2024 M L D 1863
[Balochistan]
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
Syed MUHAMMAD TASLEEM SHAH ---Petitioner
Versus
GOVERNMENT OF PAKISTAN through Ministry of Religious Affairs and Interfaith
Harmony Islamabad and others ---Respondents
C.P. No. 1780 of 2022, decided on 20th November, 2023.
Constitution of Pakistan ---
----Arts.175(2) & 199--- Constitutional jurisdiction of High Court ---Scope ---Equitable relief
upon culmination of civil litigation regarding title in tenancy of shops of Evacuee Property
Trust Board ---Filing of constitutional petition after lapse of six month for removing the lock
and decision on his application for transfer of rent receipt in his name ---Validity ---Petitioner
had hot approached High Court with clean hands and sought a declaration of his title in respect of the disputed shop, which had already been declined by Civil Court ---Conduct of
petitioner could be taken into consideration in allowing or disallowing equitable relief in constitutional jurisdiction ---Principle of the court leaning in favour of adjudication of causes
on merits appears to be available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour ---
High Court, in exercise of writ jurisdiction, is bound to proceed on the maxim "who seeks equity must do equity" ---Constitutional jurisdiction is an equitable jurisdiction and whoever
comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands ---Writ jurisdiction cannot be exercised in aid of injustice ---Petitioner could claim
relief only when he himself was not violating provisions of law, especially of the law under which he was claiming entitlement---High Court cannot exercise its jurisdiction if it leads ultimately to patent injustice ---Constitutional petition was dismissed accordingly.
Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137; Abdul Wahid Khan v. Custodian
of Evacuee Property PLD 1966 Quetta 25 and Muhammad Arif v. Uzma Afzal 2011 SCMR 374 rel.
Khushnood Ahmed for Petitioner.
Adnan Ejaz Sheikh for Respondents Nos. 2 and 3.
Khalil Ahmed Yousafzai for Respondents Nos. 4 to 6.
Abdul Zakir Kakar, Deputy Attorney General for the State.
Date of hearing: 14th November, 2023.
JUDGMENT
ROZI KHAN BARRECH, J .---Through this petition filed under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed as under:
"It is, therefore, respectfully prayed that impugned action of official respondents putting the lock in the shop in question is without any lawful authority and against the law and natural justice and be declared as such and the official respondents be directed to remove the lock and decide the applications and reply to earlier notice and application for transferring rent receipt in the name of petitioner which is pending before the respondent within a reasonable time strictly in accordance with law and affording proper opportunity of personal hearing to the petitioner, in the interest of justice, equity and fairplay.
Any other relief deemed fit and appropriate in the circumstances of the case may also
be awarded."
2. It is the case of the petitioner that his father and grandfather of private respondents,
namely late Yaseen Shah, in the year 1955, obtained a shop No.2- 37/18 situated at Masjid
Road Quetta from Evacuee Trust Property Board, Government of Pakistan (in short "the Board"). The name of the predecessor -in-interest of private respondents, namely Syed
Muhammad Amin Shah, as Benami tenant. Late Yaseen Shah, father of the petitioner, was in possession of such a shop and using it as Godown till 2008. . After his death, possession was given to the petitioner. The predecessor -in-interest of private respondents filed a suit for
possession of the disputed shop, claiming that he is a tenant of the shop in question and the petitioner is in illegal possession of the same being Civil Suit No. 145/2008, which was dismissed by the learned Civil Judge -III Quetta on 04.12.2009. Thereafter an appeal was
filed before the learned Additional District Judge -I Quetta, and the same was dismissed vide
order dated 21.07.2010. Both the judgment and decree were assailed before this court in C.P. No. 562/2010 by the private respondents and the same was dismissed on 28.10.2013, which was not challenged before the Hon'ble Apex Court, and same attained finality. It is further contended in the petition that in the year 2002, the petitioner took part in the auction of the
property called by the Board by submitting the bid and depositing the bid amount, i.e., 1/4
price on winning the bid on behalf of Benami tenant, i.e., predecessor of private respondents,
however, the Hon'ble Supreme Court cancelled all the auctions of properties throughout
Pakistan belonging to the Board. The petitioner and private respondents approached
respondent No.2 with the request to deposit rent of the property, but he refused. It is contended in the petition that the private respondent, with the connivance of the official respondent with mala fide intentions are continuously harassing the petitioner, and the
predecessor -in-interest of the private respondent died in the year 2019, and after that, the
petitioner filed a suit being Civil Suit No. 109/2019 against private respondents and Assistant
Administrator of the Board, Quetta for declaration and consequential relief. The said suit was partly decreed in favor of the petitioner by the learned Civil Judge -III, Quetta, on
13.08.2021. Being aggrieved from the judgment and decree dated 13.08.2021, the petitioner, as well as private respondents, preferred appeal before the learned Additional District Judge -
IX Quetta, where by the appellate court after hearing the parties set aside the judgment passed by the trial court and dismissed the suit. On 03.08.2022, the petitioner received a notice for ejectment from respondent for illegal occupation of the shop in question within seven days. It is further claimed by the petitioner that he came to know that respondent No.2 wants to hand over the possession of the shop in question to private respondents and due to the act of the official respondents. The petitioner, having been left with no other alternate, efficacious, and speedy remedy, has filed the instant constitution petition.
