2021 C L C 1635
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
BIBI QURESH ----Petitioner
Versus
The GOVERNMENT OF BALOCHISTAN, through Secretary Home and Tribal Affairs
Department and 3 others ----Respondents
C.P. No.77 of 2018, decided on 17th August, 2020.
(a) Constitution of Pakistan ---
----Art.199--- Constitutional petition ---Maintainability ---Pendency of civil litigation---
Alternate remedy, availability of ---Effect ---Petitioner sought order restraining the
respondents from dis possessing her from the disputed property---Validity ---Petitioner had
already filed a suit for declaration and permanent injunction before the civil court and there was hardly any plausible basis or explanation to seek indulgence in the extraordinary jurisdiction of the High Court under Art.199 of the Constitution---Interference in
constitutional jurisdiction could not be solicited in the presence of an adequate alternate remedy ---Constitutional petition was dismissed.
Farzand Rana Naqvi and 5 others v. Muhammad Din through Legal Heirs and others
2004 SCMR 400 and Muslim Commercial Bank Ltd. and others v. Ahmed Ali and another 2007 SCMR 38 ref.
Mian Muhammad Yousaf and another v. Lahore Development Authority through
Director General, LDA and 5 others PLD 2 001 SC 393 rel.
(b) Constitution of Pakistan ---
----Art.199--- Constitutional jurisdiction--- Scope ---Pendency of civil litigation ---Effect ---
Where the aggrieved party has already initiated civil litigation, the invocation of constitutional jurisdiction will not be justified.
Mian Muhammad Yousaf and another v. Lahore Development Authority through
Director General, LDA and 5 others PLD 2001 SC 393 rel.
Nemo. for Petitioner.
Zahoor Ahmed Baloch, Assistant Advocate General for Respondents.
Date of hearing: 10th August, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----The petitioner has invoked the Constitutional
jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 with the following prayer: -
"a) To declare that the impugned act of the official respondents by means of stating the property in question as not disputed land and thereby trying to accommodate the private respondent by dispossessing the petitioner from the property in question (detail wh ereof is mentioned in para No.5 of the petition) is highly illegal, irregular,
hence be declared void ab -initio.
b) The official respondents be directed to discharge their functions as per Articles 4 and 5(2) of the Constitution of Islamic Republic of Paki stan, and section 24 -A of the
General Clauses Act, 1897.
c) The respondents be further directed to comply with the Court orders strictly in its full letter and spirit, moreover.
d) The respondents be restrained from dispossessing the petitioner from the pr operty in
question overtly or covertly so far the matter is subjudice before the competent Court of law.
e) Any other relief which this Hon'ble Court deems fit and proper may also be awarded, in the interest of justice, equity and fair play".
2. That on 10 .08.2012 the instant petition has taken up for the second time since
morning, despite service and repeated calls counsel for the petitioner was not in attendance. Same was the position on 19.05.2020, 20.04.2020 and 22.08.2019.
3. From the above, it transpi res that learned counsel for the petitioner has lost interest in
the matter.
4. Consequent to the above, we are left with no other option but to decide the matter on
the basis of available record after hearing learned A.A.G.
5. We perused the entire record and it reveals that for the subject matter of the instant
petition the petitioner has already filed a suit for declaration and permanent injunction before the Court of learned Civil Judge -VI, Quetta, against the respondent No.5 which is pending.
There is hardly any plausible basis or explanation to seek indulgence in the
extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
It has been consistently observed by Hon'ble Supreme Court that in presence of
adequate alternative remedy interference in Constitutional jurisdiction cannot be solicited.
Reference in this context can be made to the rule in Farzand Rana Naqvi and 5 others v.
Muhammad Din through Legal Heirs and others (2004 SCMR 400) and Muslim Commercial Bank Ltd. and others v. Ahmed Ali and another (2007 SCMR 38).
6. It is also a settled rule that where the aggrieved party has already initiated civil
litigation and parties are locked in litigation the invocation of Constitutional jurisdi ction will
not be justified. Reference can be made to the rule enunciated by the Hon'ble Court in the case of Mian Muhammad Yousaf and another v. Lahore Development Authority through Director General, LDA and 5 others (PLD 2001 SC 393) wherein it was held by the august Court as follows: -
"It is a settled law that the scope of the Constitutional jurisdiction is very limited and is confined to ascertain as to whether the Tribunal or the Appellate Authority or in this case, the Civil Court had the jurisdiction and whether after rejection of the plaint, the pendency of appeal against the disputed question of fact would not confer the jurisdiction on the High Court to entertain the petition in writ jurisdiction. Invoking of Constitutional jurisdiction of the High Court instead of availing of remedy provided for under relevant law would only be justified when the impugned order/action was palpably without jurisdiction as to force an aggrieved person in such a case to
approach the forum provided under the relevant statute may not be just and proper. In
the instant case the suits and an appeal are pending decision between the parties
before the Civil Courts and therefore, bypassing the remedy provided under the plenary jurisdiction of the Civil Courts would not be justified and to press into service the Constitutional jurisdiction of the High Court by the appellants can only be deprecated. The writ petition can be filed if an aggrieved person has no remedy under the statute against the impugned order passed by the Tri bunal. In the instant case, as
stated earlier, the parties are locked in civil litigation in three suits and on appeal and therefore, invocation of the Constitutional jurisdiction by the appellant is certainly an act which cannot be accorded credence in th e appeal before us".
7. The petitioner has adequate alternate remedy available to her and thus, it would be
appropriate that all the legal and factual points should be raised by the petitioner before the Civil Court.
Accordingly for the reason stated hereinabove, this petition being without any force is
hereby dismissed in limine.
SA/226/Bal. 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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