FARZAND RAZA NAQVI and 5 others vs MUHAMMAD DIN through Legal Heirs

' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185 (3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 22- 11-2001 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench, in a Constitution petition arising out of proceedings in a civil suit.

2. The relevant facts in small compass in the background, are that predecessor-in-interest of petitioners being owner of the house bearing No,AA/1367/A, MohallahAkalgarh, Rawalpindi, sought ejectment of the tenant from the said house and during the execution of the ejectment order, also claimed possession of house bearing No,AA/1370-A taking the plea that it was part of his house. Din Muhammad predecessor-ininterest of the respondents resisted the execution of the order to the extent of his house through an objection petition and the Executing Court after making a detailed scrutiny of the claim of the parties held that the two houses bearing Nos.AA/1367-A and AA/1370-A were distinct properties and disposed of the objection petition accordingly. The predecessor-in- interest of petitioners filed an appeal against the order of the Executing Court and on its dismissal by a learned Additional District Judge, Rawalpindi, vide judgment dated 17-7-1978 preferred a civil revision in the High Court which was also dismissed by the learned 5ingle Judge vide judgment dated 6-4-1979. The predecessor-in-interest of petitioners then filed a civil suit seeking declaration that house bearing No,AA/1370-A was part of the house No,AA/1367-A and was not an independent property. The suit was dismissed by the learned trial Judge vide judgment dated 5-2-1985. The plaintiff preferred an appeal against dismissal of his suit but subsequently by withdrawing the same from the Court of Additional District Judge on 17-11-1985, filed a fresh suit on 29-7-1986 in which an ex parte decree was passed against Din Muhammad predecessor-in-interest of respondents and after dismissal of the application moved by Din Muhammad for setting aside of the ex parte decree by the learned trial Judge vide order dated 22-11-1990, he instead of assailing the remedy of appeal, preferred to resist the execution of decree through an objection petition but remained unsuccessful. After death of Din Muhammad, the respondents herein, his successors-in- interest while challenging the ex parte decree filed a Writ Petition bearing No,1331 of 1994 in the Lahore High Court, RawalpindiBench. They pleaded in the writ petition that Din Muhammad, their predecessor-in-interest, due to paralysis attack remained confined to bed and could not pursue the matter effectively with the result that the ex parte decree as well as the order of dismissal of the application for setting aside the ex parte decree, could not be challenged by him through an appeal and further the effort made by him to resist the execution of decree also failed. On merits he contended that verdict given by the Executing Court in the matter during the execution of ejectment order was upheld by the learned Additional District Judge in appeal and further by the High Court in Civil Revision bearing No,55 of 1979 therefore, the civil suit on the same subject was not competent which was bound to be dismissed and that the ex parte decree passed in the suit was of no legal consequence. The learned Judge in the High Court while keeping in view the objection relating to the maintainability of the suit and the nature of dispute between the parties, allowed the writ petition with an observation that the dictates of justice would demand disposal of suit on merits.

3. Learned counsel for the petitioners has contended firstly that the respondents instead of availing the statutory remedy of appeal challenged the ex parte decree by way of filing a Constitution petition in the High Court with a delay of about five years and thus the same apart from being not maintainable was also suffering from laches and secondly, the ground of illness of Din Muhammad predecessor-in-interest of respondents taken for condonation of delay was not proved through any reliable evidence except the certificate of medical specialist and neurologist placed on record which was not a sufficient evidence to establish his continuous disability for not pursuing the case and thus the inordinate delay in filing the writ petition was not satisfactorily explained.

