HAKIM KHAN Versus ASSISTANT COLLECTOR
This matter arises from a petition for leave to appeal filed by tenants against the dismissal of their constitutional petition by the Peshawar High Court in a land ejectment case. The core legal questions involve whether the High Court correctly declined discretionary relief due to the petitioners' dilatory conduct and whether technical objections regarding the restoration of the suit and the omission of compensation adjudication warranted interference. The Supreme Court held that the High Court's refusal to exercise discretionary constitutional jurisdiction was justified given the petitioners' delinquency in prolonging proceedings for twelve years, and that the omission of compensation determination did not invalidate the ejectment. The petition for leave to appeal was accordingly dismissed. The key principles laid down include that discretionary constitutional relief will be withheld from litigants whose conduct is marked by delay and frivolous applications, and that a tenant's claim for compensation for improvements does not invalidate ongoing ejectment proceedings.
- Whether the High Court can decline discretionary constitutional relief to tenants who prolong ejectment proceedings through frivolous applications?
- Does the omission of the determination of compensation for improvements invalidate a land ejectment order?
- Whether leave to appeal should be granted when technical objections regarding the restoration of a suit are found to be unfounded by the High Court?
- Section 46, N.-W.F.P. Tenancy Act 1950
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.‑ ‑‑Leave to appeal has been sought by the tenants' side in a land ejectment case, against the dismissal of their constitutional petition by the Peshawar High Court.
2. With regard to the conduct of the petitioners, the learned Judges of the High Court observed as follows.
3. "The defendant‑petitioners had absented from the proceedings although directed by the Member, Board of Revenue specifically. They had later on applied for setting aside of the ex parte decree after some three months. They had also been observed by the trial Court as well as the Member, Board of Revenue to be prolonging the proceedings by frivolous applications for adjournments. The petitioners are after all the tenants and the maxim "once a tenant always a tenant" must hold good in their case. After all they have to vacate the suit land some day. Twelve long years have elapsed that they have been prolonging the proceedings. They cannot be favoured with technical lacuna if any in the conduct of the proceedings the revenue forums. We are not inclined to exercise the discretionary jurisdiction in their favour after having found them delinquent and defaulters in the conduct, of the ejectment proceedings in the revenue Courts."
4. We afforded full opportunity to the learned counsel appearing for the petitioners to explain the circumstances relating 'to the conduct which were taken note of by the High Court for declining to grant them relief in its discretionary writ jurisdiction. He failed to satisfy us in this behalf.
5. However, we also heard the leaned counsel on the following two points raised before the High Court on behalf of the petitioners:‑
(i) "that since the suit (of the respondents' side) was dismissed in default on 26‑12‑1983 there was no formal order for restoration of the suit hence they could not be awarded an ex parte decree as against the petitioners in the case since decided and not formally restored.
(ii) that the claim of the petitioners for the award of compensation regarding costs of improvements was not properly adjudicated."
6. On the first point, the learned Judges of the High Court after making reference to the relevant facts and circumstances, rejected the petitioners' technical objection as unfounded. In respect of the compensation, the learned Judges made an observation that "it might still be possible for the petitioners to get the same determined through an application under section 46 of the N.‑W.F.P. Tenancy Act, 1950; but, the ejectment shall not be invalidated by reason of the omission of the determination of their compensation."
7. Such treatment by the learned Judges of the High Court of the arguments raised in the constitutional jurisdiction, cannot in any way be considered as erroneous so as to justify interference by this Court. Leave to appeal accordingly is refused.
8. M.I./H‑44/S Petition dismissed.