1981SCMR945 (PLP)

Nemo for Respondents. Date of hearing : 18th November, 1979. DORAB PATEL, J.-The petitioners in these four review petitions were convicted by the Summary Military Court No. 13, Peshawar under M. L. R. 30 for adulteration of petrol and fined. They challenged their convictions in four separate writ petitions in the Peshawar High Court, and their main contentions before the High Court were that M. L. R. 30 was ultra vires of the powers of the Chief Martial Law Administrator and that the setting up of Military Courts was not justified by the Doctrine of Necessity laid down by this Court in Begum Nusrat Bhutto v. Chief of Army Staff and another (1). As these writ petitions were dismissed by the Peshawar High Court by its judgment dated 4-3-1979, all the petitioners filed petitions for leave in this Court which were heard and dismissed by us on 23-6-1979. Mr. Jahangir had appeared before us on 23-6-1979, and had argued on the law as well as on the facts in support of the petitions. He had repeated before us the legal pleas raised by the petitioners in the Peshawar High Court. He had also argued at length on the facts and submitted that the (1) P L D 1977 S C 657 convictions of the petitioners were illegal, because of the many infirmities listed by him in the proceedings before the Summary Military Court. We had examined the latter submission in detail with the assistance of the learned Advocate-General, who bad also produced before us- the relevant files and in refusing to grant leave we had observed in our order of 23-6-1979 :- "Therefore, it is very clear that the convictions of the petitioners are not only supported by evidence, but the prosecution had also proved beyond reasonable doubt that the petitioners were guilty of dealing in adulterated petrol. Therefore, the writ petition could have been dismissed on the short ground that the petitioners had not come with clean hands to the Court, and for the same. reason these are not fit cases for the grant of special leave." Mr. Jahangir has now filed these four review petitions against the dismissal of the four petitions for leave, and he said that he would press for a review only on one ground, which had reference to the last paragraph of our order dismissing the petitions for leave. This paragraph reads:- "However, as in the High Court, the petitioners have pressed the petition on the ground that they challenged the vices of Martial Law Regulation No. 30 and the learned counsel's submission was that the promulgation of this Order and the setting up of Summary Military Courts was not justified by the Doctrine of Necessity laid down by this Court in Begum Nusrat Bhutto v. Chief of Army Staff and another. The constitutional questions raised by this submission are no doubt of very great importance, but, we would leave them open for examination for an appropriate occasion and dismiss these petitions on the short ground that it is not a fit case for the grant of special leave. Accordingly, the petitions are dismissed." According to Mr. Jahangir, as we held that his arguments on questions of law raised questions "of very great importance," but decision not to decide these legal questions despite their "very great importance" was an error apparent in our judgment. But we have explained why we did not consider it necessary to examine these legal questions, and the reason given by us was that the petitioners had approached the High Court with unclean hands. Now, it is a settled principle of law that the discretionary reed of a writ petition may be refused to a petitioner, who has approached the Court with unclean hands: Therefore, we were surprised by learned counsel's submission, the more so, as the review was sought only on this ground. But, learned counsel's reply was that his submission was supported by a judgment of the Indian Supreme Court reported in Moran Mar Basellos Cathollcos and another v. most Rev. mar Poulose Athanaslus and others (1). Therefore, it is necessary to examine this judgment in some detail. The dispute in the case cited was about some Church property which was claimed by rival groups of Syrian Christians in the State of Travancore in India, and one of the issues raised by the appellants was whether a meeting called by the respondents had been validly called. The Travancore High Court had decided the case against the appellants without giving a finding on this issue, which was apparently of crucial importance to the case of the parties, therefore, the appellants had applied for a review of the High Court's judgment on the ground that the High Court had failed to decide an issue which was vital to the proper determination of the claims of the (1) AIR1954SC526 parties. However, as this review application was dismissed, the appellants filed a petition for leave in the Indian Supreme Court which was admitted and the appeal- of the appellants were allowed and the case was remanded to the Travancore High Court for hearing the review application of the appellants.. In allowing the appeal the learned Judges of the Indian Supreme Court observed at page 540:-- "But did all members attend, even if the defendants' party who had adopted Ex, AM be left out. It does not appear that either of the two majority. Judges of the High Court adverted to either of these aspects of the matter, namely, service of notice to all churches and competency of the persons who issued the notice of the Karing asserai meeting and in any case did not come to a definite finding on that question. .The majority judgments, therefore, are defective on the face of them in that they did not effectively deal with and determine an important issue i n the case on which depends the title of the plaintiffs and the maintainability of the suit. This, in our opinion, is certainly an error apparent on the face of the record." The judgment cited is of no relevance to the instant case for more reasons. than one. In the case cited, the learned Judges of the Travancore High Court had failed to examine the question raised by the appellants through inadvertence, but we had declined to grant leave on 23-6-1979 to examine the legal objections raised by Mr. Jahangir, because we were satisfied that the petitioners had no case on merits and had come to the High Court in. its constitutional jurisdiction with unclean hands. On the other hand the proceedings in the case cited arose out of a suit filed 'in a District Court, the principle, that .the discretionary relief of a writ petition is nqt available to a person, who has approached the Court with unclean hands. I 4as no relevance to a suit in the civil Courts. Therefore, the judgment cited is distinguishable on the facts and does not help the case of the petitioners. No other argument was advanced. The review petitions are without merit and are, therefore, dismissed. Petitions dismissed. .