2026 PLP 527 (CLC)

KHADIM HUSSAIN SOOMRO, J

Through this instant petition, the petitioner has impugned the judgment dated 03.04.2021 and Decree dated 05.04.2021 passed by learned 8th Additional District Judge Hyderabad whereby the summary suit under Order XXXVII Rules 1 and 2, C.P.C. for recovery of Rs. 1,100,000/-, filed by respondent No. 1 was decreed.

2. Brief facts of the case are that respondent No.1 (plaintiff) filed a summary suit on the grounds that the petitioner (defendant) offered to invest money in the business and assured him to return the amount with profit to him. Then respondent No.1 gave an amount of Rs.1,100,000/- (Rupees Eleven Lac only) to the petitioner for a period of three months. After due time, the petitioner did not make any payment to respondent No.1 nor return his principal amount to him. Respondent No.1 demanded the petitioner to return he amount on which the petitioner issued a cheque to him bearing cheque No.05625672, amounting to Rs. 11,00,000/- dated 01.12.2019 drawn at Dubai Islamic Bank, Latifabad Branch Hyderabad, Respondent No. 1 then deposited the said cheque in his account on the due date, but the same was dishonoured and returned from the bank along with a bank memo. due to insufficient balance; hence, respondent No.1 filed the summary suit with the following prayers:- "a To pass judgment and Decree in favour of the plaintiff and against the defendant for a sum of Rs. 11,00,000/-(Rupees Eleven Lac only). b. To direct the defendant to pay the principal amount of Rs. 11,00,000/- along with mesne profits at the bonk rate from the date of filing of this suit till the realization of the decreetal amount. c. Costs of the suit may be saddled upon the defendant. d. Any other relief which this Honourable Court deems fit, just and proper may also be awarded in favour of the plaintiff".

3. After admission of the suit process, were issued upon the petitioner, which was returned un-served from time to time, and finally, notice was published against the petitioner in the daily newspaper Express dated 21.11.2020. Consequently, the petitioner was made ex-parte vide order dated 21.01.2021. Thereafier, respondent. No.1 filed an affidavit in ex-parte proof evidence at Ex.02/A; he produced a Photostat copy of the cheque with a memo at Ex.2/B. He also examined his witness, namely Muhammad Ayoub al Ex.3. Then respondent No.1 closed his side for evidence it Ex.20. Thereafter, vide judgment dated 03.04.2021 and Decree dated 05.04.2021 learned trial court had decreed the summary suit. Consequently, Execution Application No. 41/2022 has also been allowed vide order dated 29.04.2023. Hence, this petition.

4. We have heard learned counsel for the petitioner and perused the record. The counsel for the petitioner submits that the Suit of respondent No.1 was based on false and baseless assertions. The counsel further submits that the Learned Additional District Judge Hyderabad did not appreciate the material facts on the record. The counsel lastly argued that the instant petition be converted into an appeal and fixed before the single bench of this court.

5. The petitioner has impugned judgment dated 03.04.2021 and Decree, dated 05.04.2021, passed in a summary Suit under Order XXXVII Rules 1 and 2, C.P.C., 1908, against which an appeal shall lie to the High Court in single bench, within thirty days of the passing of a judgment. The legal maxim 'Ubi jus ubi remedium" (wherever there is a right, there is a remedy). The maxim, as mentioned above, establishes a fundamental legal principle, affirming that an individual has a lawful entitlement to a concomitant recourse to initiate legal proceedings in a court unless the court's jurisdiction is precluded. According to the rule of jurisdictive prudence, the courts usually show the restrain with the directions to the parties first to take the recourse of an alternate and or equally effective mechanism and framework of remedy provided rather than to take departure to surpass or circumvent such remedy. Reliance can be placed in the case of the Government of Punjab through the Secretary, Schools Education Department, Lahore and others v. Abdur Rehman and others (2022 SCMR 25). The lawmakers' goal behind adopting these remedies is to constrain, issues falling within the jurisdiction of an appellate court to be solely adjudicated before that forum. Any endeavour to bypass or evade these designated forums is deemed impermissible, as mandated by the provisions of Article 199(1) of the Constitution. Where an adequate forum was available to the petitioner in the shape of an appeal was not exhausted, the principle of exhaustion of remedies imposes a restriction on a litigant, prohibiting them from seeking a remedy in the constitutional jurisdiction.

6. The exceptional jurisdiction conferred by Article 199 of the Constitution is fundamentally designed to provide a specific remedy when the illegality and impropriety of an action by an executive or other governmental authority can be demonstrated without protracted inquiry. The term "adequate remedy" denotes a remedy that is effective, attainable, accesible, advantageous, and expeditious. The petitioner has an effective remedy for filing an appeal, but the petitioner missed the bus without any reasonable and lawful excuse. The doctrine of exhaustion of remedies dictates that a litigant must not pursue a remedy in a different court or jurisdiction until the remedy prescribed by law has been fully exhausted. The writ jurisdiction of the High Court should not serve as the exclusive course or remedy for rectifying the wrongs, distress, and sufferings endured by a party, especially when an equally efficacious, alternative, and adequate remedy is available under the law. This principle is grounded in the notion that the litigant should not be inclined to bypass or disregard the provisions enshrined in the pertinent statute, which delineate specific procedures for challenging the impugned action. Proceedings under Article 199 of the Constitution are oriented towards enforcing a right rather than establishing a legal right. Therefore, the right asserted by the petitioner must not only be clear and complete but straightforward, and there must be an actual infringement of that right. In the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), the apex court has observed as follows: "

19. In the light of what has been discussed herein above and in view of the various complicated questions of facts availability of alternate/adequate remedies and premature stage, no interference should have been made by the learned High Court in exercise of its Constitution Jurisdiction as conferred upon it under Article 199-A read with section 561-A, Cr.P.C. The Intra Court Appeal has, however has rightly been rejected in view of the dictum laid down by this court in titled Nawazul Haq Chowhan v. State (2003 SCMR 1597)".

