1980 PLP 1491 (CLC)

12. Mr. Rashid Aziz Khan, learned Assistant Advocate-General, while appearing on behalf of respondents 1 and 2, has stated that entertainment of the application submitted by respondent No. 3 against the petitioner was not within the jurisdiction of respondents 1 and

2. He hat however, submitted that since the agreement was executed by the petitioner voluntarily, therefore, he has no locus standi to approach this Court challenging its validity.

13. The first civil suit was filed for permanent injunction restraining the respondents from dispossessing the petition from property hearing No. NW-611. Admittedly relief by way of interim injunction was granted in favour of the petitioner by the learned Civil Judge on 2nd January, 1979. Since the petitioner was dispossessed after the execution of the agreement in question, therefore, he made an application before the learned Civil Judge for permission to: withdraw the suit having become infructuous. Necessary order in this behalf was passed on 7th June, 1979 certified copy of which has been placed on the file dismissing the suit having been withdrawn. The second suit filed on 4th January, 1979, also met the same fate. Similar order was passed by the learned Civil Judge on 7th-June, 1979 dismissing the suit. having been withdrawn. It is admitted on record that at the time when the writ petition was filed on 13th January, 1979 the petitioner had been dispossessed from the premises in question before that. As such both the suits had virtually become infructuous because of the nature of the prayer for grant of permanent injunction made therein, which could not be granted after the dispossession. They, however, remained pending .without any fruitful proceedings and were ultimately withdrawn on 7th June, 1979.

14. The learned counsel for respondents 3 to 5 has relied upon Dr. M. O. Ghani Vice-Chancellor, University of Dacca v, Dr. A. N. Mahmud and others (P L D 1966 S C 802), Muhammad Idrish v. East Pakistan Timber Merchants Group (P L D 1968 S C 412), Ashraf Ali Akanda v. Abdul Awan, Deputy Magis trate, Netrokona Camp and others (P L D 1968 Dacca 962) and Mukhtar Ali and others. v. Settlement Commissioner (Land), Sargodha and others (1975 S C M R 489), in order to show that since remedy by way of civil suits has been resorted to by the petitioner, therefore, he cannot invoke the extraordinary jurisdiction of this Court under Article 199 of the Constitution.

15. In almost all the cases relied upon by the learned counsel, civil litigation at the time of decision of the petitions invoking extraordinary jurisdiction of the superior Courts were pending. In 1966 S C respon dent A. N. Mahmud felt aggrieved by the appointment of his junior at a higher salary than his own. This appointment was made by a resolution dated'16th October, 1965 passed by the syndicate of the University of Dacca. After the' syndicate's resolution, the case was referred to the Selection Committee of the University for regularization of the appoint ment. The validity of this decision of the Syndicate was challenged through a civil suit by Dr. Mahmud on 6th November 1965 for dec laration and for an injunction restraining the University and its authorities from acting on the resolution. The meeting of the Syndicate was again held on 18th December, 1965 and the matter was placed before it. The Syndicate resolved to accept the recommendation made by the Selection Committee in favour of Dr. Hussain, junior of Dr. Mahmud. Instead of amending his civil suit already pending adjudication before the civil Court, Dr. Mahmud filed a petition under Article 98 of the then Constitution of Pakistan calling in question the resolution of the Syndicate passed on 18th December 1965. A Division Bench of the Dacca High Court dec lared the aforesaid resolution to be without lawful authority and of no legal effect. The matter ultimately came up before the Supreme Court and it was held that Dr. Mahmud could have asked for amendment of his suit pending in order to attack the vires of the resolution passed by the Syndicate on 18th December, 1965, as it furnished him with a fresh cause of action. It was held that this step would have obviated the necessity of recording the findings at the High Court level, such as could be deemed to have practically disposed of the suit pending in the Munsif's Court. The alternate remedy by agitation of the same question in his own suit being available to Dr. Mahmud, the learned Judges of the High Court should have declined to entertain the petition under Article 98 of the then Constitution calling in question the second resolution of the Syndicate.

