2001 PLP 1759 (YLR)

Ch. Muhammad Ismail v. Fazalzada, Civil Judge, Lahore PLD 1996 SC 246 ref. (e) Maxim

He who seeks equity must come with clean hands. Ch. Bashir Ahmad for Petitioner. Mian Qamar-uz-Zaman for Respondents. Brief facts out of which the present writ petition arises are that respondent No.2 issued a cheque in favour of the petitioner amounting to Rs.4,00,000 on 18-8-2000 which was drawn up from the National Bank of Pakistan, Ghari Shahu Branch, Lahore. The respondent No. 1 refused to encash the cheque and directed the petitioner to get an order from the competent Court. The petitioner being aggrieved filed this writ petition.

2. The learned counsel of the petitioner submits that it is the duty and obligation of the respondents to encash the cheque in question. Under the law the respondents are only authority to withhold the cheque in question of the following grounds:-- (1) Account holder respondent No.2 direct the respondent/bank not to encash the cheque in question. (2) Funds are not available in the account of the respondent No.2. (3) By the order of the competent Court. The learned counsel of the petitioner submits that none of the aforesaid ingredients are attracted in this case and the respondent No.1 has no authority not to encash the cheque in question. He further submits that as the competent Court did not cease the account of respondent No.2 by any order or by any Investigating Agency. He further submits that similar case filed by a 3rd person in the Civil Court against the respondent No.2 but the Civil Court did not issue any restraining order against the respondent No.

1. He has. summed up his arguments that action of the respondents is without lawful authority.

3. The learned counsel of the respondents submits that Account No.7834-5 of respondent No.2 is case property of 60/98 which was registered on 2-7-1998 under sections 420/468/471/469/470/176, P.P.C. at Police Station Ghari Shahu, Lahore. He further submits that the amount is also subject-matter of Civil suit titled Sh. Imtiaz Ahmad v. Intizar Ali etc. He further submits that respondent No.2 had issued a cheque amounting to Rs.2,00,000 in favour of the petitioner. The respondent did not encash the same. The petitioner being aggrieved filed a complaint before the Ombudsman who dismissed the complaint vide order, dated 28-7-2000 and held that the account of the respondent No.2 is a case property. He further submits that petitioner concealed the material facts from this Court particularly foregoing of 36 Judicial orders of his Lordship Mr. Justice Khalil-ur-Rehman Ramday and the pendency of the matter before the competent Court. He further submits that petitioner has to approach the trial Court where the criminal matter is pending for redressal of his grievance.

4. I have given my anxious consideration to the contentions of the learned counsel of the petitioner and perused the record myself.

5. It is admitted fact that petitioner filed a complaint in a similar circumstances before Ombudsman who dismissed his complaint vide order, dated 28-7-2000 and observed as under:-- "In view of the position stated by the Agency this Secretariat cannot investigate into the subject-matter of complaint. The complainant may approach the concerned Court for redressal of his grievance, if so advised. The investigation of the case is closed."

6. In this view of the matter, the petitioner has alternative remedy to approach the Federal Ombudsman, therefore, writ petition is not maintainable as per principle laid down in the case of Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC

109. The petitioner concealed the material facts from this Court. It is settled principle of law that he who seeks equity must come with clean hands. I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Honourable Supreme Court in the case of Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC

236. In case the contents of the writ petition and parawise comments are put in juxtaposition then this brings the case of the petitioner in the area of the disputed question of facts and this Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction as per principle laid down in the case of Muhammad Younus Khan and 12 others v. Government of N.W.F.P. 1993 SCMR

618. It is pertinent to mention here that the criminal and civil litigation qua the said account is pending before the competent Courts, therefore, the petitioner has alternative remedy to approach the competent Court, in this view of the matter writ petition is not maintainable as per principle laid down by the Honourable Supreme Court in the case of Ch. Muhammad Ismail v. Fazalzada Civil Judge, Lahore PLD 1996 SC 246.

7. In view of what has been discussed above, the writ petition has no merits and the same is dismissed. Q.M.H./M.A.K./M-672/L Petition dismissed.