1989 PLP 653 (CLC)

‑‑‑Ss.81 6 82‑‑Constitution of Pakistan (1973), Art. 199 Recovery of outstanding amount‑‑Notices under Ss. 81 & 82, Land Revenue Act, 1967 issued for recovery of specified amount‑‑Petitioner's Constitutional petition against factum of debt and issuing of notices‑ Allegations contained in Constitutional petition being questions of factum High Court cannot go into enquiring as to correctness or other‑wise of such allegations‑‑Petitioner had not placed on record any material to show, at least prima facie; that specified amount as claimed by respondent against petitioner, had been repaid by adjustment or otherwise‑‑‑Petitioner failed to produce copy of dissolution deed of partnership of which he was partner, when loan was granted and also failed to show the manner in which liability of the firm had been determined or adjusted Petitioner thug did not appear to have approached the Court with clean hands‑‑High Court in facts and circumstances of case did not feel inclined to exercise its Constitutional jurisdiction, which is equitable in nature, in favour of petitioner. Pakistan Burmah Shell Ltd. v. Assistant Commissioner (South), Karachi 1986 C L C 141; Muhammad Rauf v. Messrs Makran Fisheries Ltd. and another 1981 SCMR 631 and Salahuddin Khan v. Muhammad Nazir Siddiqui 1984 S C M R 583 rel. Bhajandas Tejwani for Petitioner. Date of hearing: 13th December, 1988. TANZIL-UR‑REHMAN, J.‑‑Request for urgent hearing is granted. (2) It is a Constitutional Petition filed under Article 199 of the Islamic Republic of Pakistan. The facts leading to the above petition, briefly stated, are that the petitioner was a partner of the firm M/s. Seven Star Cotton Ginners & Oil Mills, Ghotki, during kharif season of 1985. The said firm took some loan from respondent No.l (National Bank of Pakistan) on certain terms and conditions, which according to the petitioner was fully paid by the firm to the said Bank. Later on the said firm in or about 1986 was dissolved. It appears that the said amount having not been paid the respondent No.2 approached the respondent No.l Recovery Mukhtiarkar/Assistant Collector Grade‑II, National Bank of Pakistan Zonal Office, Sukkur who issued a notice under section 81 of the Land Revenue Act, 1967. Another notice under section 82 was thereafter issued by the respondent No.l which also mentioned the above issuance of notice under section 81 and the petitioner was called upon to deposit a sum of Rs.23,57,880 which are outstanding against the firm. The notice was, however, issued to the petitioner, he being a partner at the relevant time. Learned counsel for the petitioner submits that no notice under section 81 of the Land Revenue Act was served on the petitioner. Learned counsel further submit the did not take any advance from respondent No.2. It is further submitted by him that some fraud has taken place in the Bank by producing some fictitious borrowers and forged signatures, which fact the officials of the Bank respondent want to conceal. The claim of the respondent is, therefore, bogus. We are afraid, the petition contains several allegations, which are questions of fact and this Court exercising its jurisdiction cannot go into enquiring the correctness of the same. or otherwise. This Court cannot also hold an enquiry as to the fact whether notice under section 81 of the Land Revenue Act was also served on the petitioner yr not. The petitioner has also not placed on record and material to show, at least prima facie, that the amount of Rs.23,57,880 as claimed by respondent against the petitioner as partner of the said firm or any other amount of loan as advanced to the petitioner has been repaid by adjustment or otherwise, as alleged. Even the copy of dissolution deed of the partnership has not been filed or produced by the counsel during hearing when asked for by us to, see the manner in which the liability of the firm had been determined or adjusted. The counsel was also unable to tell us if the fact of l such dissolution deed was communicated to the respondent‑bank by sending a copy thereof. The petitioner does not appear to have approached this Court with clean hand. Counsel lastly submits that the issuance of the notice under section 82 of the Land Revenue Act is against the mandatory provisions of law as the amount allegedly due against the petitioner as partner of the firm has not been determined by any Court of law. As regards the legal position, we are aware that there are certain decisions of our own High Court (including Pakistan Burmah Shell Ltd. v. Assistant Commissioner (South) Karachi (1986 C L C 141) by a Division Bench of this Court of which one of us, namely Tanzil‑ur‑Rehman, J. was a member) that the proceedings under 81, 82, and 83 cannot be resorted unless the amount is determined a proper authority but we are equally conscious of the fact that the Constitutional jurisdiction under Article 199 is equitable in nature and the petitioner cannot claim the relief as a matter of right. For this view, we are supported by the decision of the honourable Supreme Court in Muhamm:id Rauf v . Messrs Makran Fisheries Ltd. and another (1981 S C MI R 631) wherein it was observed that "Additionally, this is not an appeal by right, but a petition by special leave, which has arisen out of a writ petition. That is very important because the remedy of a writ petition is not available to a person, who has come with unclean hands to the Court, and it would be an under statement to say that the petitioner had come with unclean hands to the Court. Therefore, we venture to think, it would have been better :f the writ petition had been dismissed on this short ground that the discretionary remedy of a writ petition was not available to a person, who had approached the Court with unclean hands. "(P.635). We may also refer to Salah-ud-din Khan v. Mohammad Nazir Siddiqui (1984 SCMR 583) wherein the Honourable Supreme Court in spite of holding the judgment of the Lahore High Court in allowing the Constitutional Petition as erroneous in law, observed that they were "not inclined to exercise discretionary jurisdiction of granting leave to appeal to the petitioner," in the facts and circumstances of that case. In the facts and circumstances of the case, we do not feel inclined to exercise our writ jurisdiction which is equitable in nature. The petition is, therefore, dismissed. The petitioner may, however, seek remedy, which may be available to him under the law. Before, parting with the matter, we would like to add that the learned counsel for the petitioner was enquired, before signing this order, if the petitioner was ready to furnish surety in the sum of Rs.23,57,880 allegedly due against him. His reply was in the negative.

3. The application for stay of the operation of the notice has become infructuous and dismissed. A . A / T‑46/ K Petition dismissed.