1991 PLP 1755 (MLD)

(c) Constitution of Pakistan (1973)

Art.199

Constitutional jurisdiction

Suppression of materia facts in petition

Effect

Tenant did not bring to notice of High Court in his Constitutional petition that he had filed civil suit and that same was dismissed-- Tenant/petitioner, thus, did not approach the High Court with clean hands

In the exercise of equitable jurisdiction of High Court, suppression of material facts by itself was sufficient to non-suit petitioner and reject his Constitutional petition. (d) Administration of justice

Courts were not only under obligation to do justice between the parties according to law, but they were also required to do complete and full justice as early as possible

Undue delay under all circumstances should be avoided. Dr. A. Basit for Petitioner. Syed Farooq Hassan Naqvi for Respondents Nos.1 and

2. Rana M. Arshad Khan, AA.-G. with Haji M. Iqbal Vehniwal for Respondents Nos. 3 to

5. Dates of hearing: 20th, 24th. 27th, 31st March, 1st and 10th April, 1991. On 14-12-1985, an application was moved by the respondent/land ladies before the Tehsildar/A.C.-I. Gujranwala for settlement of rent dispute, through sanctioning a mutation against the petitioner/tenant in respect of piece of land measuring 129 kanals 2 marlas situate at village Gurjakh within the Corporation's limits of City of Gujranwala. It was mentioned in the application that the petitioner was a tenant-at-will under the respondents for the disputed land at a rent of Rs.400 per acre per year. It was prayed by the respondents for substantial increase in rent on the ground that in the neighbourhood of the land in dispute under almost similar circumstances, rate of rent was about Rs.5,000 per acre. The precise plea was that petitioner agreed to increase the rate of rent from Rs.400 to Rs.2,500 per acre in presence of the witnesses. However, he did not abide by hit commitment. The petitioner contested the application by submitting a detailed written statement. The allegations levelled in the application were specifically denied by the petitioner. The learned A.C.-I, framed three issues arising out of the pleadings of the parties. The first issue pertained to the very jurisdiction of the learned Assistant Collector I. The second and third issues related to the maintainability of the petition and the settlement of actual rate of rent respectively. Mian 7.afar Ali, P.W.1, and Mohsan Kamal P.W.2, were produced by the respondents in support of their case. In rebuttal, Mian Shaukat Ali D.W.1 and Muhammad Ali, D.W.2, were produced by the petitioner. Documentary evidence was also produced by the parties in support of their respective pleas. The learned A.C.I. determined Rs.1,000 per acre as rent of the land on 4-1-1087. This order was challenged by both the parties by filing appeals before the learned Assistant Commissioner/Collector, Gujranwala. The learned appellate forum accepted the appeal of the respondents, holding that the rate of rent so fixed was inadequate keeping in view like evidence of the case. The appeal of the petitioner was however, dismissed by the same consolidated order on 23-4-1987. It was noted that the petitioner did not challenge the jurisdiction of the learned A.C.I, and that he had been participating with a view to contest the proceedings before Tehsildar on merits. On remand, learned A.C.I, by his order, dated 19-4-1988, came to the conclusion that the rate of rent was unjustified and as such he concluded that the rate should be increased to Rs.3,000 per acre since Kharif, 1985. The parties challenged the aforesaid order by means of appeals which were heard and accepted. The matter was again remanded on 14-7-1988 for its fresh decision. The learned A.C./Collector rejected the appeal of the petitioner holding that the petitioner was reaping 3/4 crops a year and that he was prolonging the litigation with a view to pressurise the respondents for a compromise with him at his terms. He also held that the case came before him thrice for its determination on merits. Both the parties, dissatisfied with the appellate order filed appeals which were heard and disposed of by the learned Additional Commissioner (Revenue), on 8-6-1989. It was held by the learned Additional Commissioner (Revenue) that the rate of the lease money in the surrounding area was between Rs.3,000 to Rs.5,000 per acre. However, he held that the respondents were entitled to the increase from 1-11-1988 and not from 1985. A revision under section 84 of the Punjab Tenancy At, 1887 was instituted which was heard and dismissed by the learned Member, Board of Revenue with some modifications in the order of the lower Revenue Courts. Modification made on 26-2-1990 was that rate of rent shall be Rs.2,500 per acre per annum between Kharif 85 and 1-11-1988 and thereafter, the rate fixed was Rs.3,