16. The same position obtained in P L D 1968 S C. The questions which were agitated before the Dacca High Court tinder Article 98 of the then Constitution were already pending decision in litigation before the Courts below. It was held by the Supreme Court while relying upon the aforesaid authority as contained in P L D 1966 S C that where it was apparent from the facts of a particular case that the same questions, were pending decision in a. civil litigation the High Court should not during the pendency of that litigation take upon itself to decide the same questions in its extraordinary jurisdiction. In such cases the parties should be left to pursue their litigation in the ordinary Courts and should not be allow ed to short circuit them by a petition invoking extraordinary jurisdiction. In that case, .Registrar Companies East 20th September, 1966 had issued certain certificates regularising the right of the section led by the appellant before the Supreme Court to represent the East Pakistan Timber Merchants Group. The High Court held that since litigation was already pending in the civil Court between the parties with regard to the points subject-matter of the certificates, therefore, the Registrar should have refrained from doing anything which might have caused prejudice to any of the parties to the litigation. This order was challenged before the Supreme Court, but the judgment passed by the High Court was maintained mainly on the ground that since the matter in question was pending adjudication before the lower Court, therefore, such decision should not have been made.

17. P L D 1968 Dacca pertains to a case of failure to honour contractual obligation arising out of an agreement. It has been held that the same could not be decided by the High Court in writ jurisdiction. In 1975 S C M R, similar position obtained as was obtaining in the first two authorities. In that case the petitioners had already challenged the validity of the order, of the Additional Settlement Commissioner in the civil Court and the suit filed by them was still pending. It was held that they could not be allowed to agitate the- same matter at another forum, namely the High Court in writ jurisdiction.

18. So far as P L D 1968 Dacca is concerned, the same is not applicable to the facts of the present case. It is the jurisdiction of respondents I and 2, who called the parties to be pre6ent on 3rd January, 1979 on the application moved by respondent No. 3, which is to be determined ; and whether the eviction of the petitioner was the result of the agreement in question brought into being at the instance of respondents 1 and 2, who had no jurisdiction to deal with the matter ? This aspect will be dealt with in detail later on. However, the other three authorities are also not applicable to the facts of the present case. In all the cases civil litigation was still pending when judgments for or against the parties were announced by the High Court or the Supreme Court in exercise of extraordinary jurisdiction. Such position does not obtain in the present case. As discussed above. the aforesaid authorities have laid down that during the pendency of civil litigation extraordinary jurisdiction vesting in the superior Courts may not be exercised. In the present case, both the civil suits having become infructuous were withdrawn on 7th June, 1979 and this fact has not been denied by the contesting respondents. That being the position, this Court is not debarred from deciding the, matter agitated to the main case.

19. Further, if there is an error apparent on the face of record and the authority otherwise apparently lacks jurisdiction then extra ordinary jurisdiction should not be refused to be exercised irrespective of the fact A that civil litigation is pending between the parties This view gains strength from Nawabzada Arshad Ali Khan v. Deputy Settlement Commissioner, Circle 1, Lahore (P L D 1962 Lah. 708) and Kala Mia Sahib v. Province of East Pakistan and' others (P L D 1963 Dacca 636). In the latter case civil litigation was pending between the parties with regard to title of the land in question while irrespective of that the Joint Collector, Nawakhah served a notice upon the petitioner before the High Court to show cause as to why the compensation should not be assessed against him under section 3 of Ordinance XIX of 1960. This order was challenged before the High Court being male fide and colourable to prejudice the proceedings pending in the civil Court. . It was held that since the petitioner had a long standing bona fide dispute it the civil Court with regard to the land covered by the order of the Joint Collector, there fore, the impugned order passed by him was male fide and colourable in order to adversely affect the civil litigation. The relief prayed for under Article 98 of the then Constitution was granted.

21. As such, the objection raised by the learned counsel for the respondents that since the petitioner has already approached the civil Court by filing civil suits and has availed of the alternate remedy pales into insignificance.

22. Copy of the application, which was submitted by respondent No. 3 before the Martial Law Authority at Rawalpindi, has been appended by respondents 1 and 2 alongwith their parawise comments. Correctness of the same has not been denied by respondent No.

