NASIR Versus HAKIM-UD-DIN, MANAGING DIRECTOR, JAHANGIR ENGINEERING COMPANY, GUJRANWALA

1. Brief facts out of which the present writ petition arises are that respondent No.1(plaintiff) filed a suit for recovery of Rs.23,428 before respondent No.3. against the petitioners. The contents of the suit reveal that petitioners/defendants purchased Fans in consideration ,of Rs.42,990. They promised to pay the aforesaid amount within five months to respondent No. l but they did not abide by the compromise. Due to intervention of Mohallahdars they paid Rs.10,000 in cash and some old Fans valued Rs.9,562. They also promised to pay the balance amount of Rs.23,428 within three months. The contents of the plaint further reveal that the petitioners failed to pay the balance amount. Therefore, respondent No.1 filed the present suit. Respondent No.3 decreed the suit ex parte vide decree, dated 3‑10‑1987. Petitioners being aggrieved filed revision petition before the Additional District Judge, Gujranwala who dismissed the same vide judgment and decree, dated 29‑3‑1989. Hence the present writ petition.

2. Learned counsel for the petitioners submits that petitioners Nos. 1 and 3 i.e. Mirza Nasir and Mirza Amjad appeared before respondent No.3 and requested adjournment to contact their brother petitioner No.2 Mirza Asif for the settlement of dispute with respondent No.1. Respondent No.3 did not accept the request of the petitioners and passed the ex parte order against the petitioners. He further submits that Conciliation Court was not constituted properly as the petitioners did not nominate their representative. Therefore, impugned order was passed by the Chairman respondent No.3 is without lawful authority which is also coram non judice as is envisaged by section 5(1) of Conciliation Courts Ordinance, 1961. He further submits that impugned order of respondent No.3 is in violation of section 5(4)(b) read with Part‑II of the Schedule. He further submits that it is the duty and obligation of the respondent No.3 to issue a certificate that conciliation has failed but the respondent No.3 did not follow this procedure which is mandatory in nature. He further submits that Courts below passed the orders in violation of the mandatory provisions of section 8(3) read with Rules 10(2) and 16(b) as the parties failed to appear before respondent No.3 as is evident from the impugned order of respondent No.3. He further submits that respondent No. l has not based his claim on any contract, receipt or other document and also no consent was given by the petitioners. Therefore, respondent No.3 assumed jurisdiction wrongly. He further submits that assumption of jurisdiction by respondent No.3 is on the basis of the oral agreement which is in violation of the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:‑‑

2. 1986 MLD 774 (Shujjat Ali's case),

3. PLD 1969 SC 57 (Zameer‑ud‑Din's case), and

4. PLD 1974 Peshawar 42 (Mir Ahmed's case).

5. It is strange to note that the writ petition was not admitted for regular hearing till date. Record was summoned vide order, dated 30‑4‑1989 and interim order was passed in the following terms:‑‑

6. "Meanwhile coercive measures should not be taken against the petitioners. "

7. Order sheet reveals that nobody entered appearance on behalf of the respondents till date. However, power of attorney was filed on behalf of respondent No. l by Ch. Ghulam Qadir, Advocate whose name is mentioned in the cause list. List of old cases was sent well in time to the learned members of the Bar with the following note:‑‑

8. "Old cases will not be adjourned. Adjustment, however, may be solicited in highly exceptional circumstances with the consent of the opposite counsel through an application to the Additional Registrar latest by 7 days before the date fixed for hearing."

9. In spite of the aforesaid note learned counsel for the respondent No. l did not get his case adjusted till date. Therefore, case is decided ex parte against him.

