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Petitioner: DILAWAR HUSSAIN VS Respondent: YAR GUL AND 5 OTHERS
Court Name: Lahore High Court Judge(s): Zakiuddin Pal Title: DILAWAR HUSSAIN vs YAR GUL AND 5 OTHERS Case No.: Writ Petition No, 198 of 1979 Date of Judgment:1979-08-12 Reported As: 1980 CLC 1491 Result: Order accordingly
JUDGMENT
JUDGMENT ' This judgment will also dispose of Writ Petition No, 1647/79 and 1094/79, as similar questions of law and facts are involved in all the cases. 2. The dispute in Writ Petition No, 198/79 relates to property bearing No, NW-611, measuring 1l kanals, situated at Saidpur Road, Rawalpindi, The petitioner has been carrying on his business in this property under the name and style of "New Ajaibat-i-Sang", manufacturing sanitary goods. The property is owned by respondent No, 3, Mushtaq Pervaiz Khan and the petitioner has been occupying the same admittedly as tenant. Since the petitioner was allegedly threatened with forcible ejectment on the part of the landlord as a result of which, according to him, water and electricity connections were disconnected at one stage; he filed a civil suit for injunction, on 2nd January 1979, against the landlord restraining him from ejecting him in an illegal manner. Before that he had submitted an application to the D. S. P., Rawalpindi on 1st January, 1979 alleging that he feared forcible ejectment from the property in question at the hands of the landlord. 3. It is admitted on record that respondent No, 3, Mushtaq Pervaiz, submitted an application to the S. M. L. A., Rawalpindi on 30th December, 1978, copy Annexure 'B' attached with the reply of respondents Nos. 1 and 2, stating that the property in question had been leased out to the petitioner on monthly rent of Rs, 1,000. Respondent No, 3 thereafter left for England while the petitioner promised with him that amount of rent would be sent to him there by Money Order and if it was not possible, then whole of the amount would be paid to him on his return from England. Respondent No, 3 further alleged in the application that on his return when he demanded the payment of the arrears of rent, the petitioner refused to pay him the same; rather misbehaved with him and threatened him with dire consequences if he demanded payment of the rent again. He
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further alleged that the petitioner had neither paid the rent nor vacated the premises. At the end of the application, it was prayed that arrears of rent may be got paid from the petitioner. 4. It is also admitted by the parties that on this application respondent No, 1, Yar Gul, summoned the petitioner for 3rd January, 1979. It may be mentioned here that Mushtaq Pervaiz is son of Captain (Rtd.) Dawood Khan. According to the petitioner, on his appearance on the aforesaid date before respondents Nos. 1 and 2, respondent No, 1 decided to proceed with the matter. He was told that since, the matter was purely of civil nature, therefore, he had no jurisdiction under any Martial Law Regulation. Order or any instruction issued by the C. M. L. A. Or any other competent Martial Law Authority. He was also shown certified copy of the interim injunction order issued on 2nd January, 1979 restraining dispossession of the petitioner from the property in question. He was also shown copy of the notice in the stay application issued to the landlord for 9th January, 1979. According to the petitioner, no respect, whatsoever, was shown to the order so passed by the civil Court and respondent No, 1 directed the petitioner to vacate the premises and hand over its possession to respondent No, 3. The agreement Annexure B/1, alleged to have been executed between the parties was per force, according to the petitioner, and was got signed by him acknowledging that the petitioner would vacate the premises in question on the date of execution of the agreement and the show room on 6th January, 1979. It is admitted in the agreement in question that it was executed as a consequence of the application filed by respondent No, 3. The Deed Writer has also made endorsement at the end of the agreement that it was written in the office of the Martial Law Headquarters, Rawalpindi. The stamp paper for the purpose of execution of the agreement was admittedly purchased by respondent No, 3 on the date when it was executed. 