3. We have heard the learned counsel for the petitioner, learned counsel for the private
respondents, learned Deputy Attorney General and have perused the material available on record with their able assistance.
4. Admittedly, private respondents filed the suit for possession before the learned Civil
Judge -III Quetta, and the same was dismissed on 04.12.2009, whereas the appeal and
constitution petition filed thereon by the private respondents were also dismissed by the appellate court as well as by this court. It is worthwhile to mention here that the petitioner also filed a suit for declaration, permanent injunction, and consequential relief before the learned Civil Judge -III, Quetta, and in the said suit, the petitioner also prayed that the
"official defendants be directed to issue rent receipt on the name of the plaintiff, to collect the rent after issuing the proper receipt of tenancy of property". The suit was partly decreed on 13.08.2021, against which private respondents filed an appeal challenging the judgment and decree dated 13.08.2021 before the learned Additional District Judge -IX Quetta,
whereby the learned Additional District Judge -IX, Quetta accepted the appeal filed by
private respondents under section 96 C.P.C. vide judgment dated 10th February 2022 passed in Civil Appeal No. 27/2021 and the suit filed by the petitioner was dismissed. The petitioner failed to establish his title before the civil court. After six months from the passing of the impugned judgment dated 10th February 2022 passed in Civil Appeal No. 27/2021, the petitioner filed the instant constitution petition on 27.10.2022 wherein he has also prayed "for transfer of rent received in the name of the petitioner".
5. In view of the above, it is clear that the petitioner has not approached this court with
clean hands and wants a declaration of his title in respect of the disputed shop, which has
already been declined by the civil court.
6. There is no cavil to the proposition that the "conduct of petitioner can be taken into
consideration in allowing or disallowing equitable relief in constitutional jurisdiction. The principle that the court should lean in favour of adjudication of causes on merits appears to be available for invocation only when the person relying on it himself comes to the court with clean hands and equitable considerations also lie in his favour. High Court, in exercise of writ jurisdiction, is bound to proceed on the maxim "he who seeks equity must do equity". Constitutional jurisdiction is an equitable jurisdiction. Whoever comes to High Court to seek relief has to satisfy the conscience of the Court that he has clean hands. Writ jurisdiction cannot be exercised in aid of injustice. The High Court will not grant relief under this Article when the petitioner does not come to the court with clean hands. He may claim relief only when he himself is not violating provisions of law, especially of the law under which he is claiming entitlement. It is well settled that who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioner can show that his conduct has not been such to disentitle him to such a relief. This jurisdiction of the High Court should not be exercised if it leads ultimately to a patent
injustice. Reliance in this regard is placed on Manzoor Hussain v. Zulfiqar Ali (1983 SCMR
137), Abdul Wahid Khan v. Custodian of Evacuee Property (PLD 1966 Quetta 25) and
Muhammad Arif v. Uzma Afzal (2011 SCMR 374).
For the above stated reasons we do not find any substance in the instant petition;
therefore, the same is dismissed.
SA/8/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,
let us know.