3. As mentioned above, respondent No. 3 prayed the Martial Law Authority for recovery of the arrears of rent from the petitioner in relation to property bearing No. N W-61 I . It is admitted by respondents 1 and 2 as well as respon dent No. 3 that notice on this application was issued to the petitioner after the same was entertained and when the parties appeared before, res pondents 1 and 2 on 3rd January, 1979 the. agreement in question was got executed from the petitioner. The first question which arises for consideration is whether respon dents l and 2 had any jurisdiction even to entertain any such application. On being asked the learned Assistant Advocate General appearing on their behalf has conceded that they had no jurisdiction under any Martial Law Regulation or Order or even under the instructions issued by the C M. L. A. or the Martial Law Administrator, Zone to entertain such application. It has also been admitted by the learned Assistant Advocate-General that according to the instructions issued by the C. M. L. A. no Martial Law Authority is authorised to deal with a civil matter. When respondents 1 and 2 had no jurisdiction, whatsoever, to deal with the application submitted by respondent No. 3, then the superstructure raised on any proceeding held by them would fall to the ground.

23. The plea raised by respondents 1 and-2 as well -as other- respon dents that the petitioner and respondent No. 3 while appearing before the Martial Law Authorities agreed amongst themselves, without the interven tion of the Martial Law Authorities, to execute the agreement in question has riot been raised for the first time in this case. Such pleas have been raised in large number of cases already dealt with by this Court and always repelled in the given circumstances. In such cases in which Martial Law Authority concerned has no jurisdiction, this is the usual type of plea which has always been raised-that since the parties agreed before it for the execution of an agreement, therefore. that being the result of voluntary act on their part its validity cannot be challenged. Such device has been evolved to overcome the question of jurisdiction, which does not, in any 'manner, vest in the Martial Law Authorities.

24. The agreement in question was executed on 3rd January, 1':x';9 while, as mentioned above, the petitioner filed two, civil suits against the respondents with the property to question seeking the protection of law by way of grant of permanent injunction against his forcible eviction at the hands of respondent No.

3. Admittedly injunction in the civil suit was granted in his favour protecting his possession over the property in dispute. It is difficult to believe and the circumstances clearly show that there was no occasion for the petitioner to agree readily to execute the agreement in question, which was written by the scribe, as admitted by the respondents, in the premises of the Martial Law Headquarters when admittedly injunction had already been issued in his favour. If the parties had settled the dispute amongst themselves voluntarily, then there was no reason as to why such agreement could not be presented before the Civil Judge who was already seized of the matter. Apparently the agreement is the result. of the proceedings initiated by respondent No. 3 before respon dents Nos. 1 and 2, who had no jurisdiction to idea. with. the matter. It is so admitted even by respondent No. 3 in his report Submitted to respondent No.-6 After he took over the possession from the petitioner on 3rd January, 1979. Certified copy of the report has been filed by respondent No. 6 alongwith his paralwise comments. According to that respondent No. 3 has admitted that he filed an application before the Martial Law Authori ties at Rawalpindi against the petitioner and respondents Nos. 1 and 2 summoned the parties on 3rd January, 1979 and under their orders the agreement in question was executed by the petitioner to the effect that he would vacate the premises consisting of two rooms and of plot measuring 11 kanals on the date when the agreement was executed and would vacate the show room on 6th January, 1979. He has further stated in the report that he got possession of the aforesaid property from the petitioner in compliance with-the agreement in question. According to the endorsement made by the Police Officer concerned on the report, the same was duly signed by respondent No. 3.

25. The petitioner has alleged in the writ petition that possession was forcibly taken by respondents Nos. 3 to 5 with the assistance of respondent No. 6, the S. H. O. of the Police Station concerned. Mr. Muhammad Baqir, Additional S. H. O. Police Station `B' Division, Rawalpindi appear ed in the Court in compliance with the Court's order on 27th January, 1979 and admitted that the order passed by respondents Nos. 1 and 2 for the eviction of the petitioner from the property in question was carried out by him. According to this Court's order dated 27th January, 1979, in the circumstances he was impleaded as respondent No. 6 in place of the S. H. O. The learned counsel for respondents Nos. 3 to 5 moved an application for correction of the order referred to above, passed on 27th January, 1979, submitting that no such admission was ever made by respondent No.

