ABDUL RAHIM KHAN vs TOWN COMMITTEE,MAKHDOOMPUR PAHOORAN and others

' Abdul Rahim Khan petitioner had taken lease of collection of octroi duty of Town Committee Makhdumpur Pahooran, in an open auction held on 2-6-1981 for the year 1981-82 against the bid of Rs.2,88,750. An agreement between the parties was executed in writing. One of the conditions of the agreement was that the petitioner would pay the monthly instalment in advance on the first of each month and in case he failed to do so, the Town Committee shall have the right to cancel the lease and take over the arrangements of collecting the octroi duty.

2. The respondent Town Committee issued a notice dated 2-12-1981calling upon the petitioner to deposit Rs.34,721.06 within three days, on account of the advance instalment for the month of December, 1981 and the salaries of the employees for the month of November, 1981, etc. failing which the lease would be considered as cancelled. The petitioner did not comply with the demands raised in the said notice. The matter was considered in the meeting dated 10-12-1981 by the members of the respondent Town Committee which was presided over by its Chairman wherein it was resolved that since the petitioner has failed to deposit the instalment by the first of December 1981 and has also failed to pay the salaries of the staff for the month of November, 1981 and had filed a civil suit against the Town Committee, therefore, the lease of the petitioner be cancelled. It was further resolved that the lease pertaining to octroi duty be reauctioned for remaining period of six months vide resolution No.3 dated 10-12-1981.

3. Being aggrieved of this resolution, the petitioner filed this Constitutional petition against respondent Town Committee praying that the notice issued by the respondent and also the subsequent resolution No.3 dated 10-12-1981 be struck down, being illegal. It was further mentioned that the petitioner did not commit default in the payment of the monthly instalment, rather he had already paid Rs.2,51,880 as against Rs.1,66,844.06 due from him.

4. I have heard the learned counsel for the parties and 'also perused the record.

5. It may be noted that the contentions raised by the petitioner's counsel relate to a disputed question of fact and the petitioner has sought the indulgence of this court to resolve his dispute with the Committee regarding the rendition of account and performance of contractual liabilities arising out of contract of lease of octroi duty. During hearing of arguments it transpired that the petitioner has suppressed the factum of institution of a civil suit on the same subject-matter in which the same issues were involved.

6. A notice was issued to the petitioner and his counsel Mr. Khadim Nadeem Malik, Advocate who submitted that he was unaware about the pendency of the civil suit when the writ petition was instituted as the petitioner did not take him into confidence on this aspect. However, subsequently, the civil suit was withdrawn of course well after filing this writ petition.

7. This petition could be disposed of summarily on the sole ground of suppression of material facts concerning the jurisdiction of the High Court. It has been repeatedly held by the Supreme Court of Pakistan as well as by this Court in a number of cases that if a party comes t the portals of the High Court with unclean hands then no relief unde the Constitution can be granted to such a party.

Reference with A advantage can be made to Abdul Aziz v. Muhammad Ali PLD 196 Lah. 763 and Mirza Muhammad Shafi v. Collector Sheikhupura, etc. L D 1968 Lah.

403. Recently in a case of Mailsi titled as Saifullah Khan v. Settlement Commissioner 1982 SCMR 853 the Supreme Court ha non-suited the petitioner in that case on account of suppression of fac in his petition.

8. Even otherwise it appears that the petitioner wants this Court to go into disputed questions of fact which exercise is beyond the pal of the constitutional jurisdiction of this Court. The questions raised in the petition cannot be adjudicated upon without making reference to the terms of this contract, between the parties and the contradictor stand taken by the parties. The High Court cannot dabble into the realm of disputed questions of facts. On this score as well, the petition has no merit. The petitioner has vociferously contended that there was no other efficacious remedy available to him, but he lost sight of the fact that there was an arbitration clause in the contract which has no been resorted to by him. Apart from it he has another remedy of filing a suit before a Court of civil jurisdiction, to get his grievance redressed.

9. There is yet another aspect of the case, i.e. that primarily this is a case in which the petitioner desired determination of a contractual liability, which again falls outside the scope of constitutional jurisdiction. Such matters can be agitated and resolved before appropriate forum provided by law. The High Court is always loath to interfere in such matters as has been held in Subhan Beg and 18 others v. Pakistan Estate Oil Co. Ltd. PLD 1980 Pesh. 113; Messrs Momin Motor Co. v. The Regional Transport Authority Dacca PLD 1962 SC 108 and Noor Muhammad Qureshi and another v. The Divisional Superintendent Pakistan Railways Quetta 1979 SCMR 157.

10. For the foregoing reasons I see no justification for exercising discretionary and extraordinary constitutional jurisdiction of this Court in the matter in hand. Consequently this petition stands dismissed with no orders as to costs.