1992 PLP 2084 (CLC)

Khizar Hayat Punian for Petitioner. Rana Taj Mahmood Khan for Respondent No.2. Date of hearing: 24th January, 1988. In this Constitutional petition, the petitioner has called in question the decree dated 27‑9‑1986 passed by respondent No.1 against the petitioner for the recovery of an amount of Rs.1,460.

2. The respondent No.2. who is the sister of the petitioner made an application to Assistant Collector Grade‑1, Alipur, District Muzaffargarh for recovery of her share from an amount of Rs.16,500 which was sale‑price of fruits of garden owned by respondent No.2 alongwith her rive brothers. Since the share of the respondent No.2 from the said amount of Rs.16,500 came to Rs.900 therefore, the matter was referred by Assistant Collector to respondent No.1 for decision. When the case was received by respondent No.1, the respondent No.2 made another application before respondent No.1 alleging therein that she was also entitled to recover an amount of Rs.500 as her share from income of the land for the year 1985 as such the total amount to which she was entitled was stated to be Rs.1,

400. Respondent No.1 commenced proceedings. The petitioner did not appear and he was proceeded against ex parte. After recording evidence of respondent No.2 the respondent No.1 passed impugned decree for the recovery of the said amount of Rs.1,460.

3. Learned counsel for the petitioner firstly argued that Assistant Collector Grade‑1, had the exclusive jurisdiction under section 77 (3) (k) of Punjab Tenancy Act, 1887 to try and dispose, of the application of respondent No.2 for recovery of her share of the sale proceeds of the fruits of the garden jointly owned by her with the petitioner therefore the matter could not be referred to respondent No.1 He further argued that even otherwise, the respondent No.1 could not entertain any case for the recovery of any amount beyond Rs.1,

000. He maintained that under section 3 (f) (b) of Conciliation Courts Ordinance, 1961, the claim of the respondent No.2 being beyond Rs.1,000 could only be adjudicated upon by respondent No.1 if the parties had consented to refer the same‑to respondent No.1. He further argued that under section 3 (1) (b) even the matters, pertaining to recovery of an amount less than Rs.1,000 could not be tried because the said money was not alleged to be due on contracts, receipts or other documents.

4. On the other hand learned counsel for the respondent Np.2 argued that the petitioner has not impleaded Assistant Collector Grade‑I who referred the matter to respondent No.1 as party in the writ petition and his order making reference to respondent No.1 having also not been challenged therefore, no objection can be raised to the proceedings and reference made by Assistant Collector Grade‑1, in this writ petition. He urged that the petitioner riled a revision petition against the impugned decree under section 12 (a) of the said Ordinance, which was withdrawn by him conditionally therefore, he having failed to avail of remedy provided to him under the law could not maintain the writ petition. It has been vehemently argued that withdrawal of the revision petition unconditionally by the petitioner amounts to his conceding the claim of the respondent No.2 and she being admittedly a sister and joint owner having share in the property, therefore, was otherwise entitled to the income of the garden and the land and should not be deprived of the same on mere technicalities and as such the conduct of the petitioner was such that decretion under Article 199 of the Constitution should not be exercised in his favour.

5. I have considered the arguments. The submissions made by the learned counsel for respondent No.2 have considerable force. Under section 12 (a) of the Ordinance, the petitioner could avail of the remedy of getting the impugned decree set aside on merits as well as the law. Learned counsel for the petitioner admitted that the said revision petition was withdrawn by the petitioner unconditionally. He has also not denied that respondent No.2 was the joint owner with the petitioner of the land as well as the garden and as such was entitled to the share of the produce of the both and the income derived from them. The petitioner in these circumstances, merely on technicalities wants to deprive the respondent No.2 of her share of the income of the property admittedly jointly owned by her. The conduct of the petitioner is not above board. The jurisdiction under Article 199 of the Constitution is certainly discretionary and the petitioner having withdrawn revision petition shall be deemed to have taken a decision not to avail of the remedies available to him under the law which conduct amounts to conceding the correctness of the claim of the respondent No.2. Since the petitioner has not come with clean hands and the other efficacious remedy having not been availed of which was available to the petitioner under the law therefore, I am not inclined to exercise my discretion under Article 199 of the Constitution to interfere with the impugned decree which is otherwise just and proper and no injustice had been done to the petitioner. The writ petition is hereby dismissed with no order as to costs. H.B.T./S‑149/L??????????????????????????????????????????????????????????????????????? Petition‑dismissed.