6. There is no doubt that respondent No. 6 in his parawise comments never accepted that position that he assisted respondent No. 3 in vacating the petitioner, however, while appearing in the Court in reply to a question put by me he admitted that he executed the oral order of eviction passed by respondents Nos. 1 and

2. In the circumstances, no question of making any correction in the aforesaid order arises. Further, respondent No. 6 has never moved any application for the correction of the aforesaid order alleging that he did not make any such admission before this court.

26. The simple but crucial points need to be determined in this case are: (i) whether the transaction in question was wholly or partially the result of the execution of the agreement in question, written by the peti tioner under the orders of respondents Nos. 1 and 2 and (ii) whether the proceedings held by the aforesaid respondents were with or without lawful authority. The circumstances of the case discussed in detail above would answer the first question in the affirmative. The petitioner appeared before respondents Nos. 1 and 2 in obedience to their direction, the agreement in question was executed by him under their orders, as admitted by respon dent No. 3 in his report dated 3rd January, 1979 submitted to respondent No. 6, admission of respondent No. 6 in the Court that he assisted respondent No. 3 in evicting the petitioner from the premises in question under the verbal orders of respondents Nos. 1 and 2, execution of the agreement in question in the office of respondents Nos. 1 and 2, the Martial Law Authorities, and delivery of possession to respondent No. 3 under the orders of respondents Nos. 1 and 2 in violation of the temporary injunction issued by the civil Court on 1st January, 1979, all these furnish answer to the question. The second question is also to be answered in the affirmative. The matter in question with regard to recovery of arrears of rent is admittedly a civil matter. Respondents Nos. 1 and 2, as already discussed above, had no jurisdiction, whatsoever, to deal with the same and even on receiv ing such application from respondent No. 3 they should have directed him to approach the civil Court for the redress of his grievance. In spite of that and contrary to the clear instructions issued by the C. M. L. A. they directed the petitioner to appear before them and then ordered him to execute the agreement in question in favour of respondent No. 3.

27. Similar situation obtained in Writ Petition No. 2001/77, decided on 14th November, 1978 by Mr. Justice Shafi-ur-Rehman, as his Lordship then was, and in

1. C. A. No. 833/78 filed against the said judgment, decided by a Division Bench of this Court. The judgment was written to Mr. Justice Muhammad Afzal Zullah, as his Lordship then was In that case a document purporting to 6e an agreement was allegedly executed by the parties. It was alleged that the same was executed as a result of the order passed by the D. M. L. A., Multan on 6th August, 1977 whereby the respondents had been directed to hand over possession of certain land together with standing crops, houses and other structures to the appellant before the Division Bench. The possession was handed over under coercion by the respondents before the Division Bench under the orders of the D. M. L. A. According to the said agr4ement, the appellants before the Division Bench had foregone, through the alleged writing, recovery of Rs. 22,

000. It was held by the learned Single Judge while disposing of the aforesaid writ petition that the document in question as also the transfer of possession was on account of coercion exercised on the respondents, before the Division Bench, by the Martial Law Authority through an order which was beyond its jurisdiction. It was held that the superstructure based on that order could not be saved when the foundation itself was not sound. The part played by the statutory functionaries having been annulled the appellants before the Division Bench were directed to restore possession as a consequential direction, with the clarification that the rights of the appellants with regard to other available legal remedies against the respondents would remain intact.

28. It was contended before the Division Bench hearing the above mentioned I C A that respondent had other adequate remedies such as filing a civil suit and submission of an application before the Revenue authorities for restoration of the possession if at all is was found to have been obtained illegally. It was further contended that even if it was assumed for the sake of argument that transfer of possession suffered from infirmity on account of the order of the Martial Law Authority, then same being void it was discretionary with the High Court to grant or withhold relief to the respondents who had no right to retain the land (they being allegedly sub-lessees of the lessee whose term of lease had expired) the discretion should not have been exercised in their favour as they were perpetuating the illegal possession. All these pleas were repelled mainly on the ground that since the Martial Law Authority which dealt with the matter had no jurisdiction, whatsoever, to deal with the same, therefore, the proceedings taken by it in that behalf could not be sustained being illegal.

