2003 PLP 1144 (CLC)

IJAZ-UL-HASSAN, J.

Mst. Nasim Akhtar and others, petitioners, have filed instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, against Fazal Rabi and others respondents, with prayer that judgment/order dated 26-10-2002 of learned Additional District Judge, Swabi and judgment' order dated 4-11-2002 of learned Civil Judge, Swabi, be declared, as illegal, without jurisdiction and without lawful authority. It has also been prayed that the report of learned Commissioner dated 18-4-1999 be rejected and another Commission for partition of the suit property be ordered to be appointed by learned trial Court to make partition in accordance with law.

2. Shortly narrated the facts are that plaintiffs-respondents, were granted a preliminary decree for possession by partition, of the suit property by learned Civil Judge, Swabi, by means of his judgment and decree dated 14-7-1991. Later on decree-holders moved an application on 25-9-1991 for grant of final decree and during the proceedings, a local Commissioner was appointed who submitted his report dated 18-4-1999. The petitioner filed objection petition dated 3-7-1999 and evidence was recorded in this respect. Subsequently, the report of the local Commission was accepted vide order dated 4-11-2000 which was maintained by the Appellate Court on 26-10-2002.

3. Haji Muhammad Zahir Shah, Advocate, learned counsel for the petitioners, attacked the impugned judgment and decrees on a variety of, grounds and contended inter alia, that .the matter has been dealt with in al cursory and mechanical manner and without application of judicious mind which has materially prejudiced the rights of the petitioners. The learned counsel submitted that the learned Commissioner has not made the partition of suit property in accordance with law and Mst. Nasim Akhtar petitioner No.1 has been denied of her entitlement, although she was the owner of greater share in suit property per the 'Goshwara' placed on record. The learned counsel also submitted that Commissioner has recorded no evidence on the spot and the entire proceedings were conducted at the back of the petitioners. He further submitted that the Commissioner had taken the thumb-impression and signature on a white paper and the alleged statement recorded by him as a compromise was not made with the consent of the petitioners and they had given no such statement to the Commissioner. It is also complained that Commissioner has not divided the share of each owner on the spot and he has not given the front portion to each owner and the entire front of suit property has been given to legal heirs of Hamidullah Khan, one of the respondents.

4. We have heard at length the arguments of learned counsel for the petitioners and have also gone through the documents appended with the petition.

5. Discretionary relief under Constitutional jurisdiction can only be claimed by a person having a bona fide claim and coming to Court with clean hands for enforcement of a legal right obtained in a lawful manner. Jurisdiction possessed by the High Court in such matters, is discretionary which must, like all other judicial discretions be exercised in accordance with reason and on sound judicial principles.

6. In the instant case we find that a local Commissioner was appointed for partition of suit property. The Commissioner submitted his report dated 18-4-1999. The petitioners filed objection petition and evidence was recorded by the learned trial Court regarding the report of the Commission. The report was accepted vide order dated 4-11-2000. An appeal was filed there against which was converted into revision and dismissed through order dated 26-10-2002 which has caused annoyance to the petitioners. A perusal of the record would reveal that the learned Appellate Court dismissed the petition local Commission submitted his report according to the agreements of all the parties: The present appellants have also signed the said agreement. In the appeal it has been averred that the learned local Commission had taken their signatures on a blank (sic) has rightly rejected the objections of the appellants and has confirmed the report. "

7. The petitioners having accepted the report of the Commission through their joint statement recorded on 18-4-1999 and raising no objection regarding its authenticity, cannot be allowed to take a somersault and agitate that the report of the Commission was prepared in their absence without recording evidence and that their signatures had been obtained on a blank paper which was subsequently written in accordance with the wishes of the respondents. The learned counsel for the petitioners has not been able to point out any illegality or irregularity in the impugned judgments inviting our interference in exercise of our Constitutional jurisdiction. The petitioners have not been able to, successfully demonstrate the existence of circumstances justifying the acceptance of instant writ petition. The writ petition is not maintainable and the same is dismissed in limine. M.B.A./731/P Petition dismissed