2003 PLP 1543 (MLD)

PLD 1969 SC 167 (Ihsan Ali arid others' case), 1985 SCMR 153 (Javed Sheikh's case), 2002 SCMR 403 (Amir Khan and others' case), 2000 SCMR 677 (Bahadar Khan's case), 1998 SCMR 107 (Zulfiqar Ali's case), 1997 SCMR 1635 (Muhammad Ramzan's case), 2000 SCMR 1316 (Sheikh Zaman's case) and PLD 2002 SC 500 (N.D.F.C., Karachi's case). He further submits that respondent No.2 has decided the case in favour of the-respondent No. 1 on the basis of the decree secured by respondent No. 1 from the competent Civil Court. The same is still intact. Petitioner did not challenge the same by filing an application under section 12(2), C.P.C. or to challenge before any higher forum. He further submits that respondent No. 1 filed Writ Petition No. 18670 of 1997 , which was disposed of by this Court vide order dated 20-8-1997 with the observation that the petitioner if so advised, may move an application before respondent No.1 seeking necessary relief by way of transfer of sufficient number of plots in Johar Town Scheme. In case such application is filed, the same shall be decided on its own merits, after proper inquiry, within three months. Respondent No. 1 filed the contempt application which was disposed of by this Court vide order dated 13-4-1998 on the undertaking of the Legal Advisor of the petitioner who had placed on record copy of the order dated 6-11-1997 passed by the Provincial Ombudsman and submits that Mohtasib Aalah Punjab has already dealt with the grievance of the petitioner by observing that the LDA has undertaken to compensate the petitioner in M.A. Johar Town, Scheme for the satisfaction of her claim after obtaining her consent. Similar undertaking had been made by the learned Legal Advisor of the respondents before the Division Bench in I.C.A. No.571 of 1998.

4. I have given nay anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties: (i)???????? Respondent No. 1 filed reference before respondent No.2 under section 30 of the Land Acquisition Act, 1894. (ii)??????? Respondent No.2 accepted the reference vide order dated 25-2-1986 in the presence of the learned counsel for the parties which is to the following effect: Mr. Abdul Majeed, Advocate for Petitioner. Mr. Muhammad Ashraf Kumma, Advocate for L.D.A. (iii)?????? Petitioner filed Writ Petition No. 1818 of 1999 after considerable delay i.e. 13 years which was disposed of by this Court vide order dated 8-2-1999 with the observation that petitioner may file an application for setting aside the impugned order on the ground of misrepresentation or fraud. If such an application is filed, the same shall be decided on its own merits after proper inquiry within 3 months. (iv)?????? Respondent No.2 dismissed the application filed by the petitioner before respondent No.2 vide order dated 4-12-2000. (v)??????? Petitioner also concealed the material facts in the contents of writ petition which are as follows: (i)???????? Respondent No.1 filed Writ Petition No.18670 of 1997 which was disposed of by this Court in limine vide order dated 20-8-1997 and petitioner was directed to file an application before the petitioners and petitioners were directed to decide the same in accordance with law. (ii)??????? The petitioner failed to decide the application of respondent No. 1. (iii)?????? Respondent No.1 filed Criminal Original No.198-W of 1998 which was disposed of by this Court vide order dated 13-4-1998 on the statement of the Legal Advisor of the L.D.A. who had placed on record copy of order dated 6-11-1997 passed by the Provincial Ombudsman and stated that Mohtasib Punjab Aalah had already dealt with the grievance of the petitioner/present respondent No. 1 by observing that the L.D.A. had undertaken to compensate the petitioner in M.A. Johar Town Scheme for the satisfaction of her claim after obtaining her consent. (iv)?????? The legal Advisor of the L.D.A. had also made similar undertaking before the. Division Bench in I.C.A. No.571 of 1998. In case the aforesaid facts are put in juxtaposition then it is crystal clear that the petitioner concealed the material facts in the contents of the writ petition as the petitioner did not mention a single word about the filing of a writ petition and contempt by respondent No.1 before this Court qua the plot in question. It is settled principle of law that Constitutional remedy is a discretionary in character. Since the petitioner does not approach this Court with clean hands, therefore, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Hon'ble Supreme Court in the following judgments:-- 1969 SCMR 141 (Abdur Rasheed's case), 1983 SCMR 1996 (Ghulam Mustafa's case), 1993 SCMR 1462 (Rana Muhammad Arshad's case). It is pertinent to mention here that reference of respondent No. 1 was decided by respondent No.2 in presence of the learned counsel for the parties i.e. petitioners and respondent No. 1 vide order dated 25-2-1986. Petitioner filed Writ Petition No. 1818 of 1999 after considerable delay which was disposed of with the aforesaid observations. It is better and appropriate to reproduce the operative part of the impugned order to resolve the controversy between the parties: "The L.D.A. had challenged the ownership of the petitioner, Mst. Shamim Akhtar on the ground that the transfer of the land in her favour by the Settlement Department was without lawful authority. From perusal of record it reveals that after a detailed discussion and mainly on account of a Civil Court decree having been passed in her favour and she being in actual physical possession my learned predecessor was pleased to hold her entitled to claim compensation. If the documentary evidence produced by the L.D.A. before my learned predecessor had been misread it can be successfully argued that some fraud or misrepresenting had been practiced by the respondent. Misreading and non-reading of evidence cannot be quoted with fraud or misrepresentation and can hardly 'be treated as a ground for annulment of the impugned order in exercise of the jurisdiction vested in this Tribunal by virtue of section 12 (2) read with section 151, C.P.C. The Tribunal exercises jurisdiction of a Civil Court and all questions relating to title had to be resolved by the Tribunal and it cannot be successfully argued that the impugned order is without jurisdiction. Above all the applications under section 12(2) read with section 151, C.P.C. is hopelessly time ?barred."

5. The aforesaid operative part clearly reveals that the learned Tribunal had passed the order after applying its independent mind. Keeping in view, the observation of this Court's order dated 8-2-1999, word "merits" is defined in Black's Law Dictionary as follows:-- "As a legal term, refers to the strict legal rights of the parties. " Merits includes limitation prescribed under the law. The limitation is prescribed by the law to file an .application under section 12(2), C.P.C. IC is three years. In arriving to this conclusion I am fortified by the law laid down by the Hon'ble Supreme Court in Mst. Kubra Begum's case (1993 SCMR 2096). Even otherwise the contents of the application filed by the petitioner under section 12(2), C.P.C. does not fall within the para-meters prescribed in the said provisions of law. In view of what has been discussed above, this writ petition has do merits and the same is, dismissed. S.A.K./L-71/L???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.