29. Similar view was taken by Mr. Justice Shafi-ur-Rehman, as his Lordship then was, in Mukhtar Hussain v. MaJ. Khawar Hussain etc (P L D 1978 Lah 1352) In that case also, assistance of Martial Law Authority was sought by the respondents before the High Court to evict the petitioner from the premises in his occupation. Both the parties were called by the Martial Law Authority and the petitioner was forced to vacate the premises and give in writing that he would vacate the premises. Thereafter a direction was given to vacate the possession on 20th September, 1977. He challenged the order through a petition invoking extraordinary jurisdiction on the same date which came up before the learned Judge on the aforesaid date. Report was called for and the respondents were also directed not to interfere with the possession of the petitioner over the property in question. However, on 15th November, 1977, when the parties appeared, it transpired that irrespective of the order of the High Court the petitioner had been ,dispossessed by the respondents on 26th and 27th of September, 1977. The contesting respondent, landlady of the property in question, pleaded before the High Court that it was the petitioner who himself, of his own accord, had reached the compromise and after receiving a certain amount of sum he vacated the-possession. The facts that complaint was made before the Martial Law Authority for the eviction of the petitioner before the High Court and the proceedings had been' taken by the Martial Law Authority as a result of which agreement was got executed were found to be correct by the learned Single Judge. It was held on that basis that a tenant was sought to be evicted from the property of which he was tenant not for default or any breach of the terms of the tenancy. It was also clear that for that purpose assistance of the Martial Law Authority was sought by the landlady which came to her rescue by entertaining application, by calling the parties and by forcing the settlement. It was further observed that reluctance of the tenant to handover possession showed that the proceedings were against the statutory protection enjoyed by him and he was evicted against the express order of the Court. It was held that in order to protect the jurisdiction of the Court, to strengthen it and to effectively take it available to the parties, who were not dealt with in accordance with law in respect of their rights, it was directed, the restoration of possession should take place and the respondents before the High Court were held under duty to do so forthwith. It was further held that if0they had any right under the agreement or if they had paid any amount, they could seek appropriate 'remedy for recovery of the amount or enforcement of the agreement, provided it was shown before a Court of preliminary jurisdiction to be enforcible at law. It was held that act of dispossession in contraven tion of the law and against the order of the Court and an abuse of the proceedings between the landlord and the tenant was liable to be declared to be without lawful authority.

30. In the present case, as mentioned above, admittedly injunction had been granted in-- favour of the petitioner protecting his possession against eviction at the hands of the respondents 3 to 5, but in spite of that, on the basis of the agreement in question he was forcibly evicted. Obvious ly, as held in the aforesaid judgment the petitioner was not dealt with in accordance with law. If he was a defaulter appropriate step could be taken against him before the Rent Controller for his ejectment on that basis. Nothing has been brought on record to show that the petitioner was defaulter in the payment of rent. As held in the judgment in Writ Petition No. 2001 /77, it is established law that a tenant, unless and until evicted in due process of law has right to remain in possession of the property. When a non-statutory person disturbs such position, remedies can be pursued in Courts of preliminary jurisdiction. Where, however, as in this case, a statutory authority intervenes to accomplish it, the action can be tested in Constitutional jurisdiction and in appropriate cases, such as Haji Abdus Sattar Bhawani v. Abdul Majid and others (1968 S C M R 646) Syed Mehdi Hasnain v. Muhammad Ayub and another (1970 S C M R 434) and Muhammad Ghani v. M. A. Mullick & brothers (1973 S C M R 99) restoration of possession can be ordered.

31. In the circumstances the present case is a fit one on facts as well as n law in which restoration of possession must be ordered, putting the parties in the same position as they were before the respondents 1 and 2, Martial Law functionaries, intervened, and it is hereby ordered accordingly. Consequently Writ Petition No. 198/79 is accepted with costs and respon dents Nos. 3 to 5 are directed to forthwith restore the possession of the petitioner. Their right with regard to other legal remedies against the. petitioner shall remain intact, but shall not be so enforced as to deny, defer or obstruct the course and implementation of this direction.

32. So far as Writ Petition No. 1647/79 is concerned, I am afraid, this does not appear to be maintainable. Au effort has been made to show that eviction from the property bearing No. N. W. 614 has been effected 'as a consequence of the execution of the agreement dated 3rd January, 1979 with regard to property bearing No. N. W.

