Alternative remedy

2022 MLD 681 PESHAWAR-HIGH-COURT Judicial Precedent

Ss.12 & 37Qanun-e-Shahadat (10 of 1984), Art. 59Alternative remedySuit for specific performanceAgreement to sellProof

Respondent alleged to have paid Rs.3,00,000/- as earnest money and agreed to pay rest of the amount on attestation of mutation

Allegedly it was settled that in case of failure on part of petitioner/defendant, he would pay an amount of Rs.6,00,000/- to respondent; whereas in case of failure on part of respondent, he would pay Rs.3,00,000/- to petitioner

Respondent No.1 had allegedly refused to transfer property and receive remaining amount

Respondent prayed for recovery of Rs.3,40,000/- in the alternate

Mother of petitioner/defendant No.2 submitted application under O.VII, R.11 of Civil Procedure Code, 1908 which was allowed on ground that she was the owner of property but neither she had entered into any agreement with plaintiff nor she had given any power of attorney to her son/petitioner

Suit was concurrently decreed to the extent of alternate prayer

Validity

Respondent had produced scribe who deposed in cross-examination that no sale consideration had been paid in his presence

Respondent appeared as witness and deposed in cross-examination that amount was paid at time of scribing of agreement

Marginal witness deposed that respondent had paid amount in his presence in his baithak and thereafter they proceeded to the petition writer for scribing of deed

Civil suits had to be decided on basis of preponderance of evidence and respondent was required to prove his case through cogent, coherent, reliable and convincing evidence

Neither the payment of sale consideration was proved nor witnesses were consistent

No denial of the fact that petitioner was neither owner of property nor he was legally appointed special attorney of his mother/defendant

Defendant (mother) was struck off from the panel of defendants but such order of Court was not assailed by respondent

Person could not transfer title better than his own

Respondent stressed for allowing his application for examination of thumb impression of petitioner

Opinion of expert was the weakest type of evidence which could only be considered as corroborative piece of evidence

Statements of witnesses were not in line with each other, hence respondent could not be held entitled for an alternate decree

Revision petition was allowed and suit was dismissed accordingly.

2014 PLC(CS) 320 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

S. 44Writ petition, competency ofAlternative remedyScopeEmployee of autonomous bodyCounsel for respondent urged that as alternate remedy was available to petitioner, writ petition was not competentValidity

Held, as it was the court to decide that the remedy available was efficacious and speedy; and if an order on the face of it was illegal, that could be challenged by way of filing writ petition

Alternate remedy must be adequate, efficacious, convenient, beneficial, speedy and effective

When the court would think proper that the order impugned in the writ petition was without jurisdiction and unlawful, there would be no bar in filing a writ petition

Court would not hesitate in entertaining the writ petition, although alternate remedy was available

Where matter pertained to terms and conditions of service of employee of an autonomous body and the employee was not governed by Azad Jammu and Kashmir Civil Servants Act, 1976 and Rules framed thereunder, writ petition was competent.

2014 MLD 1130 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Art. 199Constitutional petitionMaintainabilityContractual rightsAlternative remedyCommitments, undertakings and obligations had to be enforced through courts of ordinary jurisdictionPetition which fell within the ambit of factual controversy could not be resolved under constitutional jurisdiction

Constitutional petition was dismissed.