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Petitioner: HAKIM KHAN VS Respondent: ASSISTANT COLLECTOR
1988 S C M R 1761
1988 S C M R 1761
Present: Muhammad Afzal Zullah, Abdul Kadir Shaikh, Javid Iqbal, Ghulam Mujaddid Mirza and Saad Saood Jan, JJ
HAKIM KHAN and others‑‑Petitioners versus
ASSISTANT COLLECTOR and others‑‑Respondents
Civil Petition No.139‑P of 1987, decided on 18th June, 1988.
(Against the judgment and order of the Peshawar High Court, Peshawar, dated 15‑9‑1987 in Writ Petition No.548 of 1986).
(a) North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑
-‑‑S.46‑‑Constitution of Pakistan (1973),. Arts.185(3) & 199‑ Discretionary writ jurisdiction , exercise of‑‑Tenant petitioners delinquent and defaulters in the conduct of Court proceedings‑ Tenant‑petitioners found delinquent and defaulters in conduct of ejectment proceedings against them‑‑Had' prolonged ejectment proceedings for twelve years‑‑High Court declined to exercise its discretionary writ jurisdiction in their favour on account of such conduct‑‑Order impugned‑‑Petitioners having failed to explain satisfactorily circumstances relating to their conduct which were taken note of by High Court for declining to grant them relief, impugned order was maintained‑‑Leave to appeal refused.
(b) North‑West Frontier Province Tenancy Act (XXV of 1950)‑‑
‑‑‑S.46‑‑Constitution of Pakistan (19735, Arts.185(3) & 199‑‑Tenant petitioners' ejectment from land‑‑Challenged in writ jurisdiction‑‑Plea that their claim for award of compensation relating to costs of improvements was not properly adjudicated, repelled with observation that it might still be possible for petitioners to get same determined through an application under S.46 of N.‑W.F.P. Tenancy Act. 1950, but ejectment would not be invalidated by reason of the omission of determination of their compensation‑‑Such treatment by learned Judges of High Court of the arguments raised in Constitutional jurisdiction not being in any way so erroneous as to justify interference by Supreme Court, leave to appeal refused.
Mian Shakirullah Jan, Advocate‑on‑Record for Petitioners.
Mian Younus Shah, Senior Advocate Supreme Court with Jan Muhammad Khan, Advocate‑on‑Record (absent) for Respondents.
Date of hearing: 18th June, 1988.
ORDER
MUHAMMAD AFZAL ZULLAH, J.‑‑‑Leave to appeal has been sought by the tenants' side in a land ejectment case, against the dismissal of their constitutional petition by the Peshawar High Court.
With regard to the conduct of the petitioners, the learned Judges of the High Court observed as follows.
"The defendant‑petitioners had absented from the proceedings although directed by the Member, Board of Revenue specifically. They had later on applied for setting aside of the ex parte decree after some three months. They had also been observed by the trial Court as well as the Member, Board of Revenue to be prolonging the proceedings by frivolous applications for adjournments. The petitioners are after all the tenants and the maxim "once a tenant always a tenant" must hold good in their case. After all they have to vacate the suit land some day. Twelve long years have elapsed that they have been prolonging the proceedings. They cannot be favoured with technical lacuna if any in the conduct of the proceedings the revenue forums. We are not inclined to exercise the discretionary jurisdiction in their favour after having found them delinquent and defaulters in the conduct, of the ejectment proceedings in the revenue Courts."
We afforded full opportunity to the learned counsel appearing for the petitioners to explain the circumstances relating 'to the conduct which were taken note of by the High Court for declining to grant them relief in its discretionary writ jurisdiction. He failed to satisfy us in this behalf.
However, we also heard the leaned counsel on the following two points raised before the High Court on behalf of the petitioners:‑
(i) "that since the suit (of the respondents' side) was dismissed in default on 26‑12‑1983 there was no formal order for restoration of the suit hence they could not be awarded an ex parte decree as against the petitioners in the case since decided and not formally restored.
(ii) that the claim of the petitioners for the award of compensation regarding costs of improvements was not properly adjudicated."
On the first point, the learned Judges of the High Court after making reference to the relevant facts and circumstances, rejected the petitioners' technical objection as unfounded. In respect of the compensation, the learned Judges made an observation that "it might still be possible for the petitioners to get the same determined through an application under section 46 of the N.‑W.F.P. Tenancy Act, 1950; but, the ejectment shall not be invalidated by reason of the omission of the determination of their compensation."
Such treatment by the learned Judges of the High Court of the arguments raised in the constitutional jurisdiction, cannot in any way be considered as erroneous so as to justify interference by this Court. Leave to appeal accordingly is refused.
M.I./H‑44/S Petition dismissed.