5. There is no mention, whatsoever, in the parawise comments made by the respondents that on the appearance of the petitioner before them there was some discussion with regard to the matter in question between the parties. It has been stated in the comments that the petitioner was summoned in routine on the application of respondent No, 3. Both the parties explained that they had agreed on a compromise and wanted to reduce its terms and conditions into writing. It has been admitted in the comments that the stamp paper was purchased on the date when the agreement was executed. As to the fact whether the stamp paper was brought by respondent No, 3 alongwith him when the petitioner appeared before the respondents, it has been stated that it can be ascertained from him and by examining the endorsement made by the Stamp Vendor at the back of the stamp. It has been stated that the stamp paper was brought by respondent No, 3 alongwith him, which would mean that the parties had already reached compromise and wanted to reduce its terms and conditions into writing in the office of the Martial Law Headquarters. It has been denied by respondents 1 and 2 that any undue pressure or coercion was used against the petitioner to execute and sign the agreement in question. According to them, it was a voluntary act on the part of the petitioner and as such question of passing any order on the part of the respondents directing the petitioner to vacate the premises did not arise. 6. However, a different stand has been taken by respondents 3 to 5 in their written statement filed in the Court on 8th February 1979. It has been stated that the stamp paper was obtained by respondent No, 3 after the petitioner had agreed to compromise whereas, as mentioned above, the petitioner after his appearance before respondents 1 and 2 was never persuaded by them to come to terms with respondent No, 3 as both of them had already arrived at some agreement. According to the petitioner, since the agreement in question is the result of duress and undue influence on the part of respondents 1 and. 2, who otherwise had no jurisdiction to deal with the matter therefore, it has no validity in the eye of law and any superstructure based thereon would fall to the ground. 7. After the alleged execution of the agreement the petitioner again approached the civil Court on 4th January 1979 by means of a civil suit for permanent injunction restraining the respondents to dispossess the plaintiff from the property in question on the basis of the agreement alleged to
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have been executed between the parties on 3rd January, 1979. A long-with the suit an application for grant of ad interim injunction was filed. Notice was issued in the suit while in the stay application notice was issued for 9th January, 1979. Possession of the petitioner over the property in question was maintained till then. The petitioner, according to him, protested against the forcible execution of the agreement by sending telegram to the higher authorities, but to no avail. According to him, he was forcibly dispossessed from the premises in question immediately thereafter by respondent No, 3 with the assistance of respondents 4 to 6. Respondent No, 6 is S.H.O., Police Station 'B' Division, Rawalpindi. 8. Writ Petition No, 1647/79 relates to property bearing No, NW-614, Saidpur Road, Rawalpindi owned by respondent No, 3, Masood Khan son of Capt. Dawood Khan. It was in occupation of the petitioner as tenant, who was carrying on his business therein under the name and style of "New Ajaibat-i- Sang". It has been alleged that after the petitioner was dispossessed from the property bearing No, NW-611 on 5th January, 1979, he was forcibly dispossessed from the property in dispute subject- matter of Writ Petition No, 1647/79 on the night between 10th/11th January, 1979. It has been alleged that respondent No, 3, the landlord of the property in dispute got encouraged on account of the eviction of the petitioner from the property bearing No, NW-611 under the directions of respondents I and 2 and that was why he was forcibly ejected therefrom by him. 9. Writ Petition No, 1094/79 has been filed against the S.H.O., Police Station, 'IV Division, Rawalpindi praying for a direction to him to register case at the instance of the petitioner with regard to his forcible and illegal ejectment from both the premises mentioned above. 10. It has been argued by the learned counsel for respondents Nos. 3 to 5 that the agreement in question' was executed by the petitioner voluntarily, of his free will and under no pressure of respondents Nos. 1 and 2, the Martial Law Authorities, and as such he has no locus standi to resile therefrom and challenge its validity in the present proceedings. If he is aggrieved on account of its execution, then he has alternate remedy by means of a civil suit where the validity or otherwise of the document in question can be thrashed out satisfactorily. It is contended that the petitioner has not disclosed in his petition as well as in his replication to the written statement as to when he was actually dispossessed, meaning thereby that he delivered the possession to respondent No, 3 the landlord, on the basis of the agreement voluntarily. He in this behalf has referred to the order of the civil Court dated 9th January, 1979, copy Annex. `C/1', to the effect that since the petitioner had not been evicted, therefore, his possession might not be disturbed meanwhile. It is contended that since the petitioner himself has filed two civil suits one on 2nd January, 1979, for grant of permanent injunction and the other on 4tb January 1979 for declaration and injunction challenging the validity of the agreement in question, against respondents Nos. 3 to 5, therefore he is now estopped to invoke the extraordinary jurisdiction of this Court under Article 199 of the Constitution ; the validity of a document cannot be challenged or otherwise decided in the present proceedings ; the contractual obligation, if any, cannot be enforced through the proceedings under Article 199 of the Constitution ; and the petitioner, if at all, has been ejected by respondent No, 3 and no act of any State functionary being involved, Writ Petition 198/79 is not maintainable. It has been submitted that the question--whether the agreement was the result of force or undue influence involves evidence, probe and inquiry which cannot be held in the present proceedings. 