611. It is admitted on record that the property in question in this writ petition has not been even referred to in the aforesaid agreement which has been held to be ineffective on account of lack of jurisdiction on the part of respon dents I and 2 in that writ petition to deal with the matter being purely of civil nature. Since the dispossession of the petitioner from the property bearing No. N. W. 614 has not resulted on account of the execution of the aforesaid agreement dated 3rd January, 1979, which was the result of illegal and without jurisdiction proceedings conducted by respondent Nos. 1 and 2, therefore, I am afraid, no relief can be granted to the petitioner in this writ petition. The same is, therefore, dismissed without any order as to costs.

33. As far Writ Petition No. 1094/79 is concerned, according to law in petitions invoking extraordinary jurisdiction of this Court, as laid down in Ch. Shah Muhammad v. S. H. O., City Police Station, Rahim Yar Khan and 2 others (P L D 1,976 Lah. 1412) and Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others (P L D 1977 Lah. 424) it is not necessary that in each and every case where there is omission to perform a statutory duty a direction must issue. The person aggrieved, first of all, has to satisfy that no adequate and efficacious alternate remedy is available to him under the law. Adequate remedy is provided to a complainant under section 190 read with sections 200 to 203 Cr. P. C. Section 190 provides that a Magistrate may take cognizance upon receiving a complaint of facts, which constitutes such facts. It has been held in the aforesaid authorities that there may be cases where evidence to prove commission of an offence cannot be collected, except through the police agency. The registration of a case can empower the police to collect evidence and submit report under section 173, Cr. P. C. on which the concerned Court may take cognizance .of the case and try the accused. The objective of the private complaint or the registration of a case is to facilitate taking cognizance of an offence by the Magistrate so as to apprehend the offender to book. The only advantage that a. complainant may have in the registration of a case over a private com plaint is that complicated facts may be investigated, places or persons be searched and objectionable material seized, recoveries made and chemical or post-mortem examinations conducted through the agencies fully qualified for it and at the State expense. It has been held that if a complaint to be lodged involves any further investigation, collection of evidence, chemical examination or any article and post-mortem or medico legal examination, it will be desirable, in the interest of justice, to direct the police to register a case and proceed to investigate it in accordance with law. It has been further held that in cases where no such difficulties, as given above, are involved, this Court in exercise of its extraordinary jurisdiction may not lend helping hand to the complainant. ,

34. Otherwise, under the law, as held in M. Anwar Bar-at-Law v. The Station House Officer, Civil Lines. Police Station, Lahore (P L D 1972 Lah. 493) Ch. Ala Ullah v. Ch. Mumtaz Ahmad Kahlon and 3 others (1973 P Cr. L J Lah. 69) ; Nazir Ahmad v. Khushi Muhammad and 2 others (1974 P Cr. L J Lah. 579) and Sawant v. S.H.O. Kasur etc. (P L D 1975 Lah. 733) registration of case under section 154, Cr. P. C. cannot be refused by a Police Officer, who is obliged under the law to register case as and when information is laid before him.

35. In the present case it has been alleged by the petitioner that the articles lying in both the properties in question were taken away by respon dents 3 to 5, in Writ Petition No. 198/79, while breaking open the locks which he had put on the aforesaid properties in his possession as tenant. It may be mentioned that before his forcible eviction, he sent a complaint to the D.S.P. concerned alleging that after the execution of the agreement in question under pressure and coercion, 'he was likely to be thrown on the road and his belongings, list of which was furnished to the D.S.P., were likely to be taken away by the respondents. He has appended a long list of the articles alleged to have been removed- by the respondents. It is alleged by the petitioner that at ,the time of the removal of the articles he was not at .the spot ; rather process of his eviction was carried out . at his back. It means that evidence showing forcible eviction and removal of the articles from the properties in question is to be collected and is not in possession of the petitioner at this moment. It can be done only through investigation by the police agency. 35.' It will be, therefore, in the interest of justice to direct the respon dent, S.H.O. to register case at the instance of the petitioner and to proceed to investigate the same in accordance with law. It is hereby ordered accordingly. Writ Petition No. 1094/79 is accepted without any order as to costs. S. Q. Order accordingly.