AYYAS MAHMOOD vs ADDITIONAL DISTRICT JUDGE and others
This matter arises from a petition for leave to appeal against the High Court's dismissal of the petitioner's writ petition, which stemmed from the dismissal of his application under Section 12(2) of the Code of Civil Procedure challenging a land sale decree on the ground of fraud. The core legal question concerns whether discretionary constitutional relief can be granted to a party attempting to use technicalities to defraud another despite concurrent findings that no fraud was committed against him and that he received the sale consideration. The Supreme Court held that a writ shall not issue in aid of injustice under constitutional jurisdiction and dismissed the petition. The key principle laid down is that discretionary relief under constitutional jurisdiction will be withheld from a litigant whose conduct shows an attempt to perpetuate injustice or defraud an opposing party.
- Can a writ issue in aid of injustice under the constitutional jurisdiction of the High Court?
- Is a party who has received sale consideration and attempted to retain it without justification entitled to discretionary relief on the ground of fraud?
- Whether an application under section 12(2) of the Code of Civil Procedure challenging a decree on the ground of fraud can succeed when findings establish no fraud was committed against the applicant?
- Section 12(2), Code of Civil Procedure 1908
- Article 199, Constitution of Pakistan 1973
- Section 19, Colonization of Government Lands Act 1912
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the petitioner against the dismissal of his writ petition by the High Court. It had arisen out of the dismissal of his application under section 12(2) of C.P.C.; whereby he had challenged a decree about sale of land by him, on ground of fraud.
2. ' Despite protracted litigation the petitioner has not been able to obtain a favourable finding on question of fraud. The High Court held that he had received the sale consideration and was trying to retain it without justification. And thus it was alSo found that he had not been defrauded. Instead, he was trying to defraud the other party on the basis of mere technicalities. Therefore, he was not entitled to a discretionary relief.
3. Learned counsel has tried to assail the aforestated view of the High Court. He has contended that departure from law could be made use of by the petitioner; notwithstanding the adverse findings about his conduct.
4. ' We do not agree with him. It is now an accepted rule that a writ shall not issue in aid of injustice under the Constitutional jurisdiction conferred by Art.199 of the Constitution on the High Court. The petitioner has rightly been refused relief in this discretionary jurisdiction. The approach of the High Court is unexceptionable. Otherwise too the argument of the learned counsel based on Section 19 of the Colonization of Gvernment Lands Act and paragraph 25 of the M.L.R. 115 has rightly been repelled by the learned Judge of the High Court by reference to the Supreme Court view on the point.
5. ' Looked at from whatever angle this petition has no force and is dismissed.