RESHAM KHAN vs DISTRICT JUDGE, ATTOCK AHD Other
The petitioner filed a pre-emption suit which was subjected to a deficiency in court-fees by the Civil Judge. During revision proceedings before the District Judge, a conditional offer of compromise led to the appointment of a local commission, which failed due to a lack of confidence expressed by the petitioner. The District Judge subsequently dismissed the suit based on statements of the vendor and the plaintiff. The petitioner challenged this dismissal through a writ petition in the High Court, which was dismissed. Upon a petition for leave to appeal, the Supreme Court addressed whether a writ petition was maintainable and appropriate against the order of the District Court. The Supreme Court held that assuming a writ petition could lie against a subordinate court, a civil suit was a more appropriate and adequate remedy to challenge the impugned order in the circumstances of the case. Consequently, the Court dismissed the petition, declining to examine the merits of the case.
- Whether a writ petition is an appropriate remedy when an adequate remedy by way of a civil suit is available to challenge an order of a subordinate court?
- Can a High Court exercise its constitutional jurisdiction when the petitioner has an alternative and more appropriate remedy available?
ORDER
1. DORAB PAS., J.-The petitioner had filed a pre-emption suit to pre--empt a sale by which one Zainab Din had sold the land in dispute to the second respondent for Rs.30,000. The second respondent had then resold this land to the third respondent for Rs.40;". However, in the opinion of the learned Civil Judge, before whom the suit was pending, the petitioner had not paid proper court-fees, therefore, on 16-10-1979, he directed the petitioner to pay proper court-fees, etc. The petitioner challenged this order in a revision before the first respondent ,and it would appear that the second respondent made an offer that if the suit plot was contiguous to the petitioner's land, as claimed by the petitioner, he would have no objection to the petitioner's suit being decreed. As the petitioner accepted this offer, the first respondent appointed a Commissioner to report on the question whether the suit land was contiguous to land owned by the petitioner. But. According to Mr. Ansari, the Commissioner submitted a report expressing his inability to execute the Commission as the petitioner had expressed lack of confidence in him. Then when the matter came up before the first respondent, the first respondent recorded Zainab Din's statement, and passed the following order on 9-1-1980 :- "In view of the above statement of Vendor, report of Local Commis--sioner (Haji Shamsud din Advocate Pindigheb) and statement of Resham Khan plaintiff dated 8-11-1979, the suit is dismissed with no orders as to costs."
2. Mr. Ansari's contention was that as the Commissioner had expressed his inability to execute the Commission and are the petitioner had not entered -into any fresh compromise, the order thus passed by the first respondent was illegal, and, therefore, the petitioner challenged it m a writ petition in the Lahore High Court. But, as the writ-petition was dismissed, he has filed this petition for leave.
3. We enquired from learned counsel whether a writ petition could be filed against an order of a District Court, because the first respondent is the District Judge of Attock. Learned counsel submitted that a writ petition could be `, filed against the judgment of a subordinate Court, and he cited several rulings in submission. As the rulings are distinguishable on the facts, we will assume only for the sake of argument that a writ petition can be filed against a sub- ordinate Court.
4. However, even on this assumption, the question is whether, the petitioner could not have filed a suit in the Courts to challenge the first respondent's order of 9-1-1980 and Mr. Ansari conceded that the petitioner could file a suit against this order. The concession thus made by counsel was proper as the legal situation is beyond doubt. And, therefore, even on the footing that a writ can be filed against an order of a subordinate Court, the High Court should first have examined the question whether, in the circumstances, a writ was a more appropriate remedy than a suit.
5. Now, in the circumstances of the case, we have absolutely no doubt thatthe writ was not a proper remedy and that only a suit was an adequate remedy, the more so, in view of the observations of the Court in paragraph 3 of this order. Therefore, the petition fails on the ground that it was not a fit case for the exercise of the High Court's Constitutional jurisdiction and in the circumstances, we would not examine Mr. Ansari arguments on the merits of the case, as he said that the petitioner might file a suit to enforce his claim..