1991 PLP 2367 (MLD)

Para. 25

Constitution of Pakistan (1973), Art.199

Constitutional jurisdiction, exercise of

Petitioners not coming to Court with clean hands-- Effect

Petitioners defended ejectment application on the ground of being co -sharers and alternately as mortgagees

Having failed on that score petitioners raised plea of fixed lease, which amounted to tortuous conduct on their part-- Constitutional jurisdiction could not be exercised in favour of a person who had come to Court with unclean hands and tortuous conduct. Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 SC 236 and Muhammad Ismail v. Abdul Rashid and 2 others 1983SCMR168 rel. Mian Ghulam Rasul for Petitioners. Writ Petitions Nos.5141 and 5142 of 1990, are being disposed of by a single order because both the petitions are by the tenants against the order of ejectment from tenancy against Ahmad Ali and others--landlords (herein referred to as respondents). Since these two petitions involve examination of the same and similar questions of law and facts and are directed against the same landlords respondents, these are being disposed of by this single order, placed on the file of Writ Petition No.5141 of 1990.

2. Muhammad Tufail, petitioner in Writ Petition No.5141 of 1990 and Muhammad Arshad in Writ Petition No.5142 of 1990, are tenants while Ahmad Ali and others are landlords (herein respondents). The respondents instituted an application for ejectment under Para.25 of M.L.R.115 against Muhammad Tufail and also filed another applications against Muhammad Arshad. In both the applications, it was pleaded that the respondents have committed default in the payment of rent of harvest from year Kharif, 1984 to 1985. The applications were resisted. It was pleaded in both the petitions that the relationship of landlord and tenant, did not exist between the parties. As a matter of fact, the petitioners were co-sharers and alternately mortgagees from the respondents. The learned Assistant Collector ordered the eviction by holding that the respondents were tenants and were defaulters. In both the applications the petitioners filed appeals before the Collector, which were dismissed on 6-5-1986. The Additional Commissioner, also dismissed the revision petitions lodged by these petitioners. The learned Member, Board of Revenue, also dismissed the revision petitions upholding the aforementioned order. This happened vide orders dated 25-6-1990. Hence these Constitution petitions.

3. The learned counsel for the petitioners, assailed the concurrent conclusion of the authorities below on the question of relationship of landlord and tenants on the ground that as a matter of fact, the petitioners were lessees on land for a fixed term under an agreement of lease dated 10-6-1978 and so the Assistant Collector-I, had no authority to take cognizance of the application under para. 25 of the M.L.R.

115. It was contended with full force that since the Assistant Collector had no authority to decide the dispute within the ambit of para.25 ibid, therefore, the entire proceedings on the application of respondents were coram non judice and so the order of the Assistant Collector, Collector the Additional Land Commissioner and the Member, Board of Revenue, were simply nullities. No other point was urged.

4. I have heard the arguments of the learned counsel and gone through the considered the aforementioned contentions, I am of the opinion that these points have no force. I have seen the written statement furnished by the petitioners, wherein they simply denied the relationship of landlord and tenants on the ground of being co-sharer or in the alternate a mortgagee. They did not raise the claim of fixed lease. As this point was not taken in written statement, no issue was framed between the parties and the parties have not led evidence either. It is a well-settled principle of law that no party can succeed on the basis of a fact which is not averred in the pleadings. This principle is built upon the Maxim `Secundum allegata et probata'. Therefore, I am quite clear that the petitioners are not entitled to raise this question in this Constitution petition for the first time.

5. The point taken for the first time in a Constitutional jurisdiction relates to factual controversy which requires adjudication on the basis of evidence. Such controversies are not permissible in this jurisdiction. On this ground also this petition is utterly devoid of any force.

6. Apart from what has been noted above, it is a well-known principle that Constitutional jurisdiction cannot be exercised in favour of a person who comes to the Court with unclean hands and tortuous conduct. Reference may be made to Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others P L D 1973 SC 236 and Muhammad Ismail v. Abdul Rashid and 2 others 1983 S C M R

168. It is apparent from the written statement that the petitioners defended the ejectment applications on the ground of being co-sharers and alternatively as mortgagees. Having failed in this plea now the petitioners have raised the plea of fixed lease. To my mind this amounts to a tortuous conduct on the part of the petitioners.

7. In the light of foregoing analysis, I do not find any merit in these petitions. These are accordingly dismissed in limine. A.A./M-3043/L Petitions dismissed.