Shehri-CBE And Other vs City District Government, Karachi And Other

Z1A PERWEZ, J. - Petitioners seek leave to appeal against the impugned order dated 13.2.2008, whereby Constitution Petition No. D-17 of 2007 was-dismissed by a learned Division Bench of the High Court of Sindh, Karachi.

2. The petitioners are claiming to be the representatives of residents of the area and acting for welfare of the citizens in the larger interest of community and instituted Constitution Petition No. D- 17/2007 seeking declaration, directions and restraining orders pertaining to the utilization of land, known as Gutter Baghaicha Karachi. After referring to H.R. Case No. 6-K of 1993 decided by this Court vide order dated 29.5.2003, whereby the said H.R. Case was disposed of on the basis of the statement to the effect that the matter was under negotiation for arriving at a settlement during which all the parties can be associated. Subsequent contempt application was dismissed by order of this Court dated 1.11.2006 on the ground that the allegation and counter-allegations levelled by the parties against each other did not constitute contempt of the said order dated 29.5.2003.

3. On coming up for hearing', the learned Division. Bench of the High Court with this background, on arriving at a conclusion that Petition No. D-17/2003 was similar to the earlier contempt application, as had been dismissed vide above-said order dated 1.11.2006 by this Court, the learned Bench did not allow the petitioners to reagitate the same matter again by invoking the Constitutional jurisdiction of the - High Court under Article 199 of the Constitution of Islamic Republic of Pakistan.

The above-said petition was accordingly dismissed.

4. Mr. Naeemur Rehman, learned Sr. ASC for the petitioners has vehemently contended that, the matter involves recreational facilities enjoyed by two million residents of the area. That the public interest has been jeopardized by not associating the petitioners with the proceedings forming the basis of the report submitted before this Court. He further contended that Human Rights Case No. 6-K of 1993 resulted in a compromise between the parties providing for future course of action and Violation of the order as a consequence whereof a fresh cause of action accrued upon the petitioners to agitate their grievance.

5. No conclusive findings were arrived at by this Court in the said Human Right Case. Albeit the course of future action for a proposed settlement with the association of interested parties was recorded while disposing of the case. Such a course of action involving factual controversies and resolution of facts involving detailed factual inquiries and fact findings on the basis of evidence, records and materials would not justify invoking the Constitutional jurisdiction of the High Court in exercise of its powers under Article 199 of the . Constitution as laid down by this Court in the case of Secretary to the Government of the Punjab Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and three others (PLD 2001 SC 415).

As to the contention of leamed counsel for the petitioner that the order passed in the above-said Human Right case constitutes a compromise between the parties whereby the cause of action accrued to pursue their remedy available according to law, the principle laid down in the case of Haji Mittha Khan v. Muhammad Younis and others (1991 SCM R 2030) with regard to cause of action is clearly spelt out in paragraph No. 3 of the judgment as follows:- "The vagueness of the plaint, of the relief claimed, the deficiency in the Court-i.e, the defective form of suit, the repugnancy of the compromise to the Islamic principles and the question of limitation are' all questions which arise only when there is a cause of action. If there is no cause of action all these subsequent questions do not arise. The test c|>f cause of action is that if what the plaintiff states is taken to be correct does it entitle him to relief or not in law. Ln the case in hand the appellant clearly claimed that he had entered into a valid compromise, that the respondents were party to it or bound by it, that both the parties were bound by it and that the rights of the appellant under the compromise were being violated. This would afford a cause of action to the plaintiff and it would only be on merits that he could be defeated. If it is held that the claim is not within time, the parties were not parties to the compromise, the compromise is not in accordance with the law applicable to the parties, then it is a decision on merits which must take place in proper form. If there was found any defect in the frame of the suit or deficiency in Court i.e, then an opportunity had to be allowed to the party to correct that defect and to remove the deficiency."

6. The above view .Clearly refers to recording of evidence before arriving at a conclusion and applies to proceedings in a suit between the parties. Proceedings in a Constitutional petition to be decided on admitted set of facts cannot be equated with proceedings in a suit attracting an entirely different procedure for recording of findings on issues after examining the evidence.

7. For the foregoing reasons, the impugned judgment of the learned Division Bench of the High Court does not call for any interference by this Court. Consequently, this petition being devoid of any merit is dismissed. Leave to appeal is refused.