1986 PLP 1 (CLC)

It is, therefore, respectfully prayed that the constitutional petition may kindly be dismissed." However, Muhammad Rahim died during pendency of the petition and his legal heirs, the respondents Nos. 1 to 12 were brought on the record. ,

4. We have heard Mr. Muhammad Zafar Advocate for the petitioners and Mr. Muhammad Karim the respondent No. 1 who also held the power‑of‑attorney for the remaining respondents No.2 to

12. The respondents Nos. 13 to 15 did not contest the petition.

5. The learned counsel for the petitioner in support of his petition raised the following grounds: (i) That except Nasrullah no other legal heirs of Muhammad Issa Jan was served with the notices or filed their written statements before the Assistant Commissioner and in their absence the case was referred to the Tribunal and decided. (ii) That only petitioner Nasrullah consented for reference of the dispute to Shariah and none of the other petitioners either were present or had consented to for its reference to Shariah. (iii) That the proceedings before the Tribunal and Assistant Commissioner Pishin were conducted in flagrant violation of the provisions of the Ordinance. (iv) That the claim of the respondents Nos. 1 to 12 was time‑barred.

6. On the other hand the respondent No.l while repudiating the contentions raised by the petitioners submitted that:‑ (i) The petitioner Nasrullah was .given a power‑of‑attorney on 3‑5‑1979 by other legal heirs of late Akhunzada Issa Jan hence they all were represented by him before the Tribunal as well as before Shariah. (ii) That the petitioners themselves had called for the procedure to be adopted by the Tribunal hence they were estopped to challenge it. (iii) That the unofficial respondents were in possession of the land and water hence the suit was competent.

7. To support hi$ first two contentions the learned counsel for the petitioners at the out set pointed out to the written statement Annexure 'B' signed and filed by petitioner Nasurllah Jan only and by none else. Besides he further submitted, that the application. dated 27‑2‑1980 requesting for reference of the dispute to Snariah also bore his signature and none of the other petitioner. His contention is belied by the power of‑attorney, dated 3‑5‑1979 executed by the petitioners Nos. 2 to 4 authorizing petitioner No.l to make appearance on their behalf. It has been produced by the respondent Muhammad Karim before this Court and it is kept on this file. On face of it the petitioners Mohibullah, Naqeebullah and Mujeebullah had authorized the petitioner No.l Nasrullah to make appearance on their' behalf before the Tribunal and other functionaries working under the Ordinance. Not only that but even through the same document, they had authorized him to appoint a Shariah also. Besides in his counter‑affidavit filed before this Court Khuda‑e‑Rahim had specifically everred that the petitioners Nos. 2 to 4 were represented before the Assistant Commissioner Pishin by petitioner No. 1 through a power‑of‑attorney which was available on record. It is why in the application for appointing Shariah on 27‑2‑1980 the petitioner Nasrullah signed it as attorney. This averment of the respondents Nos. 1 to 12 has not been denied by any rejoinder by the petitioners. Obviously it appears that the petitioners had wilfully concealed the factum of the execution of the power‑of‑attorney by the petitioners Nos 2 to 4 in favour of petitioner No.l from this Court. Hence the objections raised by the learned counsel for the petitioner that petitioners Nos. 2 to 4 were neither heard by the Assistant Commissioner nor by the Shariah is not only devoid of force but also an incorrect assertion hence it has no weight and repelled according.

8. In su pport of his third contention the learned counsel for the petitioners submitted that nder the provisions of the Ordinance the Tribunal after receiving the reference from the Assistant Commissioner had to strictly follow the procedure laid down in sections 4 and 8 of the Ordinance and then only returned its finding and there was no power vested in them to have referred the matter to an Arbitrator or Shariah Besides he submitted that once having sent the matter to Shariah the Tribunal had no jurisdiction to make the Award as rule of the Court. The contention raised by the learned counsel misconceived and devoid of force and repelled. In that respect, it may be pointed out that the Tribunal at their own request had referred the matter to the Arbitrator. Admittedly the course contrary to the provisions of the Ordinance was adopted by the Tribunal at the request of the petitioners who cannot raise such objection subsequently which objection by their own conduct and acquiescence .on the principles of estoppel are not sustainable in law.

9. In case of Abdul Wahab and others v. Habib Ali and others reported in P L D 1969 Lah. 365 the Lahore High Court has elaborately dealt with the proposition and relied upon the decisions of the Courts:‑ (i) A I R 1932 P C 251. (ii) A I R 1920 P C 139. (iii) A I R 1936 Mad. 856. (iv) A I R 1934 Lah. 176(2). (v) A I R 1941 Nag. 271. (vi) P L D 1958 S C 96.

10. On going through the above‑said authorities the High Court held. "that once a mode (procedure) is adopted by the High Court on the) request of. the parties, the decision given in pursuance of that mode should be given effect to; a necessary corollary of this rule will be: that the same parties are estopped from subsequently challenging that mode of decision in appeal. We also adhere to the same view taken by the Lahore High Court. In the instant case that the petitioners themselves had asked the Tribunal to refer the matter to shariah hence subsequently it cannot lie in their mouth to say that the Tribunal followed a procedure) contrary to the provisions of the law.

11. The last contention raised by the learned counsel for the petitioners is regarding filing of the suit beyond period of limitation. In our view the point of limitation in the instant case is a mixed question of law and facts. It obviously requires appreciation of evidence. Besides no such objection was raised by the petitioners before the Arbitrator. Hence we are not inclined to discuss or enter upon the evaluation of this issue at this stage in our constitutional jurisdiction.

12. As the petitioners had themselves requested for reference of the dispute to Shariah who recorded evidence of the witnesses and after hearing the parties returned the award, hence no exception could be taken to the decision of the Assistant Commissioner, dated 3‑7-1980 based on the Award.

13. Additionally, the petitioners had not come in clean hands before, the Court they have concealed the facts regarding the power‑of attorney executed by Mohibullah, Sadullah and Naqeebullah in favour of the petitioner Nasrullah from this Court, hence even otherwise they are not entitled to relief claimed in the petition.

14. For the reasons shown herein above we are not inclined to interfere with the impugned orders passed by the respondents Nos. 12, 13 and

14. In result the petition stands dismissed but with no order as to costs. A. A. Petition dismissed