11. So far as Writ Petition 1.647/79 is concerned, it has been argued by the learned counsel for the respondents that the property in question therein being different one from that subject-matter of Writ Petition No, 198/79 is not maintainable. No Martial Law Authority is alleged to have passed any order for the ejectment of the petitioner from the property bearing No, NW-614, which is owned by Masood Khan, respondent No, 3. It is further submitted that no direction is required to be made in Writ Petition No, 1094/79 to the respondent for registration of case with regard to alleged
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dispossession of the petitioner as no further inquiry and probe is needed and whatever evidence has to be produced is already in possession of the petitioner. 12. Mr. Rashid Aziz Khan,' learned Assistant Advocate-General, while appearing on behalf of respondents 1 and 2, has stated that entertainment of the application submitted by respondent No, 3 against the petitioner was not within the jurisdiction of respondents I and 2. He has however, submitted that since the agreement was executed by the petitioner voluntarily, therefore, he has no locus standi to approach this Court challenging its validity. 13. The first civil suit was filed for permanent injunction restraining the respondents from dispossessing the petitioner from property invading No, NW-611. Admittedly relief by way of interim injunction was granted in favour of the petitioner by the learned Civil Judge on 2nd January, 1979. Since the petitioner was dispossessed after the execution of the agreement in question, therefore, he made an application before the learned Civil Judge for permission to withdraw the suit having become infructuous. Necessary order in this behalf was passed on 7th June, 1979, certified copy of which has been placed on the file dismissing the suit having been withdrawn. The second suit filed on 4th January, 1979, also met the same fate. Similar order was passed by the learned Civil Judge on 7th June, 1979 dismissing the suit having been withdrawn. It is admitted on record that at the time when the writ petition was it filed on 13th January, 1979 the petitioner had been dispossessed from the premises in question before that. As such both the suits had virtually become infructuous because of fife nature of the prayer for grant of permanent injunction made therein, which could not be granted after the dispossession. They, however, remained pending without any fruitful proceedings and were ultimately withdrawn on 7th June, 1979. 14. The learned counsel for respondents 3 to 5 has relied upon Dr. M. 0. Ghani Vice-Chancellor, University. Of Dacca v. Dr. A. N. Mahmud and others (1), Muhammad Idrish v. East Pakistan Timber Merchants Group (2), Ashraf Ali Akanda v. Abdul Awan, Deputy Magistrate, Netrokona Camp and others (3) and Mukhtar Ali and others v. Settlement Commissioner (Land), Sargodha and others (4), in order to show that since remedy by way of civil suits has been resorted to by the petitioner, therefore, he cannot invoke the extraordinary jurisdiction of this Court under Article 199 of the Constitution, 15. In almost all the cases relied upon by the learned counsel, civil litigation at the time of decision of the petitions invoking extraordinary jurisdiction of the superior Courts were pending. In 1966 SC respondent A. N. Mahmud felt aggrieved by the appointment of his junior at a higher salary than his own. This appointment was made by a resolution dated 16th October, 1965 passed by the syndicate of the University , of Dacca. After the syndicate's resolution, the case was referred to the Selection Committee of the University for regularization of the appointment. The validity of this decision of the Syndicate was challenged through a civil suit by Dr. Mahmud on 6th November 1965 for declaration and for an injunction restraining the University and its authorities from acting on the resolution. The meeting of the Syndicate was again held on 18th December, 1965 and the matter was placed before it. The Syndicate resolved to accept the recommendation made by the Selection Committee in favour of Dr. Hussain, junior of Dr. Mahmud. Instead of amending his civil suit already pending adjudication before the civil Court, Dr. Mahmud filed a petition