| Citation(s) |
|---|
| 2003 SLG 3370 2003 SLD 3370 = 2003 PLD 405 |
Sindh High Court
High Court Appeals Nos. 297 and 325 of 1999, decided on 30thAugust, 2002. DATE of hearing; 7th August, 2002
SABIHUDDIN AHMED AND S. ALI ASLAM, JAFRI, JJ
Khalid Javed for Appellant (in H.C.A. No. 297 of 1999) and for
Respondent (in H.C.A. No. 325 of 1999).Syed Amjad Hussain for
Respondents (in H.C.A. No. 297 of 1999) and for Appellant (in H.C.A. No. 325 of 1999).
High Court Appeals Nos. 297 and 325 of 1999, decided on 30thAugust, 2002. DATE of hearing; 7th August, 2002
SABIHUDDIN AHMED AND S. ALI ASLAM, JAFRI, JJ
Khalid Javed for Appellant (in H.C.A. No. 297 of 1999) and for
Respondent (in H.C.A. No. 325 of 1999).Syed Amjad Hussain for
Respondents (in H.C.A. No. 297 of 1999) and for Appellant (in H.C.A. No. 325 of 1999).
AMBER AHMED KHANvsPAKISTAN INTERNATIONAL AIRLINES CORPORATION, Karachi AIRPORT, Karachi
Law: Constitution of Pakistan, 1973
Section: 199
Law: Civil Procedure Code (V of 1908)
Section: O.XXIII. R.1
Law: Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)
Section: 9(2),11 & 32,29
Law: Contract Act (IX of 1872)
Section: 15 & 16,73 & 74
Law: Qanun-e-Shahadat (10 of 1984)
Section: 119
(a) Constitution of Pakistan (1973)-------Art.199---Civil Procedure Code (V of 1908), O.XXIII. R.1---Withdrawal of Constitutional petition without permission and subsequently filing civil suit seeking same relief---Effect---Such withdrawal would not preclude plaintiff from seeking relief through ordinary proceedings--- Principles.Admittedly the Constitutional petition before High Court was eventually withdrawn by the plaintiff and it is not possible to say that upon such withdrawal, the plaintiff stood precluded from seeking relief through ordinary proceedings. Indeed under Order XXIII, Rule 1, C.P.C, a plaintiff cannot file a second suit after withdrawing the first one on the same cause of action, unless permission to do so has been accorded by the Court. Though normally the broad principles and procedural provisions of C.P.C. are applicable to Constitutional petitions, the provisions of Order XXIII, Rule 1. C.P.C., cannot, by the very nature of the jurisdiction under Article 199, apply to cases of withdrawal of a constitutional petition and filing a civil suit subsequently. It needs to be kept in view that a pre-condition for invoking the jurisdiction under Article 199 is the absence of an alternate remedy. If a petitioner, on account of some mistake or misconception, files a Constitutional petition seeking a particular relief and subsequently realizes that an alternate and equally efficacious remedy by way of a civil suit was available the right course for him ought to be to withdraw the petition and file a suit. To insist that he could not do so without obtaining the permission of the Court before whom the petition is filed would amount to ignoring the extraordinary nature of proceedings under Article 199 and defeating the concept of Constitutional remedies. (b) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)-------Art. 9(2)---Matter relating to terms and conditions of service---Complaint before Mohtasib would not be maintainable. (c) Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)-------Arts. 11 & 32---Order passed by Mohtasib---Such order could be set aside by the President on application of…