GHULAM NABI SOOMRO, J.--- Petition No. 3083 was filed in 1993 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petition was dismissed for non-prosecution on 2.12.1999.
On 10.12.1999 the learned Advocate for the petitioner filed Miscellaneous Application No.5713 of 1999, under Order IX, Rule 9, Civil Procedure Code for recalling the order passed on 2.12.199.9.
At the hearing of the application, a question arose whether rule 9 of Order IX, C.P.C., or the Civil Procedure Code itself for that matter, has applicability in the -Constitutional petition. Following questions were, therefore, framed:- "(1) Whether the Constitutional jurisdiction being exercised by High Court under Article 199 of the Constitution, is regulated by C.P.C., as a whole?
(2) What is the procedure to be adopted for disposal of Constitutional petitions?
Substantially, the question is whether the Civil Procedure Code is applicability in the Constitutional petitions, and if so, its extent, M/s. Muhammad lqbal Kazi and Abdul Qadir Siddiqi, Advocates were requested to assist as amicus curiae. Mr. Muhammad lqbal Kazi has graciously devoted his valuable time to assist the Court on the point.
2. Mr. Abrar Hassan, learned counsel for the petitioner, submitted that jurisdiction under Article 199 of the Constitution may be both, civil as well as criminal, according to the nature of the relief claimed, and in the case of petitions of civil nature, Civil Procedure Code is applicable. He mainly relied upon the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others, reported as "PLD 1970 SC 1". He also cited Mumtaz Khan v.
Chief Settlement and Rehabilitation Commissioner and another petition , as is the practice at Lahore High Court, or a Constitutional Petition, as we do here, but the Constitution itself terms it as an "application" of any aggrieved party or any person.
8. What was intended, was that such an "application" would be decided and disposed of after hearing the applicant and the respondent called through a notice issued under the rules. There was no concept of interlocutory stages and applications like civil suits or appeals. If an interim order was necessary that could be passed in exercise of the same Constitutional jurisdiction. The Article itself provides for a power to grant an interim order. The practice,. However, is that interim stay is prayed for through an application under Order XXXIX, Rules 1 and 2, C.P.C., which neither is required, nor can be legally entertained in a Constitutional petition, because such an interim stay is to be granted in exercise of Constitutional jurisdiction and not under Order XXXIX, C.P.C. This can be understood from the provision of clause (4-A) of Article 199 and rule 4-A of Order XXXIX, C.P.C. If an interim stay is ordered under Order XXXIX, rules 1 and 2, C.P.0 , rule 4-A of the said Order shall apply, and not clause (4-A) of Article 199 of the Constitution In case such interim orders were to be made in the Constitutional petitions under Order XXXIX, rules 1 and 2, C.P.C. There was no necessity to insert clause (4-A) in Article 199 as rule 4-A, Order XXXIX, C.P.C. Was there for the purpose. Existence of clause (4-A) in Article 199 establishes that interim stay in Constitutional petitions are to be ordered under the same Article, and not under Order XXXIX, C.P.C.
9. Moreover, since suits, appeals and trials are comprehensive proceedings, there is a concept of interlocutory applications in all such proceedings. An interlocutory application can be filed in a suit, it can be filed in an appeal or trial but filing an application in an application is a -queer concept, and Constitutional petition under Article 199 is an application, as the Article itself puts it. This is an application and it is to be proceeded with and decided as an application.
Since Article 199 of the Constitution, 1973, does not provide: for applicability of law, as was done in Article 98 of the Constitution of 1962, there is no bar of limitation an till an illegal order or action continues, a petition can be filed, or repeated in case of dismissed of earlier one for non- prosecution. Dismissal of a Constitutional petition for non-prosecution is a refusal to exercise that jurisdiction. Thus, such a dismissal, as well as restoration of the petition, would be an exercise of the jurisdiction of the same Constitutional provision and not under any provision of Civil Procedure Code.
This petition was dismissed on 2.12.1999 and on 10.12.1999 Mr. Abrar Hassan filed the application for restoration alongwith his own affidavit. He submitted, in the affidavit, that he was busy in another Court, i.e. Another Bench of this Court, and his absence was not deliberate. The respondents have not controverted the plea. Restoration would be in the interest of justice. Petition is accordingly restored to the stage where it was dismissed.