7. Reverting to the arguments of the counsel for the petitioner for the conversion of this petition into an appeal. We cannot convert it into an appeal due to a heavy stumbling block put by the laches. With writ jurisdiction, the court cannot act as an appellate court, reviewing the decision for accuracy and deciding on the correct course of action or order to be made. Reliance can be made on (AIR 1952 SC 192) Writ petitions are distinct from appeals, which are considered as a continuation of a trial/suit. The High Court does not have the authority to perform the duties of a Civil Court since its writ jurisdiction is distinct from its regular civil court powers. The only purpose of the High Court's jurisdiction is to rectify any mistake made by the lower body when exercising its jurisdiction. It differs from an action applied under the Code of Civil Procedure. The High Court is not a Court of fact and will not question disputed facts and re-appreciate evidence by itself. It cannot sit as a Court Appeal. The jurisdiction of the High Court is just remedial, not a cloak of appeal disguised to scrutinize every subject in depth. The High Court has no jurisdiction to consider the correctness of the decision, except in writ of certiorari, especially when illegality and irregularity are apparent in the impugned judgment, but it cannot go into either review of evidence or appreciating the same as in the writ jurisdiction the court cannot sit as a court of appeal.

8. The constitutional and appellate jurisdictions are completely distinct and different in nature, scope and consequences. The constitutional jurisdiction can be invoked to question the legality of laws, regulations, or governmental acts and enforcement of fundamental rights enshrined in the constitution, and it is to be filed when there is an infringement of constitutional rights, which is sometimes called a writ petition or a petition for a constitutional remedy under Article 199 of the Constitution Islamic Republic of Pakistan, 1973, challenging the validity of a statute or executive or tribunal orders on the grounds that it infringes upon the petitioner's constitutional rights. Conversely, an appeal is a procedural as well as substantive right which allows one party to file an appeal before a higher court to reconsider a judgement made by a lower court. It is submitted by an aggrieved party who disagrees and is dissatisfied with the judgment or an order made by a lower court, claiming that there were mistakes in the interpretation of facts, the application of law, or procedural irregularities. The case record established in the lower court is the usual basis for appeals, which often centres on whether any legal mistakes impacted the case's conclusion. Following a review by the High Court, the lower court's judgment may be upheld, overturned, or altered alternatively, the matter may be remanded to the lower court for additional proceedings. Finally, although both appeals and constitutional petitions deal with questions of law, the former seeks to evaluate mistakes committed by the lower court's judgment, and the latter seeks to challenge the legality of laws or governmental acts. Furthermore, appeals are normally lodged in appellate courts, whilst constitutional petitions are normally submitted in High Courts and the Supreme Court.

9. The petitioner has impugned judgment, and the Decree passed dated 03.04.2021 and 05.04.2021, respectively, However, the present petition was filed on 29.02.2024 after a lapse of more than two years and ten months, therefore, the petition is hopelessly barred by the doctrine of laches. There is no exception to the rule that the petition is not to be entertained if there is a delay in seeking the remedy of appeal beyond the period of limitation provided by the statute. The petitioner, delayed unreasonably in approaching this court in a writ petitions; the principle of laches of staleness applies to the present case. In such cases, the court may exercise its discretion to refuse relief based on the delayed filing of the constitutional petition. It is important to note that the application of laches depends on each case's specific circumstances and the court's discretion. The discretionary powers are to be exercised on the sound principle of justice and equity, which is missing in the present case.

10. The legal principle conveys that a count operating in equity, concerned with fairness and justice, will decline to provide assistance or remedy to legal claims that have become stale or inactive over time. If a petitioner has not promptly asserted their legal rights and acquieseed or remained passive for a significant duration, the court may deem the claim "stale." In such cases, the court may refuse to intervene or grant relief due to the petitioner's prolonged procrastination and lack of timely asserting their right. This principle highlights the importance of diligence and prompt legal action to seek equitable remedies. Reliance can be placed on Chapters 641-642, specifically Monographs 1181-82 of Halsbury's Laws of England, Third Edition, Volume 14, which deal with inches and read as under: "A Court of Equity refuses its aid to stale demands, where the plaintiff has slept upon his right and acquiesced for a great length of time."

11. The aims and objectives of Article 199 of the Constitution are to promote justice, safeguard rights, rectify any injustices or excessive exercise of jurisdiction by lower courts, and correct procedural illegality or irregularity that might have adversely affected a case. The petitioner has failed to bring his case within the criteria mentioned above. Consequently, the instant petition being misconceived is dismissed in limine along with pending applications. MQ/D-10/Sindh Petition dismissed.