' CH. IJAZ AHMAD, J.---The brief facts out of which the present Intra-Court Appeal arises are that respondent No,5 filed Writ Petition No, 3672 of 1994 against respondents Nos. 1 to 4 with the following prayer:--- "In view of the above it is most respectfully prayed that the alternate land in the shape of Plot No, 819-A shown in the site plan prepared, measuring 2 Kanals, 5 Marlas may kindly be allotted to the petitioner in lieu of the land acquired from the petitioner in 1956 and the possession of the said plots may kindly be handed over to the petitioner."
2. The writ petition was accepted by this Court vide order, dated 21-9-1994. Present respondents Nos. 1 to 4 aggrieved by the aforesaid order of the learned Single Judge, filed I.C.A. No, 543 of 1994 which was finally dismissed as withdrawn vide order, dated 19-12-1994. Respondents Nos. 1 to 4 did not implement the judgment of this Court and respondent No,5 filed Criminal Original No, 699 W of 1994 which was finally disposed of by this Court vide order, dated 8-12-1994 in the following terms:- "The Deputy Director who is the competent Authority to issue transfer order has corrected the relevant entry in it in the Court and delivered the same to the learned counsel for the petitioner on behalf of the petitioner. The learned counsel for the petitioner has received the said allotment order. This petition stands disposed of."
3. The present appellant filed an application before the learned Single Judge under section 12(2), C.P.C., in Writ Petition, No, 3672 of 1994 against the judgment, dated 21-9-1994 which was dismissed as withdrawn vide order, dated 1-10-1995, thereafter, the appellants filed Writ Petition No, 15137 of 1995 with the following prayer:- "That the petitioner had filed application under section 12(2) of the C.P.C., which was fixed for hearing on 1-10-1995 before Mr. Justice Munir A. Sheikh who while hearing it remarked that instead of application under section 12(2) of the C.P.C., a regular writ petition should have been filed as the petitioners were not party to the Writ Petition No, 3672 of 1994 hence the application under section 12(2) of the C.P.C., was withdrawn, and now this writ petition is being filed. The petitioners despite their best efforts have not been able to get copies of the record.
' It is, therefore, most humbly prayed that the order passed by respondent No,1, dated 10-10-1990 affirmed by letter, dated 12-2-1991 may kindly be declared illegal, without lawful authority and without jurisdiction."
4. The learned Single Judge dismissed the writ petition vide impugned judgment, dated 29-11-1995, hence, this appeal. The learned counsel for the appellants submits that respondent No,5 has left the country and stated before the Deputy Director, through an application, dated 17-3-1986 that they could not pursue the matter with the authority concerned as is evident from Annexure-H. He further submits that respondent No,5 obtained the order from this Court by fraud or by misrepresentation and in violation of the letter of Deputy Secretary, Development, Government of the Punjab, Housing and Physical Planning Department, dated 30th of January, 1979 (Annexure with the writ petition) and letter, dated 6th of July, 1980 from the Chief Secretary, Government of the Punjab, Housing and Physical Planning Department and others, regarding filiation of public park.
The learned counsel for the appellants submits that the learned Single Judge erred in law to dismiss the writ petition of the petitioner without adverting to the aforesaid documents. He further submits that in similar circumstances, this Court accepted the contention of the petitioners and set aside the allotment order being in violation of the instructions of the respondents that public places cannot be converted and allotted for residential purpose and the respondents Nos.1 to 4 have no authority to change the master plan. In support of his contention he relied upon the judgment reported as Munshi Ullah Khan and 3 others v. Lahore Development Authority and 4 others.
5. Mr. Zafar Ali Shah, Advocate for respondents Nos. 5 to 9 raised preliminary objection that the writ petition as well as appeal is liable to be dismissed as the appellant filed an application under section 12(2), C.P.C., which was subsequently dismissed as with drawn by them without the permission to avail remedy provided under the law. He further submits that the learned Single Judge was justified not to exercise discretion in favour of the appellants as the respondents were allotted land in obedience to the direction of this Court passed in Writ Petition No, 3672 of 1994. He further submits that the appellants have no authority whatsoever to challenge the order of the learned Single Judge passed in Writ Petition No, 3672 of 1994 in the Constitutional petition. Further submits that the appellants themselves admitted that some part of the area falls in Dhobi Ghat in para. 8 of the Writ Petition. Further submits that there was no Dhobi Ghats Scheme existed at all.