under Article 98 of the then Constitution of Pakistan calling in question the resolution of the Syndicate passed on 18th December 1965. A Division Bench of the Dacca High Court declared the aforesaid resolution to be without lawful authority and of no legal effect. The matter ultimately came up before the Supreme Court and it was held that Dr. Mahmud could have asked for amendment of his suit pending in order to attack the vires of the resolution passed by the Syndicate on 18th December, 1965, as it furnished him with a fresh cause of action. It was held that this step would have obviated the necessity of recording the findings at the High Court level, such as could be deemed to have practically disposed of the suit pending in the Munsif's Court. The alternate remedy by agitation of
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the same question in his own suit being available to Dr. Mahmud, the learned Judges of the High Court should have declined to entertain the petition under Article 98 of the then Constitution calling in question the second resolution of the Syndicate. 16. The same position obtained in PLD 1968 SC. The questions which were agitated before the Dacca High Court under Article 98 of the then Constitution were already pending decision in litigation before the Courts below. It was held by the Supreme Court while relying upon the aforesaid authority as contained in PLD 1966 SC that where it was apparent from the facts of a particular case that the same questions were pending decision in a civil litigation the High Court should not during the pendency of that litigation take upon itself to decide the same questions in its extraordinary jurisdiction. In such cases the parties should be left to pursue their litigation in the ordinary Courts and should not be allowed to short circuit them by a petition invoking extraordinary jurisdiction. (1) PLD 1966 SC 802- (2) PLD 1968 SC 412 (3) PLD 1968 Dacca 962 (4) 1975 SCMR 489 ' In that case, Registrar of Joint-Stock Companies East Pakistan on 20th September, 1966 had issued certain certificates regularizing the right of the section led by the appellant before the Supreme Court to represent the East Pakistan Timber Merchants Group. The High Court held that since litigation was already pending in the civil Court between the parties with regard to the points subject-matter of the certificates, therefore, the Registrar should have refrained from doing anything which might have caused prejudice to any of the parties to the litigation. This order was challenged before the Supreme Court, but the judgment passed by the High Court was maintained mainly on the ground that since the matter in question was pending adjudication before the lower Court, therefore, such decision should not have been made. 17. PLD 1968 Dacca pertains to a case of failure to honour contractual obligation arising out of an agreement. It has been held that the same could not be decided by the High Court in writ jurisdiction. In 1975 SCMR, similar position obtained as, was obtaining in the first two authorities. In that case the petitioners had already challenged the validity of the order of the Additional Settlement Commissioner in the civil Court-and the suit filed by them was still pending. It was held that they could not be allowed to agitate the same matter at another forum, namely the High Court in writ jurisdiction. 18. So far as PLD 1968 Dacca is concerned, the same is not applicable to the facts of the present case. It is the jurisdiction of respondents 1 and 2, who called the parties to be present on 3rd January, 1979 on the application moved by respondent No, 3, which is to be determined and whether the eviction of the petitioner was the result of the agreement in question brought into being at the instance of respondents 1 and 2, who had no jurisdiction to deal with the matter ? This aspect will be dealt with in detail later on. ' However, the other three authorities are also not applicable to the facts of the present case. In all the cases civil litigation was still pending when judgments for or against the parties were announced by the High Court or the Supreme Court in exercise of extraordinary jurisdiction. Such position does not obtain in the present case. As discussed above. The aforesaid authorities have laid down that during the pendency of civil litigation extraordinary jurisdiction vesting in the superior Courts may not be exercised. In the present case, both the civil suits having become infructuous were withdrawn on 7th June, 1979 and this fact has not been denied by the contesting respondents. That being the position, this Court is not debarred from deciding the matter agitated in the main case. 19. Further, if there is an error apparent on the face of record and the authority otherwise apparently lacks jurisdiction, then extraordinary jurisdiction should not be refused to be exercised irrespective of the fact A that civil litigation is pending between the parties. This view gains strength
