Mian Muhammad Riaz VS Mst Marhaba

JUDGMENT SHEET

PESHAWAR HIG H COURT. ABBOTTA BAD BENCH

JUDICIAL DEPARTMENT

Writ Petition No.69-A of 2017

JUDGMENT

Date of hearing ..09.03.2020

Petitioner(s) ... (Mian Muhammad Riaz and others) by Sardar Asad Ali Chohan. Advocate... ... ...

Respondent(s) ... (Mst. Marhaba 6nd others)by Syed Hammad Hussain Shah Gilani.

Advocate ...

AHMAD ALI. J.- The present petitioners invoke the equitable jurisdiction of this coun under Article 199 of the Constitution of Islamic Republic ofPakistan, 1973 seeking that;

"Il is most humbly prayed thut on acceptonce of lhe instanl petition: i. That impugned orders passed

$/ by learned respondents No.2 to 5 may please be declared as wrong, illegal, against the law and facts, arbitrary, fanciful, perverse, without lawful authority, unconstitutionul hence being not maintainable in the eye of law hence be struck down.

ii. That, the case lile be remanded bqck to the learned respondent No.2 lo decide the

same after affording opportuniA tu produce the defence evidence and of being heard to the petitioners and decide the same on merits after recording of evidence.

ut. Or nay other writ, order or relief which this Honourable Court may deem fit and proper in lhe circumslances of the cdse, may also be passed/issued.

2.The brief and essential facts leading to the present constitutional petition are that respondent No.1 filed applications for partition of landed propefiy against the predecessor of the petitioners before the Revenue Officer,, Balakot.

The predecessor of the petitioners was summoned, who appeared before the Courl and contested the applications by filing repiications. During the partition proceedings, the present petitioners filed a suit seeking declaration about title of the disputed land and also moved application to stay partition proceedings' The application for stay and the suit filed by the petitioners were dismissed up to the High Coud' The evidence of respondent No.l was recorded and closed on 02.03.2002. Thereafter, the case was fixed for evidence of the petitioners. The present petitioners

after repeated orders of the trial Court could not produce their evidence and the case was being adjourned at the request of the petitioners. The trial court vide order dated23.04.2002 provided a last opportunity to the petitioners to produce their evidence on next date of hearing, but they failed to do so. Finally, the trial court struck off the defence of the petitioners under Order 17 Rule 3 of the Code of Civil Procedure, 1908 vide the impugned order dated 29.04.2002 and accepted the partition applications filed by the petitioners.

, Aggrieved thereof, the petitioners filed appeal, which was dismissed by the Additional Deputy Commissioner, Mansehra (Respondent No.2) vide order dated 12.02.2004 The said order was impugned by the present petitioners through a revision petition before the M Additional Commissioner, Hazara Division, Abbottabad, which too was dismissed by him vide order dated 31.08.2006' Subsequently, the petitioners filed 2'd revision petition before the Member Board of Revenue, KhYber

Pakhtunkhwa, Peshawar, however, the said

revision was also dismissed vide impugned order dated 29.11.2016. Hence, the present writ petition.

4.Learned counsel for the Present

petitioners vehemently argued that the courts below have failed to exercise their jurisdiction in accordance with law and the vaiuable rights of the petitioners had been dealt with in a hasty manner without providing them opportunity of adducing evidence as is required under the law; that the trial court instead of providing opportunity to the petitioners to produce their evidence decided the partition applications on the said date by striking offthe defence ofthe petitioners under Order 17 Rule 3 of CPC.

