BASHARAT AHMAD SHAIKH, J.---Both these appeals have been filed by the same person against the same order by which an application for amendment of a writ petition filed by the appellant herein and for permission to implead Azad Government as a party was rejected. According to the appellant the two orders were separately passed, one being a short order while the other is a detailed order. This situation, which is abnormal in nature, will be explained at a subsequent stage of this judgment.
2. In the writ petition filed by him, appellant Muhammad Malik stated that he was in possession of a piece of land in Sub-Sector F-1, Mirpur whereupon he constructed a house and had continuously been living in it since 1968. The land under his possession was originally marked as Plots Nos.4 and
85. He applied on 3rd of January. 1974 for allotment of a plot specifically mentioning Plots Nos.4 and 85 as his choice. He also deposited earnest money. On 22nd of November, 1975 the Allotment of Land Committee of Mirpur Development Authority decided to regularise encroachments on payments of penalty and a list of encroachments was prepared. He stated that he was waiting for allotment since 1974, but he had come to know that land in his possession was allotted to some other person. On enquiry it had become known that the numbers of the aforementioned plots had been changed as 15/21 and 16/22 with mala fide intention. It was claimed in the writ petition that the allotments had beets made in violation of the mandatory provisions of the Mirpur Development Authority Regulations and were allotted surreptitiously. The written statement was filed by the respondents, but subsequently respondent No.5, Diwan A.I, moved an application for amendment of the written statement as he wanted to incorporate the averment that the plot in dispute was originally allotted in his name on 12th of May 1973. Amendment was allowed and amended written statement was filed on 27th of February 1990. In the written statement it was pleaded that it was a case of Special Regulations under which only previous allottees could file an application for allotment of plots. On 18th of January, 1996 the appellant moved an application in the High Court for permission to implead Azad Government as a party and for permission to add a new ground in the writ petition that the Special Regulations mentioned above were un-Constitutional being violative of Fundamental Right of Equality before Law.
3. Arguments were heard on the application and amendment was disallowed. The appellant filed an application for obtaining copy of the order passed on 13th of March, 1996. A certified copy issued to the appellant was to the following effect: "ORDER Amendment disallowed. To come up for arguments on 11-4-1996."
4. The appellant filed petition for leave to appeal and it was argued on his behalf that amendment had been disallowed without specifying any reason and that the application for amendment should have been allowed. Leave was granted on 19th of May, 1996. The appeal arising out of this petition for leave to appeal is No.33 of 1996 entered in the title of this judgment as at No. l
5. Another petition for leave to appeal was field by the appellant on 17th of July, 1996 to challenge the order of dismissal of his application for amendment but this time a certified copy of a detailed order containing reasons for dismissal of the application was filed. It carries the same date as the first order, i.e., 13th of March, 1996. This petition for leave to appeal was accompanied by an application for condonation of delay, if any. It is stated that when the appellant applied for copy of the order passed by the High Court on 13th March, 1996 a copy of short order was supplied to him.
However, subsequently he came to know through his counsel that a detailed order containing reasons for dismissal of the application for amendment was available in the High Court file.
Thereupon its certified copy was obtained and a fresh petition for leave to appeal was filed. In the petition for leave to appeal it is stated that before filing the first petition for leave to appeal the learned counsel for appellant Muhammad Malik personally looked into the file of the High Court and ensured that there was no detailed order on the file and it is on this satisfaction that previous petition for leave to appeal was lodged. It is further stated that after some time the learned counsel for the respondent, Ch. Muhammad Sharif Tariq, told the learned counsel for the appellant, Mr. Muhammad Riaz Inqalabi, that another detailed order was on the file. Thereupon Mr. Riaz Inqalabi inspected the file and found that a detailed order, containing grounds for rejection of prayer for amendment, was now available in the file. Its copy was duly obtained and a second petition for leave to appeal was filed. These averments were duly supported by an affidavit personally sworn by Mr. Riaz Inqalabi. It was requested that delay in filing the second petition for leave to appeal may be condoned because no delay was caused by the appellant herein.
