1996 PLP 244 (MLD)

2. Briefly the facts of the case are that the petitioner has set up an architectural and engineering consultancy service and has acquired standing and reputation in professional circles. Respondent corporation has acknowledged on record that the services rendered by the petitioner and his firm were commendable. Reliance has been placed on a certificate dated 3‑11‑1994 issued on behalf' of the respondent Corporation in appreciation of the services rendered by the petitioner. Respondent Corporation had appointed the petitioner to give consultancy services in relation to all construction projects undertaken by it. Initially, terms and conditions on which services were to be provided by the petitioner were conveyed by him which were accepted.

3. The petitioner moved an application under Order VI, rule 17, C.P.C. seeking permission to amend the aforementioned writ petition by permitting, Director, F.IA. to be impleaded as respondent No.7. As already the Court vide its order, dated 1‑10‑1995 had directed the Director, F.IA., Lahore to appear in person before this Court in view of the peculiar facts of the case; the Director, F.IA. being present in Court; the learned counsel for the respondents have no objection to implead Director, F.IA. as respondent No.7 and he has been added in the writ petition accordingly.

4. The learned counsel for the respondents at the very outset raised preliminary objection that the writ petition is not maintainable as the other alternative adequate remedies are available to the petitioner, which have not been availed by him; being a case of contractual liabilities; the petitioner must first exhaust those available remedies.

5. I have heard learned counsel for the petitioner as well as for the respondents at length and have gone through the relevant record with their able assistance.

6. Admittedly, the petitioner has set up an architectural and engineering consultancy service and has been appointed by the respondents Corporation to give consultancy service in relation to its construction projects undertaken by it. The respondent No.2 contractor gave an undertaking to the petitioner that he would abide by the decision, drawings, details and directions received from the petitioner in his capacity as consultant for the project; a formal document‑ was executed on 26‑6‑1994 between the respondent Corporation and the petitioner in relation to all construction work to be carried out within the territorial limits of Faisalabad Region.

7. It is well‑settled principle of law that one of the conditions for grant of relief in which jurisdiction of the High Court is that the petitioner before it should not have any alternate remedy. The opening words of Article 199 of the Constitution are re‑produced for ready reference as under:‑‑‑ "199.‑‑‑(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,‑‑‑."

8. The learned counsel for the petitioner conceded that while filing the writ petition, the petitioner had no personal grievance except to save the public exchequer and to fulfil the contractual liabilities as laid down in the agreement.

9. No doubt, there is a written agreement dated 26‑6‑1994 between the respondent Corporation and the petitioner and certain services are to be provided by the petitioner under the agreement. It is also settled law that where there is a breach of contract or agreement, the remedy did not lie in the writ jurisdiction as it was observed by their Lordships in case Shamshad Ali Khan v. Commissioner, Lahore 1969 SCMR

122. Similarly, their Lordships in case M/s. Momin Motor Company v. The Regional Transport Authority, Dacca PLD 1962 SC 108 observed that contractual rights, if any, are not enforceable by recourse to writ jurisdiction.

10. In the instant case, the learned counsel conceded that the agreement provides an arbitration clause; according to which "if any dispute, reference or question shall at any time arise between the contractor and consultant, the same shall be referred to employer herein the sole authority to decide and his decision will be final to be acceptable to both contractor and consultant". In the presence of terms and conditions for reference of dispute by the agreement itself, the disputed matters are to be resolved by the arbitrator; it is clear that the matter is not suitable for adjudication in the exercise of the writ jurisdiction of the High Court. It is open to the petitioner to go in for arbitration according to the agreement between the parties being an adequate alternative remedy which has not been availed by the petitioner. In this regard reliance can be placed on Al‑Mahmood Industries (Pak.) Limited v. The Trading Corporation of Pakistan Limited and another 1974 SCMR

51. The learned counsel for the petitioner referred to the false representation of respondent No.2 to the effect that his concern is a public private limited company; which in fact is not and tantamounts to fraud; further pointed‑out to the interpolated bills of quantities being fraudulently prepared; it is very clear from the arguments of learned counsel that the case of petitioner turns on allegation of fraud committed by the respondents; in such circumstances the proper remedy for the petitioner is to approach the Civil Court which is the proper forum and the remedy of writ petition is misconceived in view of the dictum laid down in case Abdul Haq and another v. Khan Muzrib Khan and others 1981 SCMR 691.

12. As already observed, the petitioner has other remedies like injunction C from Civil Court; suit for damages and suit for specific performance of the contract; the nature of controversy particularly legality and correctness of representation to be a public private limited company by respondent No.2; interpolated bills of quantities allegedly fraudulent and payments received by the respondent No.2 from respondent No.l in contravention to the manner prescribed in the documents dated 26‑6‑1994 are essentially factual controversies. It is consistent view of the Supreme Court that in cases where factual controversies are involved, Constitutional petition in the High Court is I not the proper remedy; reliance can safely be placed on case Muhammad Younus Khan and 12 others v. Government of N: W.F.P. through Secretary Forest and Agricultural, Peshawar and others PLD 1993 SC 618 wherein it has been observed that Constitutional petition is not the proper remedy.

13. The petitioner has also moved an application before the Director, Federal Investigating Agency lime‑lighting his grievances. This factor alone disentitles the petitioner to invoke the extraordinary Constitutional jurisdiction of this Court.

14. Resultantly, in all matters wherein enforcement of a civil contract or agreement is evolved, a writ in exercise of Constitutional jurisdiction cannot be issued. The writ petition stands disposed of accordingly.

15. In so far as conduct of respondent No.l is concerned, learned counsel for the petitioner has pointed out that status quo to be maintained was ordered by this Court vide order, dated 20‑9‑1995, during status quo which is still continuing and has not been vacated by this Court, Divisional Engineer, Development (Local) P.T.C., Faisalabad respondent No.l has issued termination notice of the services of the petitioner dated 28‑9‑1995 which prima facie tantamounts to contempt of Court. 15‑A. Issue notice to respondent No.l Divisional Engineer, Development (Local), Pakistan Telecommunication Corporation, Faisalabad to appear in person before this Court on 1‑11‑1995 and explain the reasons as to why he be not proceeded under the law in disobeying the order of this Court. AA./H‑162/L Order accordingly.