NOOR MUHAMMAD vs SARWAR KHAN AND 2 OTHERS

ORDER

' ASLAM RIAZ HUSSAIN, J.-Noor Muhammad petitioner seeks leave to appeal against the order of High Court, dated 30-5-1984 dismissing his writ petition.

2. The facts which led Noor Muhammad to file the writ petition, briefly, are that Muhammad Sarwar Khan filed a suit for recovery of a sum of Rs, 10,000 against one Quttab Din. The suit was decreed on 12-10-1981. Latter's appeal against the decree was dismissed on 7-2-1983 by Additional District Judge, Okara.

3. During the pendency of the proceedings in the trial Court, Noor Muhammad petitioner/defendant had executed a surety bond on 6-4-1980 to secure the rights of a decree- holder. The surety bond which, besides marginal witnesses, also bears signatures of one Syed Maqbool Hussain Shah, Advocate, who identified the surety before the Court, was placed on the file of the Court.

4. After the suit was decreed in favour of Muhammad Sarwar Khan he applied for its execution, whereupon the Executing Court issued warrants of attachment against Noor Muhammad on 5-6- 1983. But Noor Muhammad objected to the execution of decree on the ground that Warrant of attachment could not be issued against him as he had not executed any surety bond. The objections were found to be without merit by the Executing Court, which disallowed the same vide order dated 7-7-1983. Noor Muhammad then filed a revision petition assailing the said order. The learned Additional Districl Judge, however, dismissed it on 3-5-1984 upholding the order of the Executing Court.

Noor Muhammad petitioner then filed a Constitutional Petition against the order dated 7-7-1983 passed by the Executing Court as also the order of the learned Additional District Judge dated 23- 5-1984 passed in the exercise of his revisional jurisdiction whereby he had refused to interfere with order of the Executing Court. The prayer in the Constitutional petition reads as follows :- "It is, therefore, respectfully prayed that an appropriate writ may kindly be issued declaring the action of respondents Nos. 2 and 3 in issuing the warrant of attachment against the petitioner is illegal, without any jurisdiction. It is further prayed that an appropriate writ may kindly be issued, declaring that the surety bond as sanctioned is fictitious and not enforceable against the petitioner and the respondent is not entitled to receive the decretal amount from the petitioner against that surety bond.

' It is further prayed that the petitioner may kindly be allowed any other relief to which he is found entitled to at the time of deciding the title writ petition."

' The High Court, however, dismissed the writ petition vide the impugned order.

' Feeling aggrieved Noor Muhammad has filed the present petition for leave to appeal against the dismissal of Constitution petition.

5. We have heard the learned counsel for the petitioner at some length and also have gone through the impugned order.

' As is evident from the facts recorded in paragraph No, 2 as also from the prayer in the Constitutional Petition filed by the petitioner that it was directed mainly against the orders of the learned Civil Judge dismissing the objection application filed by the petitioner in the execution proceedings, which was upheld by the learned Additional District Judge by his order dated 3-5- 1983, dismissing petitioner's civil revision. During the course of the arguments the learned counsel for the petitioner conceded that the Executing Court had the jurisdiction to pass the order dated 7- 7-1983 disallowing petitioner's objections and that a civil revision is provided by law against such an order before the District Judge/Additional District Judge. It is, therefore, evident that the Constitutional Petition filed by Noor Muhammad petitioner was not competent because neither the impugned orders passed by the learned Executing Court nor that passed by the learned Additional District Judge in exercise of his revisional jurisdiction, can, by any stretch of imagination be said to be 'illegal' or to have-been passed "without lawful authority".

' The petition is therefore, dismissed with costs, as being frivolous.

6. Before parting with the case we may observe that there is an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it has been held time and again that where a Court (in contradistinction to a persona designata, has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal. Refer Badrul Hague Khan v. The Election Tribunal, Dacca and others (1), Muhammad Hussain Munir and others v.

Sikandar and others (2) and Abdul Rehman Bajwa v. Sultan and 9 others (3).

We are of the view that the tendency to file such Constitutional petitions tends to clog the superior Courts with frivolous litigation and causes unnecessary delays in the disposal of other cases and this tendency should therefore, be curbed with a strong hand.

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(1) PLD 1963 SC 704 (2) PLD 1974 SC 139

(3) PLD 1981 SC 522