000. The review petition was filed which too was rejected on 30-7-1990. The petitioner has challenged the propriety of these orders by filing this petition before this Court. Learned counsel contends that the learned Assistant Collector I had no jurisdiction to entertain and decide the application under law on subject. He stresses that once the rate of rent was fixed, it was not possible for the landladies to change it muchless increase it. In other words, the argument is that the amount of rent was fixed by means of an agreement and that the increase was only possible through another agreement in writing between the parties which was not the case in hand. Learned counsel for the contesting respondents opposes the petition. He states that point of jurisdiction was never raised and argued before the competent forum and as such it cannot be raised at such belated stage of the litigation. He submits that a finding of fact has been given on the basis of very reliable evidence and as such it cannot be set aside in exercise of Constitutional jurisdiction of this Court. He also maintains that the petitioner has suppressed a material fact inasmuch as he filed a civil suit on the controversy which was dismissed by the learned Civil Court. According to the learned counsel, this important fact was withheld by the petitioner with an ulterior motive. Learned Law Officer has also been heard by me. He supports the impugned orders. I have heard the learned counsel for the parties and the learned Lave Officer at considerable length. They have also submitted their arguments in writing which have been read by me with care. This is an unfortunate dispute between the parties who are closely related to each other being cousins inter se. The contention regarding jurisdiction of the Assistant Commissioner-I, was never seriously raised so as to attract the attention of the competent forums to decide it. No evidence was led on the controversy by the petitioner. Rather, he contested the case on merits by producing evidence before the Court. Precise argument of the learned counsel is that there is no law under which rent can be increased by any Court other than a Revenue Court, established and functioning under the Punjab Tenancy Act, 1887. No such point was ever raised by the petitioner before the respondent functionaries for their determination under the law. It cannot therefore, be allowed to be raised at such a stage when the dispute between the parties stands finally heard and decided on its merits on the basis of evidence of the parties. It is accordingly, repelled being without substance. It is really pathetic and alarming for this Court that the petitioner was not ready and willing to pay what was due from him to the respondent ladies who were linked with him in blood. It was consistently held on the basis of reliable and authentic evidence that rate of Rs.400 per acre for a land situate within the corporation limits of Gujranwala city near its bypass was grossly low. It was held that the land was irrigated with the water of a dirty channel apart from the water of a canal. It is said that the land was yielding 3/4 very valuable crops of vegetables and `shatalla' etc. at the very doorsteps of the markets of the city of Gujranwala. Needless to say that it may be generating a substantial income to the petitioner with a comparative small investment of money and labour. This fact is established on record on the basis of reliable evidence. In equity and law he was required to part with a portion of his income by increasing the rent himself. This is in evidence that there was an agreement entered into between the parties to increase the rate of rent. However, the petitioner did not abide by it. He continued postponing the increase in the rent on one pretext or the other to the entire detriment of the respondents. In Para. 6 of the arguments in writing, it is disclosed that the petitioner is ready to increase the rate of rent at his own conditions. This is of course height of inequity on his part. This amounts to approbation and reprobation on his part. In law and equity, he cannot be permitted to do so. He also knocked at the doors of the learned Civil Court to avoid the increase in rent. He failed there. He did not bring this important fact to the notice of this Court. For the first time, this fact was brought to the notice of the Court by the respondents. It is accordingly held that the petitioner did not approach this Court with clean hands. In the exercise of equitable jurisdiction of this Court the above-noted suppression of a material fact itself is sufficient to non-suit the petitioner and reject his petition. It appears that complete and full justice has been done by the revenue functionaries in the case although done after considerable delay. The Courts are not only under obligation to do justice between the parties according to law but they are also required to do complete and full justice as early as possible. It is unfortunate that this petty rent matter took about five years to conclude. It is high time that undue delay under all circumstances should be avoided. I am convinced that petitioner has wholly failed to make out a case for interference. The petition is misconceived on facts and law. It accordingly fails and is dismissed with costs throughout. AA./G-441/L Petition dismissed.