3. I have given my anxious consideration to the contentions of the learned counsel for the petitioners and perused the record myself. It is admitted fact that the impugned order of respondent No.3 reveals that he did not provide opportunity to the petitioners to nominate their representative or to respondent No. 1. Therefore, Conciliation Court was not properly constituted in terms of section 5(1) and the law laid down by the superior Courts in the following judgments:‑‑

10. 1985 PCr.LJ 584 (Yasin's case) and

11. PLD 1968 Peshawar 190 (Hafeez‑Ullah Khan's case).

12. It is also admitted fact that respondent No.3 did not issue certificate that conciliation has failed in view of section 5(4)(b) read with Rule 16(b) of West Pakistan Conciliation Courts Rules, 1962 and the law laid own by the Peshawar High Court in PLD 1965 Peshawar 149 (Mst. Syed Khanim's case). It is also admitted fact that no written agreement was executed between the parties. Therefore, respondent No.3 has wrongly assumed jurisdiction as is envisaged by section 5(4)(A & B) and the law laid down by the superior Courts in the following judgments:‑‑

13. PLD 1969 SC 57 (Zameer‑ud‑Din Ahmad's case),

14. PLD 1974 Peshawar 42 (Mir Ahmad's case) and

15. 1986 MLD 774 (Shujjat Ali's case).

16. In view of the aforesaid discussion the impugned order of respondent No.3 is not sustainable in the eyes of law but there are other angles of the case. It is settled principle of law that a person who himself participates before said forum cannot be allowed to challenge competency of proceedings before the said forum on the well‑known principle of estopel and waiver and acquiescence meaning thereby he cannot be allowed to approbate and approbate and would not be heard to contend that forum did not have jurisdiction. In arriving to this conclusion I am fortified by the law laid down in NLR 1995 Civil Law Judgments 625 (Muhammad Hussain's case). The impugned order of respondent No.3 did not reveal that the petitioners had raised question of jurisdiction before him. The jurisdiction that I have been called to exercise is not one which can be invoked by one who is guilty of bad faith and unconscionable conduct. The right is in the nature of ex debito justitiae, but will only be granted if the petitioners can show that their conduct has not been such as to disentitle them of such a relief. This jurisdiction of mine should not be exercised if it lead ultimately to a patent in justice. This conclusion of mine finds support from an observation of their Lordships of the Supreme Court in the case of Ch. Altaf Hussain's case PLD 1965 SC 68. The relevant observation is as follows:‑‑

17. "If the appellant had, however, asked for quashing of the review order by the High Court on the plea of illegality, in certiorari jurisdiction he could have been met with the plea that a writ of certiorari does not issue as of course but that though discretionary, it could be granted ex debito justitiae provided that the conduct of the aggrieved party who seeks to challenge it, has not been such as to disentitle him to relief."

18. The Hon'ble Supreme Court also considered the aforesaid principle in case of Tufail Muhammad's case (PLD 1965 SC 269) and observed as under:‑‑

19. "The writ jurisdiction is not to be exercised in aid of injustice. We have little doubt that Khalilur Rehman was putting forward an untrue case before the Settlement Authorities when he claimed the whole house."

20. It is better and appropriate to reproduce the operative part of the impugned orders to find out whether the petitioners have approached this Court with clean hands or not:‑‑

21. "Operative part of trial Court.

22. Operative part of Additional District Judge.

23. . "Arguments heard and perused the record. Learned counsel for the petitioner has only argued that petitioners were condemned unheard. His contention is devoid of force because the petitioners are real brothers. Two petitioners Mirza Nasir, and Mirza Amjad appeared before Union Council and accepted the liability of amount in dispute. They only sought sometime for arranging this amount. In view of these circumstances, the petitioners cannot claim that they were not properly served or condemned unheard. There is no illegality or material illegality in the impugned decree."

24. The aforesaid operative parts of the impugned orders, clearly show that the petitioners do not approach this Court with clean hands. It is settled principle of law that he who seeks equity must come with clean hands. In this view of the matter I am not inclined to exercise my discretion in favour of the petitioners as per principle laid down by the superior Courts in the following judgments:‑‑

25. PLD 1973 SC 236 (Nawabzada Ronaq Ali's case),

26. (1998 SCMR 1462 (Rana Muhammad Arshad's case), and

27. 1990 CLC 1783 (G.M. Malik's case).

28. In view of what has been discussed above this writ petition has no merits and the same is dismissed.

29. H.B.T./N‑51/L Petition dismissed.