5.Conversely, learned counsel for

respondent No.l contended that the leamed trial Court has provided several opportunities to the petitioners to produce their evidence but they did not avail those opportunities despite the final chance given to them on 23.04.2002; learned counsel further contended that the conduct of the petitioners throughout the proceedings remained

apathetic only to avert the pafiition proceedings;

he finally argued that the defence of the petitioners was rightly struck off and that the learned appellate and revisional Courts while agreeing with the findings of the learned trial Courl dismissed the appeal as well as revision of the petitioners by recording a well reasoned judgment, as such, the conclusion drawn requires no interference in the facts and circumstances of the case. Learned counsel for respondent No.1 in suppofi of his arguments referred to judgments rep orted as 2002 CLC 1039 1999 CLC 232 2012 cLC 709 PLJ 2010 Lahore 432 2008

SCMR 322 2014 SCMR 637 1996 SCMR 1967

and2020 SCMR 300.

6.Arguments of the learned counsel for the parties heard and the record perused.

7.In order to invoke the constitutional jurisdiction of this court; the petitioners have to show their bona fide ofapproaching this equitable Court with clean hands. In this regard, the august Supreme Court of Pakistan in Nawab Sved Rau naq Ali's case (PLD 1973 SC 236) and

following the dictum, the august Apex Court has in Secretary to the Government of Puniab Vs.

Ghulam Nabi (PLD 2001 SC 415) reiterated that;

"Therefore, High Court is not bound to grant relief to a petitioner simply because he was legally entitled to it, if the grant of such relief is immoral, unfair or against the dictates of good conscious and fair play. k hardly needs any elaboration that High Court is not obliged to press into service its Constilutional jurisdiction in every case in which illegality or void action or order is impugned. The courl is to see, whether the grant of relief prayed for will foster the cause of justice or will it perpetuste injustice. If the Court finds that in a given case lhough the action laken by the authority is illegal but setting aside of such an illegal action woukl result in miscarriage of juslice instead of advancing the cause of justice, the Court may decline to press into service its conslitutional jurisdiction."

In view of the above settled principle of law, the conduct of the petitioners before the trial court, wherein they despite repeated orders were unable # to record the testimony of their witnesses, delayed the proceedings on one pretext or the othel".

Similarly, they delayed the proceedings in the appellate as well as revisional Courts, which is not positive attribute of the petitioners manifested by their conduct in approaching the equilable jurisdiction of this Couft' Thus, their conduct

l

surely denies them the right to claim equity, when they have not come to the equitable Cout with clean hands. It is settled law that constitutional jurisdiction is always discretionary in character and it is also settled principle of law that One who seeks eq uitv must do equitv. Reference may be made to case titled 'Muhammad Ali Vs. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar' (2010 SCMR 8 The august Supreme Court of Pakistan in the case titled 'Moon Entetpriser CNG Station . Rawalp indi Vs. Suit Northern Gas Pipelines Limite d. lhroush General Man u ser.

Rawa indi and anolher' (2020 scMR 300), while dealing with a similar question of law pertaining to application of Order-XVII Rule 3 V C.P.C, has in unequivocal terms, heid that:

"In our view il is imPortanl for the purpose of maintaining the confidence of the litigants in the court systems antl lhe presiding officers that where last opportunity to produce evidence tis granted and the party has been warned of the consequences, the courl must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and teaffirm the majesty of the law but also put a check on the trend of

seeking multiple ddjournments on frivolous grounds to prolong and clelay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has nol only passed a judicial order but also made a promise to the parties to the lis that no furlher adjournments will be granted for any rcason. The Courl must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to protluce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) ancl then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Sach practices must be dis contin ued, forthw ith. "

This Court finds that in this case a sister (respondent No.1) is seeking right of partition of her property from her brother (predecessor of petitioners) but she could not get her right finalized due to the sluggish conduct of the V petitioners towards the proceedings and they have made every effort to prolong and delay the partition of the landed propefty for the last about nineteen years without any just and reasonable cause so that the matter could not reach the final decision. The impugned decisions are well reasoned and have provided the present petitioners ample and sufficient opportunity of

pleading their case in a reasonable and sufficient manner.

9.For the reasons stated hereinabove, this Court finds that the present petition does not merit acceptance. Hence, the present petition is dismissed, in limine

Announced.

D1.09.03.2020.

V

JUDGE

U$slss!/.

(SB)Mr Justice Ahnad AIi