4. There is no cavil to the proposition that if the remedy of appeal is available to a party under the statute, without availing such statutory remedy, the Constitutional jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be invoked and the remedy of writ petition cannot be allowed to be availed as substitution of appeal. Following the above rule, the High Court undoubtedly in the normal circumstances, should not entertain the Constitution petition if an alternate remedy under the relevant statute is available to a party but this rule does not create bar of jurisdiction rather it regulates the Constitutional jurisdiction of High Court and thus in exceptional circumstances, the High Court may exercise its Constitutional jurisdiction in a matter in which the statutory remedy of appeal or revision as the case may be, was available but could not be availed. The order impugned in the writ petition if is a void order or it was passed without jurisdiction. The non-availing of alternate remedy ofappeal, review or revision against such an order would not debar the High Court to proceed in Constitutional jurisdiction and declare such an order as without lawful authority. The rule that High Court should not entertain the Constitution petitions and adjudicate the matter in its Constitutional jurisdiction, in which remedy of appeal, review or revision is available under the statute, is not an absolute rule and in exceptional cases the strict observance of the rule that extraordinary remedy of writ petition cannot be availed in a matter in which the relief being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 could be granted by way of appeal, review or revision, may cause injustice in substance, therefore, the application of this rule would depend on the facts and circumstances of each case. In the present case, the petitioners being legal heirs of Din Muhammad would have no independent right of appeal during his lifetime whereas Din Muhammad abandoned the right of appeal available to him by not exercising the said right which would be extinguished on his death and would not be subsequently revived to be availed by his legal heirs and thus in the given situation, the respondents had no other remedy to protect their right in the property except to invoke the Constitutional jurisdiction of the High Court. The dismissal of writ petition on the sole ground of laches depends upon the facts and circumstances of each case, but there can be no exception to the rule that the delay in seeking the remedy of appeal, review or revision beyond the period of limitation provided under the statute in absence of reasonable explanation, cannot be condoned and in the same manner if the remedy of writ petition is not availed within reasonable time, the interference can be refused on the ground of laches. However, the laches cannot be equated with limitation and by itself is not a sufficient ground to non-suit a person if the equities are not against him and he has not been sleeping over his right or was not indolent. The question of laches in the writ petition is always considered in the light of the conduct of the person invoking the Constitutional jurisdiction of the High Court and the degree of his negligence if any and that if by grant of relief being sought by him no injustice is caused to the opposite-party, the Constitution petition should not be dismissed merely on the ground of laches without examining the dictates of justice. The laches in simplest form mean failure of a person to do something which should have been done by him within a reasonable time and is not synonymous with delay alone but it can be worked out to the disadvantage to another person in the matter of his right. In suitable cases, the Court in its discretionary jurisdiction, subject to the offering of reasonable explanation, can condone the delay in filing an appeal, review or revision as the case may be and similarly, can also ignore the delay if any in filing the writ petition in the interest of justice. Din Muhammad, predecessor-in-interest of respondents, after filing written statement failed to appear in Court due to his disability either inperson or through his representative and as a result thereof, an ex parte decree was passed against him in the suit. The explanation offered by the respondents of non-representation of Din Muhammad was that he due to the physical disability could not pursue the case and file the appeal, would be a valid ground to condone the delay. The respondents in proof of the ailment of Din Muhammad placed on record, the Medical Certificate of the doctors, who have been providing him treatment and the High Court having found the same sufficient evidence instead of dismissing the writ petition on the ground of laches, decided it on merits. We, while taking into consideration the nature of ailment of Din Muhammad, predecessor-in-interest of respondents and the dispute between the parties, are of the view that despite of non-representation of defendants in the suit, the trial Court was under legal obligation to attend the important question relating to the maintainability of the suit and the genuineness of the claim of plaintiff IC arising out of the pleadings of the parties, and decide the suit on merits to avoid any injustice to any party in his absence. The interest of administration of justice always demands that one should not be allowed to get any benefit in absence of his opponent to which he is not entitled in law.

5. The petitioners after losing the claim of ownership of house in question uptil the level of High Court in the first round of litigation, arising out of an ejectment petition, filed a civil suit seeking the same relief and the learned Civil Judge without attending the important questions relating to the maintainability of suit and determination of claim of petitioners of the ownership of the house which was in possession of the respondents as owner through their predecessor-ininterest, decreed the suit. The grant of ex parte decree in the suit without determining the title of plaintiff and the pivotal question whether house, subject-matter of dispute, was part of the house of plaintiff or it was an independent house, would be nullity in law, therefore, the High Court in the given facts while keeping in view the concept of substantial justice deemed it proper to interfere in the matter in the writ petition so that no injustice is done to either party and by setting aside the ex parte decree and sending the case back to the Civil Court for decision of the suit on merits committed no illegality. We, therefore, for the sake of complete justice in the peculiar circumstances of the case dismiss this petition with the direction to the trial Court for conclusion of the proceedings in the suit within six months. Leave is refused.