1986 PLP 99 (MLD)

TANZIL‑UR‑REHMAN, J.‑‑These are two petitions bearing Nos. D‑144 and 145 6f 1985 under Article 9 of the Provisional Constitution Order, 1981 of the Islamic Republic of Pakistan.

2. The facts leading to the above petitions are that since November, 1973 the petitioners claimed to be the tenant of respondents Nos.2 and 3 in respect of the three shops in question situate at Badar Market 11A, Commercial Area, Liaquatabad, Karachi. Earlier, in 1967 respondent No.1 was a tenant in respect of the said shops then belonging to the father of respondents Nos.2 and 3 who are the owners of the premises in question by inheritance. Respondent No.1 having alleged that he was forcibly dispossessed from the said shops by the father of respondents Nos.2 and 3 filed two Civil Suits bearing Nos.1711 and 1752 of 1967 under section, 9 of the Specific Relief Act, 1877 for possession of the said shops. The said suits were decreed. Against the said judgments and decree respondents Nos. 2 and 3 preferred two appeals bearing Nos.9 and 10 of 1970 which were allowed by the learned II‑Additional District Judge, Karachi, dismissing th6 suits filed by respondent No.1. Respondent No.1, therefore, filed Second Appeals bearing Nos.13 and 14 of 1972 in the High Court of Sind, Karachi. The said appeals were allowed by a learned Single Judge of this Court by his order, dated 21‑8‑1985 (wrongly stated in the petition as 21‑8‑1984) ‑whereby the judgments of the learned 11‑Additional District Judge, Karachi in First Appeals Nos. 9 and 10 of 1970 were reversed and the suits of respondent No.1 were decreed. As against the said judgments, respondents Nos.2 and 3 filed a review petition which was also dismissed by a learned Single Judge by his order, dated 6‑5‑1984. Civil Petitions bearing Nos. K‑352 and K‑353 of 1984 were ‑filed in the Supreme Court which were also dismissed by its order; dated 6‑11‑1984.

3. It appears that after the judgment passed in Second Appeals by a learned Single Judge of this Court respondent No.1 filed an execution application bearing No.12 of 1983 in the Court of IVth Senior Civil Judge, Karachi against respondents Nos. 2 and 3 when the petitioners filed an application in the executing Court alleging inter alia, that they came to know of the litigation between respondent No.1 (Decree-?holder) and respondents Nos.2 and 3 (Judgment‑debtors), which was heard by the learned Ex6cuting Court on 19‑5‑1984 and reheard on 8‑7‑1984 and dismissed the said applications. The petitioners thereafter filed civil revision applications which are heard by the learned II‑Additional District. Judge, Karachi who dismissed the same by his order, dated .29‑101984. The petitioners then filed Constitutional Petitions bearing Nos.889 and 890 of 1984 in this Court. A Division Bench of this Court passed a consent order and remanded the case to the Executing Court for rehearing the arguments of the petitioners who had not been reheard on 8‑7‑1984. The Executing Court, in compliance with the order, dated 3‑12‑1984 of this Court reheard the parties and again dismissed the applications of the petitioners by his order, dated 10‑2‑1985. The petitioners against the said order filed a Revision Application before the learned District Judge, who dismissed the same by his order, dated 13‑2‑1985. The petitioners have now filed these constitutional petitions.

4. We have heard Mr. Khalilur Rehman, learned counsel for the petitioners and Mr. Muhammad Sharif, learned counsel for respondents Nos.2 and 3 who supported the petitioners and Mr. A.K.M. Idrees learned counsel for respondent No.1 opposing the same.

5. Messrs Khalilur Rehman and Muhammad Sharif contended that the petitioners as legal tenants of respondents Nos.2 and 3 are fully protected by the provisions of Sind Rented Premises Ordinance, 1979 and are not liable to be dispossessed from the said shops in the execution proceedings arising out of the suits filed by respondent No.1. The protection is claimed under section 52 of the Transfer of Property Act; 1882 as amended by the. Transfer of Property and Registration (Sind Amendment) Act, 1939 as a result of which the decree has become in-execution against the petitioners having acquired tenancy rights during the pendency of the suits in which' they were not a party unless the notice of pendency of such suits was duly registered under section 18 of the Registration Act, which was also amended by virtue of Sind Act, 1939, as aforesaid. But, in the facts and circumstances of the case as will presently be noticed by us, we are not called upon to decide this plea as on other sufficient grounds we are not satisfied that it is a fit case in which this Court should exercise its extraordinary jurisdiction' vested in it by the Constitution. In this respect, we would like to quote a passage from the decision of the Supreme Court from Raunaq Ali's case P L D 1973 S C 236 which reads as under:‑-- "An order is the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it‑must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."