These facts being the case in the area of disputed questions of fact and this Court has no jurisdiction to resolve the disputed question of facts in the Constitutional jurisdiction. Further submits that the appellants have filed writ petition in representative capacity without observing the formalities of Order 1, Rule 8 of the C.P.C. Further submits that the appellants have only remedy to file a civil suit after observing the formalities provided under sections 91 and 92 of the C.P.C. The learned counsel for the Municipal Committee (respondent No,20) Mr. Aamar Rehman, Advocate, submits that respondent No,2 is a pro forma respondent and has no concern with the present controversy between the appellants and respondents Nos. 5 to 9.
6. Mr. Ijaz Ahmed Chaudhry, Additional Advocate-General appearing on behalf of respondents Nos.
1 to 4 submits that the order in Writ Petition No, 3672 of 1994 and in I.-C.A. No, 543 of 1994 have attained finality and the writ petition was rightly dismissed by the learned Single Judge. He further submits that the learned Single Judge exercised the discretion in accordance with the law laid down by the superior Court keeping in view the circumstances of the present case.
7. The learned counsel for the appellants in rebuttal submits that the Municipal Committee has taken possession of the land in question and declared the same as park by investing Rs, 4 lacs.
8. We have considered the contentions of the learned counsel of the parties and perused the record out-selves. It is admitted fact that respondent No,5 has filed Writ Petition No, 3672 of 1994 which was accepted and respondents Nos. 1 to 4 filed I.-C.A. No, 543 of 1994, which was dismissed as withdrawn vide order, dated 19-12-1994. The appellants being aggrieved filed an application under section 12(2) of the C.P.C., before the learned Single Judge which was withdrawn by the appellants on 1-10-1995 without the permission to avail of other legal remedy or to file writ petition.
The learned Single Judge has observed in para. No, 5 in the following terms:--- "I am not inclined to interfere in exercise of discretion under Article 199 of the Constitution particularly when. The same had been upheld by the judgment of this Court passed in Writ Petition No, 3672 of 1994."
9. The learned Single Judge was justified to dismiss the writ petition as the learned Single Judge has no lawful authority to set aside the order passed in Writ Petition No, 3672 of 1994 in exercise of Constitutional jurisdiction. The appellants were well within their rights to file Intra-Court Appeal before this Court, against the order of the learned Single Judge passed in Writ Petition No, 3672 of 1994 as per principle laid down by the Hon'ble Supreme Court in H.M. Saya & Co., Karachi's case (PLD 1969 SC 65). The other contentions raised by the learned counsel of the appellants that respondent No,5 obtained the order by misrepresentation or by playing fraud with the respondents Nos. 1 to 4, have no force, as the appellants failed to allege specific allegations of malice against respondents Nos.1 to 4. It is settled proposition of law that general allegation of mala fide is not sustainable in the eyes of law as per principle laid down by the Hon'ble Supreme Court in Saeed Ahmed Khan's case (PLD 1974 SC 151). The learned Single Judge has exercised discretion in accordance with the circumstances of the present case as is evident from the following observations of the learned Single Judge:- "5. As I have already observed it was due to special and peculiar circumstances of this case that the authorities were constrained to carve out the said two plots of an area of 2 Kanals,
5. Marlas to compensate the respondent family which had been deprived of their valuable rights since 1954 and no compensation granted to them since then for their property acquired. The instructions issued by the authorities from time to time prohibiting utilization of the land under the public parks for any other purpose could certainly be modified by the same authority and the respondents having carved 'out the said two plots shall be deemed to have decided to reduce the size of the park by an area of 2 Kanals, 5 Marlas to which in my view in this case of hardship and to do complete justice, they were justified and I am not inclined to interfere in exercise of discretion under Article 199 of the Constitution particularly when the same had been upheld by the judgment of this Court passed in Writ Petition No, 3672 of 1994.
6. It is not a case where the entire plot reserved as public park has been used for another purpose.
It is a case where only the size of the same has been reduced by an area measuring 2 Kanals, 5 Marlas and the inhabitants of the locality have not been deprived of the facility of the park which is still available for recreation purpose."
10. Mere reading of the aforesaid paragraph clearly shows that the learned Single Judge, has rightly refused to exercise discretion in favour of the appellants as the appellants did not challenge the original order passed by this Court in Writ Petition No,3672 of 1994 coupled with the facts that the respondent No,5 is fighting for his right since 1956.
11. The judgment cited by the learned counsel of the appellants are distinguished on facts and. Law as in the cited case, no original order was passed against respondents in writ petition, whereas, in the present case as mentioned above, respondent No,5 had filed writ petition which was decided in favour of respondent No,5.
12. The learned counsel of the appellants has failed to point out any illegality or irregularity committed by the learned Single Judge, while dismissing the Constitutional petition. The I.-C.A. Has no merits and the same is hereby dismissed. However, the parties are left to bear their own costs.