is prayed accordingly.
3. (Sd.)
4. Petitioner/Applicant through Counsel.
5. Dated: 28-9-1995."
6. ' Thus, in pursuance of above request of petitioner, petition was dismissed on 2-10-1995, as withdrawn with observations that he has always right to approach competent forum, if law so permits.
7. ' It appears that appeal before the Full Board of Revenue, challenging the impugned order, was dismissed on 30th November, 1995, for want of jurisdiction. Petitioner did not challenge said order, but has instituted instant Constitutional petition, claiming the relief against the order, which was the subject-matter of earlier petition.
8. ' On our querry, Mr. Aslam Chisthti, learned counsel for petitioner conceded order dated 27-7- 1995/27-8-1995, was not appealable under Rule 96-A of the Motor Vehicles Rules, 1969, therefore, petitioner's appeal has been rightly rejected by the Board of Revenue.
9. ' Mr. Shakeel Ahmad, learned counsel on behalf of private respondent objected on the maintainability of instant petition in view of Order XXIII, Rule 1, C.P.C. It is contended by him that petitioner withdrew earlier petition, as according to his own satisfaction, alternate remedy by filing appeal before the Board of Revenue under section 96-A of the West Pakistan Motor Vehicles Rules, 1969, was available to him. Therefore, this Court while allowing his request vide order, dated 2nd October, 1995, did not grant permission for instituting fresh Constitutional petition, on the same cause of action.
10. ' On the other hand Mr. Aslam Chishti, learned counsel for petitioner canvassed that this Court in the order passed in earlier Constitutional Petition No,231 of 1995, observed that petitioner has always a right to approach competent forum, if law so permits. Therefore, according to him, petitioner is at liberty to institute fresh petition. Learned counsel also stressed that once permission to withdraw a suit or Constitutional petition is granted, it also contains permission to institute a fresh suit or petition, notwithstanding the fact that even if such observations have not been made in the withdrawal order. In this behalf, he made reference to PLD 1959 SC (Pak.) 287, 1970 SCMR 141 and PLD 1990 SC 596.
11. We have, considered parties' contentions in view of the principle enunciated by Hon'ble Supreme Court, in the reports cited by Mr. Aslam Chishti, Advocate, and in pursuance, therefore, no other conclusion can be derived, except holding that in a case where permission to withdraw a suit or Constitutional petition has been granted in view of inherent defects, pointed out in the plaint or body of petition, which are not curable without instituting fresh proceedings as envisaged under Order XXIII, rule 1, C.P.C., permission to institute fresh suit or petition follows automatically, even if that has not been granted expressly. But there is an exception to this rule, namely, when an application has been moved to withdraw a suit or petition without disclosing inherent defect in it, particularly mentioning that alternate remedy by way of instituting other proceedings namely appeal, revision etc. Is available, such permission to withdraw a suit or petition will not contain in its fold, automatic. -permission to tile fresh suit or petition, on the same cause of action. In the case in hand, petitioner on filing earlier Constitutional petition (C.P. No,231/95) argued the case and when on hearing arguments of both the sides, judgment was reserved, he brought an application, and specifically mentioned therein that he intends to file an appeal before the Board of Revenue under section 96-A of the West Pakistan Motor Vehicles Rules, 1969 and after withdrawing petition.
12. Petitioner factually filed appeal, which was heard and dismissed on 30th November, 1995, by the Board of Revenue, comprising of three members for want of jurisdiction. The order was conceded to by the petitioner, as the same has not been challenged before this Court and petitioner's counsel contended that legally appeal was not competent before the Board of Revenue against the order, dated 27th August, 1995 passed by Chairman, Provincial Transport Authority. Balochistan, who was also holding the office of Member, Board of Revenue. It may be noted that under the scheme of Motor Vehicle Ordinance and Rules framed thereunder, an appeal against the order passed by Chairman, is competent before the Board, if the former had acted under original jurisdiction and no appeal lies when an order by the Chairman has been passed in exercise of Appellate jurisdiction, conferred upon him under section 66 of the Motor Vehicles Ordinance, 1965.