6. As it is evident from the facts on record that the litigation is pending since 2967. The parties reside in the same locality. It is unbelievable that the petitioners did come to know of the litigation only at the stage of execution proceedings commenced in or about 1983, for which they have also not said a word as to how they came to know of the said execution proceedings. Mr. Muhammad Sharif learned counsel for respondents Nos.2 and 3 who vehemently supported the petitioners, was also not able to any a word ‑in spite of our repeated demands, as to why he failed to make an application in the II‑Appeals in the High Court, notice of which was served on his clients as long back as 1973, to implead the petitioners as party to the said appeals. When we asked him if he had received Rs.16,000 and Rs.25,000 as goodwill from the petitioners he simply denied the same. When we further asked from him whether he could produce any tenancy agreement in writing executed by their father or themselves in favour of the petitioners he submitted that it was an oral tenancy and that they did not feel any necessity for it. We feel that the whole matter between the petitioners and respondents Nos.2 and 3 is collusive and the petitioners have been set up by respondents Nos.2 and 3 to forestall the execution proceedings against them. We are fortified in this view by the averments made by respondent No.1 in his counter‑affidavit, dated 10‑3‑1985 that the respondents Nos.2 and 3 are in possession of the shops in question but when they were served with a notice in execution proceedings they set up the petitioners as their fictitious tenants and have obtained the alleged power‑of‑attorney from them in favour of their henchmen and that the alleged attorney is being used as a tool for filing suits and petitions. It was further submitted by Mr. A.K.M. Idrees that till this day so copy of power70f‑attorney has been given to him nor he has ever seen the petitioners during these proceedings as also stated by respondent No.1 in para. 7 of his counter‑affidavit.

7. There is another aspect of the matter which warrants us not exercise our discretionary jurisdiction in the matter and that is the fact of pendency of Civil Suits Nos.4332 and 4343 of 1983 in the Civil Court as well as Suits Nos. 344 and 345 of 1984 in this Court. Mr. Khalilur Rehman though stated before us that he has filed an application for withdrawal of the suit pending in this Court but the fact remains that they are still pending.

8. There is yet another ground for not invoking the constitutional jurisdiction in the matter and that is the petitioners have not come in this Court with clean hands. They have not mentioned the fact of filing of the said four suits in a straightforward manner and passing of several orders in them. When we pointed out to them about the suppression of material facts in the petition, Mr. Khalilur Rehman simply replied that the impugned order passed by the II‑Additional District Judge, has itself taken note of it and white challenging his order he made a reference to it under ground 9 of the petition. But the fact remains that he had concealed the material facts of filing the suits in the Court of Civil Judge and then obtaining an interim injunction in the said suit and the same having been vacated by the learned Civil Judge; the fact of filing another suit in this Court and suppression the fact of filing the suits in the Civil Court and the order of injunction having ultimately been refused by the Civil Court have all been suppressed from mentioning in the Civil Suits filed in this Court as well as this petition. All these things go to show that the petitioners have not come to this Court with clean hands which disentitles them to any relief under the Constitutional Jurisdiction of this Court which is meant to advance the cause of justice and not to work as an injustice.

9. For the reasons discussed above, the petitions are dismissed with cost.

10. Before parting with the case, we would like to adopt, with utmost respect, the observations of the Honourable Supreme Court in Noor Muhammad v. Sarwar Khan and 2 others P L D 1985 S C 131, which read that:‑

"Other is an increasing tendency to file constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata), has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it without 'lawful authority' and certainly not illegal . . . . . We are of the view that the tendency to file such Constitutional Petitions tends to clog the superior Courts with frivolous litigation and causes unnecessary delays in the disposal of other cases and this tendency should, therefore, be curbed with a strong hand." . H . B . T .???????????????????????????????????????????????????????????????????????????????? Petitions dismissed.