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from Nawabzada Arshad Ali Khan v. Deputy Settlement Commissioner, Circle I, Lahore (Wand Kala Mia Sahib v. Province of East Pakistan and others (2). In the latter case civil litigation was pending between the parties with regard to title of the land in question while irrespective of that (1) PLD 1962 Lab. 70$ (2) PLD 1963 Dacca 636 the Joint Collector, Nawakhali served a notice upon the petitioner before the High Court to show cause as to why the compensation should not be assessed against him under section 3 of Ordinance XIX of 1960. This order was challenged before the High Court being mala fide and colourable to prejudice the proceedings pending in the civil Court. It was held that since the petitioner had a long standing bona fide dispute in the civil Court with regard to the land covered by the order of the Joint Collector, therefore, the impugned order passed by him was mala fide and colourable in order to adversely affect the civil litigation. The relief prayed for under Article 98 of the then Constitution was granted. 21. As such, the objection raised by the learned counsel for the respondents that since the petitioner has already approached, the civil Court by filing civil suits and has availed of the alternate remedy pales into insignificance. 22. Copy of the application,- which was submitted by respondent No,. 3 before the Martial Law Authority at Rawalpindi, has been appended by respondents 1 and 2 alongwith their parawise comments. Correctness of the same has not been denied by respondent No, 3. As mentioned above, respondent No, 3 prayed the Martial Law Authority for recovery of the arrears of rent from the petitioner in relation to property bearing No, N W-611. It is admitted by respondents 1 and 2 as well as respondent No, 3 that notice on this application was issued to the petitioner after the same was entertained and when the parties appeared before respondents 1 and 2 on 3rd January, 1979 the agreement in question was got executed from the petitioner. ' ' The first question which arises for consideration is whether respondents 1 and 2 had any jurisdiction even to entertain any such application. On being asked the learned Assistant Advocate-General appearing on their behalf has conceded that they had no jurisdiction under any Martial Law Regulation or Order or even under the instructions issued by the C. M. L. A. Or the Martial Law Administrator, Zone 'A' to entertain such application. It has also been admitted by the learned Assistant Advocate-General that according to the instructions issued by the C. M. L. A. No Martial Law Authority is authorised to deal with a civil matter. When respondents 1 and 2 had no jurisdiction, whatsoever, to deal with the application submitted by respondent No, 3, then the superstructure raised on any proceeding held by them would fall to the ground. 23. The plea raised by respondents I and 2 as well as other respondents that the petitioner and respondent No, 3 while appearing before the Martial Law Authorities agreed amongst themselves, without the intervention of the Martial Law Authorities, to execute the agreement in question has not been raised for the first time in this case. Such pleas have been raised in large number of cases already dealt with by this Court and always repelled in the given circumstances. In such cases in which Martial Law Authority concerned has no jurisdiction, this is the usual type of plea which has always been raised-that since the 'parties agreed before it for the execution of an agreement, therefore that being the result of voluntary act on their part its validity cannot be challenged. Such device has been evolved to overcome the question of jurisdiction, which- does not in any manner, vest in the Martial Law Authorities. 24. The agreement in question was executed on 3rd January, 1979 while, as mentioned above, the petitioner filed two civil suits against the respondents with regard to the property in question seeking the protection of law by way of grant of permanent injunction against his forcible eviction at the hands of respondent No, 3. Admittedly injunction in the civil suit was granted in his favour protecting his possession over the property in dispute. It is difficult to believe and the circumstances clearly show that there was no occasion for the petitioner to agree readily to execute the agreement in question, which was written by the scribe, as admitted by the
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respondents, in the premises of the Martial Law Headquarters when admittedly injunction had already been issued in his favour. If the parties had settled the dispute amongst themselves voluntarily, then there was no reason as to why such agreement could not be presented before the Civil Judge who was already seized of the matter. Apparently the agreement is the result of the proceedings initiated by respondent No, 3 before respondents Nos. 1 and 2, who had no jurisdiction to deal with the matter. It is so admitted even by…
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