13. Thus in such state of affairs, permission to withdraw Constitutional petition, was not granted to petitioner on account of the defects which were not capable of removal, except filing of fresh petition on withdrawing the earlier one. Therefore, such category of withdrawal order shall not follow automatic permission for filing fresh petition on same cause of action. As far as concluding para. Of the withdrawal order is concerned that contains observations with regard to filing of appeal by petitioner before the Board of Revenue, under section 96-A, subject to condition, if law so permits. Thus, it is concluded that the instant Constitutional petition, on the same cause of action is not maintainable.
14. ' Mr. Shakeel Ahmad, Advocate, also raised objection, concerning the question that petition suffers from laches, as according to him, the appellate order under challenge was passed by Chairman on 27th August, 1995, whereas the Board of Revenue, comprising of three members dismissed the appeal on 30th November, 1995, and petition before this Court has been filed on 30th January, 1996, without an application seeking exemption from laches, therefore, on this score as well, petition is not maintainable. To substantiate the objection, he referred to PLD 1983 Quetta 61 and 1992 PSC 660.
15. ' Mr. Aslam Chishti, learned counsel, however, contended that in the given circumstances of case, coupled with a detailed explanation submitted by petitioner, in an affidavit annexed with the memo. Of petition and also in view of the fact that copies of relevant documents were not made available to him, petition does not suffer from laches. In this behalf, as placed reliance on 1987 SCMR 1119.
16. ' It is to be noted that petitioner had annexed photostat copy of the orders under challenge, dated 27th July and 27th August, 1995, which probably he had obtained when the earlier petition was filed, whereas remaining Annexures are also photostat of the certified copies obtained by him in the years 1994 and 1995, except the copy of the order passed by the Full Board on 30th November, 1995, which too was supplied on 24th December, 1995. Mr. Aslam Chishti, Advocate, drew our attention towards application, dated 23rd January, 1996, filed by him before the Secretary, Regional Transport Authority, Khuzdar, praying for supply of copies of the application of objector, minutes of meeting and copy of timetable. It is not known that how these documents were important for filing alongwith the petition, because the timetable was already in possession of petitioner, and he filed these documents alongwith earlier petition and that's why even alongwith this petition, he has filed those documents in photostat. It is important to note that in the memo. Of petition exemption from laches has not been claimed by mentioning all these facts, nor such request has been made by moving a separate application alongwith the petition. No doubt like delay of the period of limitation, if proceedings suffer from laches, condonation/exemption can be claimed by expressly praying (for) the same in the main petition or at least by moving a separate application, enabling the other side to contest the same by filing counter-replies and mere filing of a detailed affidavit alongwith the petition would not be sufficient to claim concession in this behalf. As it is a known fact that affidavits are sworn to support a statement of fact, incorporated in the petition or application, but when there is no such fact in pleading, filing .Of affidavit would not be sufficient to achieve the object. In addition to it, it is noteworthy that petitioner had himself chosen to file an appeal before the Board of Revenue against the 'order of Provincial Transport Authority, which was not competent, as it has been conceded by his counsel, therefore, on account of the negligence committed by petitioner, but he cannot be rewarded by allowing exemption from laches in instituting proceedings against the order, which has been passed as back as on 27th August, 1995.
17. In such like matters, negligence committed by petitioner or his counsel is always deemed important because on such account, the opponents/respondents cannot be penalized by dragging them again and again in the Court of law. It is noteworthy that petitioner has invoked Constitutional jurisdiction of this Court which is purely discretionary relief, under Article 199 of the Constitution and once it is established that petitioner had not followed his remedy diligently, the Court is not bound to exempt laches, because it would cause injustice to other side. As far as the judgment of Hon'ble Supreme Court cited by Mr. Aslam Chishti, Advocate, is concerned, it does not advance his case, in view of the facts narrated hereinabove. However, it would be appropriate to reproduce hereinbelow a passage from the said report:-- "It needs to be emphasised that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice, and equity and balance of legitimate rights are to be weighed; in the latter subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is, no such strict requirement cases of laches."
18. Therefore, in view of the above-principle and circumstances of the case, we are inclined to hold that it would not be in the interest of justice, equity and fairplay to re-open the matter in exercise of Constitutional jurisdiction, therefore, the petition is also treated not maintainable, as it suffers from unexplained laches.
19. ' In view of the above discussion, the petition is dismissed, leaving thel parties to bear their own costs.
20. ' Hereinabove are the reasons of our short order dated 27-3-1996.