6. After giving our anxious thought we have decided not to comment one way or the other on the statement supported by affidavit by 'Mr. Riaz Inqalabi mentioned above. The delay in filing the second petition for leave to appeal was caused due to mistake of the High Court Official because appellant had not applied for obtaining a certified copy of the "interim order" but had applied for obtaining a certified copy of the "order of the Court" passed on 13th of March, 1996. There is a marked difference between an "interim order" and "order of the Court" and in view of this distinction the officer was in any case at fault in issuing copy of the interim order. If there was no detailed order with the file the office could return the application on that ground, and if such an order was available its copy should have been supplied to the appellant. In our considered view it is beyond the scope of the present proceedings to decide this question. There is affidavit of Mr. Riez Inqalabi that detailed order was not available in the High Court file. The order carries the signature of the learned Judge and it shows that it was signed on 13th of March. When Mr. Riaz Inqalabi saw the file before filing the first petition for leave to appeal where was this document? Had it been misplaced somewhere and was subsequently attached with the file? Or whether it was not in existence, which we would not like to believe. These matters do not fall within the ambit of present proceedings. It was specifically stated in the writ petition and was supported by an affidavit of Mr. Riaz Inqalabi that it was Mr. Muhammad Sharif Tariq, AdvocatL who told Mr. Riaz Inqalabi that another detailed order was on the file. It is this knowledge on which the application for condonation has been based.
We note that this affidavit remains unrebutted. As noted above, the mistake of the office in issuing a wrong copy has, in the circumstances of the present case, made out a case for condonation. The delay is, therefore, condoned.
7. We may now proceed to examine the case on merits. It was stated that the necessity for the proposed amendment arose out of the fact that the respondent had amended the written statement and had taken the plea that the case was covered by the Special Regulations. In the application it was prayed that the Azad Government of the State of Jammu and Kashmir may be allowed to be added as a party and the following ground may also be allowed to be added:--- "(g) for that the decision dated 10-4-1984 is violative of the Constitutional grounds that all State subjects are equal before law and are entitled to the equal protection of law. Moreover allotment of plots in the name of only those on whose names the plots were cancelled in relaxation of the relevant rules and regulations and inviting applications only from such persons through notification dated 16th December, 1980 and Mirpur Development Authority Special Regulations, 1981 for the disposal of plots is ultra vires, unconstitutional and discriminatory mala fide and ineffective to the rights of the petitioner They are repugnant to the provisions of M.D.A. Act, Regulations and Constitution of 1974. The provisions of said notification regulations to this extent are illegal and liable to be struck down."
8. The reason for refusing the amendment as recorded in the order under appeal, is that the petitioner was not vigilant to find out that allotments in favour of the respondents were made in pursuance of the Government Notification issued in 1980 which was followed by the Special Regulations. It has been noted that the Government Notification was duly published in the Government Gazette and a large number of allotments were made under the Special Regulations.
Ti has been observed that the petitioner could not be un-aware of these Regulations. Another significant reason recorded for rejection of proposed amendment is that the application for amendment was moved four years after the filing of written statement in which it was pleaded that the case fell under the Special Regulations.
9. It has been vehemently contended by Mr. Riaz Inqalabi that the amendment prayed for by the appellant did not change the nature of the writ petition and it was necessary in the interest of justice to allow the amendment. He submitted that there is no limitation for seeking amendment if the application is otherwise in order.
10. Although it has not been noted by the learned Judge of the High Court, we may observe that the prayer of the appellant was not only for carrying out amendment in the writ petition but was for impleading a new respondent, the Azad Government of the State of Jammu and Kashmir. And both the prayers were interwoven. The reason for impleading Government as a party was that the Government Notification and the Special Regulations which arc sought .To be challenged, after obtaining permission for amendment, were framed by the Azad Government. The law applicable to application for impelading a new defendant or respondent is different from the law relating to prayer for amendment. It is true that normally delay is not a factor for seeking amendment but when a new party is added it is deemed that case against the new party has been instituted on the date on which the party is so added. On this point we may refer to sub-rule (5), rule 10 of Order I of the Code of Civil Procedure, which runs as follows:--- "(5) Subject to the provisions of the Indian Limitation Act, 1877, section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."
11. It is not within the legal rights of a party that he should be allowed in 1996 to institute a writ against Azad Government of the State of Jammu and Kashmir to challenge a Notification and Special Regulations framed in pursuance thereof in 1980 because it would be hit by the doctrine of laches. If the Notification of 1980 and the subsequent Special Regulations are challenged now hundreds of allotments made in pursuance thereof will be put to stake. It is clearly not allowed.
Since a fresh writ petition would be barred permission to add a new party and to allow the appellant to challenge a Notification when sixteen years' delay has occurred cannot be allowed. .
11-A. The case built up by the appellant is that necessity for the proposed amendment arose after the filing of the written statement in which the respondents stated that their case was covered by the Special Regulations framed in 1981. We have seen the High Court file and find that the amended written statement was filed on 13th of May, 1992 while the application for amendment was moved on 18th January, 1996. There is no explanation for this delay.