2009 PLP 1504 (YLR)

PERVAIZ INAYAT MALIK, J.--Briefly stated facts as those emerge out of this petition are that the petitioner was leased out play land Phase-II by respondent MDA within Shah Shamus Park Multan vide lease agreement dated 14-5-2007, the possession of the land for installation of new games was also handed over - to the petitioner for a period of twenty years. As per lease deed the respondent-MDA was entitled to receive its share from daily income of the games in terms of clause VII of the lease deed.

2. The petitioner in the meantime entered into negotiations with respondents Nos.4 to 6 with a view to form a partnership to run the business aforesaid and also intimated to MDA. The petitioner submitted an application as "Annex-B" of the writ petition which was received in the office of respondent-MDA on 19-4-2008. This application remained undecided.

3. The learned counsel for the petitioner vehemently contends that inspite of the fact that application "Annex B" is till date undecided and the partnership between the petitioner and private respondents Nos.4 to 6 was yet to be finalized. But without even hearing the petitioner, respondent-MDA proceeded to pass impugned order on 18-2-2009, arbitrarily declaring that respondents Nos.4 to 6 were the partners in the afore-stated business of the petitioner and the petitioner vide the same impugned order was to distribute the income in accordance with the ratio laid down therein. He prayed that same may be set aside being illegal unlawful and arbitrary. Adds that the petitioner has not yet given his consent and the matter has not been finalized between the petitioner and private respondents Nos.4 to

6. The impugned order has been passed with mala fide intention and for ulterior motives in connivance with the private respondents Nos.4 to 6 thus is without lawful authority and of no legal effect, therefore, liable to be set aside. Further contends that the dispute between the petitioner and private respondents Nos.4 to 6 is at the most of civil nature and MDA having leased out the rights to the petitioner cannot lawfully intervene in the business being run by him. The learned counsel for the petitioner submits that the so-called partnership deed submitted by the respondents Nos.4 to 6 to respondent-MDA and relied upon by it rather based upon while passing the impugned order, has already been challenged before the learned civil Court of competent jurisdiction, wherein status quo has also has been granted as far back as on 19-12-2008 which is annexed with this petition as "E" and that the impugned order is not only in excess of jurisdiction but also violative of order passed by the learned civil Court. Adds that the respondent M.D.A. was also formally informed about the pendency of suit and issuance of status quo order vide application "Annex D" which was diarized in the office of MDA on 19-2-2009.' In response to preliminary query from the Court as to how this petition is competent the learned counsel relied upon 1996 MLD 1972 Hajveri Associate case, 2007 SCMR 1240, Sargodha Textile Mill, 2007 SCMR 1357.

4. Conversely Mr. Tahir Mehmood, Advocate for respondents Nos.4 to 6 vehemently opposed the submissions made by the learned counsel for the petitioner and submits that disputed questions of facts are involved, therefore,' this Constitutional petition is not competent; 'Clause 20 of the lease agreement, an equally efficacious and alternate remedy of resorting to arbitrators is available, therefore, this petition is liable to be dismissed on this score alone; that the petitioner himself having approached the learned civil Court of competent jurisdiction regarding the same dispute has simultaneously invoked extraordinary constitutional jurisdiction of this Court. This conduct on the part of the petitioner is not appreciable and disentitles him to the relief sought for thus is not entitled to the equitable and discretionary relief in exercise of constitutional jurisdiction. The petitioner deliberately has not placed on record application dated 8-12-2007 submitted by him to the respondent-M.D.A. and even has not mentioned it during the course of arguments which is concealment of substantial facts.

5. Mr. Muhammad Amin Malik Advocate while adopting the arguments advanced on behalf of the private respondents submits that this petition in view of arbitration clause in the aforestated agreement and for the fact that civil suit filed by the petitioner involving same controversy is still pending this petition is not maintainable.

6. Arguments heard. Record perused.

7. Admittedly the writ petitioner himself has invoked the jurisdiction or civil Court regarding the same controversy against respondents which is still pending adjudication besides he himself filed partnership deed before the respondent-M.D.A. Admittedly the disputed questions of facts are involved which need thorough inquiry and this exercise cannot be under-taken in constitutional jurisdiction. The case law cited at bar, by the learned counsel for the petitioner is not of much help to him as those are distinguishable in view of peculiar facts of the case in hand. I, therefore, find no merits in this petition which is hereby dismissed as being not maintainable.

8. Without touching the merits of the case because it might not prejudice the case of either of the parties. This petition is dismissed on the sole point of being not maintainable. Leaving the parties to bear their own costs.

9. Before parting I may observe that the petitioner, however, shall be at liberty to raise as many as issues including the one raised in this Constitutional petition before the learned civil Court in accordance with law. H.B.T./S-82/L Petition dismissed.