P L D 2010 Quetta 73
Before Qazi F aez Isa, C J
AHMED KARAM and 2 others ---Petitioners
Versus
DIRECTOR OF EDUCATION (SCHOOLS), GOVERNMENT OF
BALOCHISTAN and 2 others ---Respondents
Constitutional Petition No.587 of 2008, decided on 24th June, 2010.
Civil Procedure Code (V of 190 8)---
----O. XXIII, R. 1(3) ---Constitution of Pakistan (1973), Art.199 ---Constitutional petition ---
Withdrawal of suit ---Subsequent order passed on the contempt application, allegedly filed on
the ground that the earlier order of the High Court had been v iolated, could not create any
fresh right in the petitioners or be made the basis of constitutional petition ---Disability
stipulated under O. XXIII, R.1(3), C. P. C. could not also he overcome in such a manner ---
Constitutional petition was dismissed.
Tahir Ali Baloch for Petitioners.
Abdul Aziz Khilji, Additional Advocate -General for Respondents.
ORDER
QAZI FAEZ ISA, C.J. ---Through the instant petition the petitioners have sought declaration
that they, "are serving in the Education Department" a nd that they be allowed to perform their
jobs as Junior Arabic Teacher or Moallim -ul-Quran, as the case may be and the salary
withheld by the respondents may be directed to be released to them.
2. Parawise comments were filed by the respondents and on 16 -6-2010 it was ordered that as
the matter is pending since 2008, it may be disposed of on merits. We accordingly heard Mr.
Tahir Ali Baloch, Advocate for petitioners and Mr. Abdul Aziz Khilji, Additional Advocate -
General ("Add.A. -G.") for respondents.
3. At the very outset the learned Addl.A. -G. drew our attention to the fact that the subject -
matter of instant petition was earlier agitated in Constitutional Petition No.673 of 2007,
wherein parawise comments too were filed. Learned Addl.A. -G. stated that t he said
Constitutional petition was withdrawn by the petitioners, vide order dated 7 -1-2008, which is
reproduced as under:
"Learned counsel for the petitioner after having gone through the parawise comments
filed by the respondent does not press the peti tion at this stage and request for
withdrawal of the same, the petition is dismissed as withdrawn."
4. Learned Addl.A. -G. stated that the degrees of the petitioners were not issued by any
madrassa affiliated with the Education Department and or by Higher Education Commission
and this objection was also taken in the comments filed in C.P. No.673 of 2007. He further
stated that the very same objection is also taken in the comments filed in the instant petition,
but despite such specific denial of status of petitioners no rejoinder to the same has been
submitted nor any document to show the affiliation of Ittihad -ul-Madaris, Al -Arabia with
Higher Education Commission. Learned Addl.A. -G. has also relied upon section 1I and sub -
rule (3) of Rule 1 of Order XXIII , C.P.C., which respectively stipulate as under: ---
"Section 11. Res Judicata .--No court shall try any suit or issue in which the matter
directly and substantially in issue has been directly and substantially in issue in a
former suit between the same pa rties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised, and has
been heard and finally decided by such C ourt."
"Order XXIII, Rule 1(3) .--Where the plaintiff withdraws from a suit, or abandons part
of a claim, without the permission referred to in sub -rule (2), he shall be liable for
such costs as the Court may award and shall be precluded from instituting any fresh
suit in respect of such subject -matter or such part of the claim . (Emphasis added)".
5. When confronted with the aforesaid, learned counsel for the petitioner stated that after
withdrawal of C.P. No.673 of 2007 he filed contempt application, wh ich was disposed of vide
order dated 19 -8-2008 and pursuant to the said order the instant petition was filed. Order
dated 19 -8-2008 passed on said Contempt Application No.5 of 2008 is reproduced below: --
"After going through the reply filed by respondent s, learned counsel for the applicants
contemplates to file a Constitutional Petition against the concerned persons who are
not allowing him to perform his duties and requests for withdrawal of the application.
Order accordingly. The application is dismis sed as withdrawn and the applicants if so
desire, may approach the competent forum for the redress of their grievance.
Application stands disposed of in the above terms."
6. Constitutional Petition No.673 of 2008 was dismissed vide order dated 7 -1-2008 and to
such extent the matter stood concluded. The subsequent order dated 19 -8-2008 passed on the
contempt application, allegedly filed on the ground that the earlier order of this court had
been violated, could not create any fresh right in the petitione rs or be made the basis of the
instant petition. The disability stipulated under sub -rule (3) of Rule 1 of Order XXIII, C.P.C.
can also not be overcome in such manner. Moreover, the petitioners have not produced any
document to show that the degrees allege dly held by them, copies whereof have not even
been filed, were issued by a recognized institution nor have rebutted the specific denial of the
respondents in this regard. Accordingly, this petition is dismissed in limine, but with no order
as to costs.
M.A.K. /89/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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