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Writ Petition No. 133 of 1958, decided on 6th October, 1958

‑Exercise of‑Other remedy (by appeal) open ‑Writ will not issue unless irreparable injury is shown to follow resort to such remedy, even though impugned order is without jurisdiction‑Constitution of Pakistan, Art. 170.

It is against all canons of administration of justice and sound procedure that an aggrieved person should, except under very special circumstances, be permitted to resort to a remedy which is discretionary with the Court instead of a remedy to which he has a right.

Except in a case where resort to alternative remedy would cause irreparable injury to the applicant there is no principle on which the omission to have recourse to it can be condoned by a Court having the discretionary jurisdiction to issue a writ. Even in a case where a Court or a tribunal is exercising a jurisdiction not vested in it by law and where an appeal or revision is allowed by law against the order of that Court, it would be wrong on the part of the High Court to deprive the proper appellate or revi sional Court of its jurisdiction and assume it itself.

Where the petitioner had not appealed from the impugned order of the Deputy Rehabilitation Commissioner, and there was no question of any irreparable injury resulting from the remedy by appeal, the High Court refused to exercise its discretionary writ jurisdiction.

The Tariq Transport Company, Lahore v. The Sargodha‑Bhera Bus Service P L D 1958 S C (Pak.) 437 rel.

S. A. Haroon and others v. The Collector of Customs, Karachi and another P L D 1957 (W. P.) Kar. 576 and Hussain Haji Ahmad v. S. Arshad Ali and another P L D 1957 (W. P.) Kar. 874 ref.

Z. H. Lari for Petitioner.

S. Mehmud Raza and Nasiruddin for Respondents.

Date of hearing : 6‑10‑1958.

One Doctor Zaidi was the allottee in possession of the pre mises No. 389/G/1 City Survey No. J. M. 421, Jamshed Quarters, Karachi which is an evacuee property. Several persons including the respondent No. 3, Mr. Jamil Ahmad Siddiqui, applied to the Deputy Rehabilitation Commissioner praying for the cancellation of the allotment in favour of Dr. Zaidi and allotment in their own favour. These applications were rejected by the Deputy Rehabili tation Commissioner ; but on appeal by the third respondent the Additional Rehabilitation Commissioner, by his order dated the 12th February 1958, cancelled the existing allotment and allotted the premises to the third respondent. The petitioner alleges that he had acquired possession of a part of the premises through Dr. Zaidi in December 1954 and of the remaining portion in March 1957. He was admittedly not a party to the proceedings either before the Deputy Rehabilitation Commissioner or before the Additional Rehabilitation Commissioner. He says that when he came to know of the ejectment proceedings pending before the Assistant Rehabilitation Commissioner against Dr. Zaidi on the 19th February 1958 he appeared before the Additional Rehabili tation Commissioner on the 20th February 1958 and was allowed four days' time to file objections which he did on the 24th February 1958. As the Additional Rehabilitation Commissioner passed no order on the objections the petitioner approached the Rehabilita tion Commissioner who directed the Deputy Rehabilitation Commissioner to dispose of the objections. The Deputy Rehabili tation Commissioner rejected the objections by his order dated the 17th March 1958. The petitioner filed the present petition on the 31st March 1958 for a writ quashing the order of the 12th February 1958 passed by the Additional Rehabilitation Com missioner.

It is not denied by Mr. Lari, learned counsel for the petitioner, that it was open to the petitioner to have filed an appeal against the order passed against his client by the Deputy Rehabilitation Commissioner on the 17th March 1958. But he has not availed himself of that remedy. It is against all canons of administration of justice and sound procedure that an aggrieved person should, except under very special circumstances, be permitted to resort to a remedy which is discretionary with the Court instead of a remedy to which he has a right. Mr. Lari has attempted to overcome this objection to the present petition by appealing to certain observa tions made in two decisions of this Court. The first case is S. A. Haroon and others v. The Collector of Customs, Karachi and another (P L D 1957 Kar. 576). One of the learned Judges who constituted the Division Bench which originally heard the case observed :‑

"My view on the point is that once it is found that the impugned order is vitiated by an error of law, the apparency of which is patent on the order itself, or it is vitiated by the dis regard of the principle of natural justice, it must be quashed and that the writ of certiorari should not be refused merely on the ground that there is an alternative remedy by way of appeal or revision."

The other learned Judge equally and emphatically held :‑

"I am clearly of the opinion that the proper remedy for the petitioners was to prosecute‑their appeal or go further in revision if necessary."

The third learned Judge before whom the matter came even tually was of the opinion the petition should be dismissed on merits.

In the other case Hussain Haji Ahmad v. S. Arshad Ali and another (P L D 1957 Kar. 874), a Division Bench held :‑

"In our opinion writs of mandamus, certiorari, and for the matter of that, all high prerogative writs are ordinarily not issued where there exists an alternative remedy, equally efficacious and adequate. But this is not an inflexible rule and where Courts think it just and convenient they are entitled to issue such writs. The fact that ordinarily the Court does not issue such writs in such circumstances is not due to their want of jurisdiction . . . But where an inferior tribunal assumes jurisdiction and the want of jurisdiction is patent on the face of it ; where the proceedings complained of are against the princi ples of natural justice and where the alternative remedy is too costly or ineffective or entails such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless, this ordinary rule will not be an obstacle in issuing an appro priate writ."

Mr. Lari has not alleged any lack of jurisdiction or wrong assumption of it by the learned Additional Rehabilitation Com missioner in passing the order of the 12th February 1958. He contends that it is vitiated by certain errors of law. Assuming this to be so and assuming the validity of the correctness of the observations made in Husain Haji Ahmad's case I am unable to see how that ruling can help Mr. Lari. He has not pointed out any circumstances to show that it is "just and convenient" that a writ should be issued even though his client has not availed himself of the appeal against the impugned order which was available to him. Nor has it been shown that the order in question con travenes any "principle of natural justice" or that the alternative remedy is costly or ineffective or would entail such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless.

Except in a case where resort to alternative remedy would cause irreparable injury to the applicant I am unable to see any principle on which the omission to have recourse to it can be condoned by a Court having the discretionary jurisdiction to issue a writ. Even in a case where a Court or a tribunal is exercising a jurisdiction not vested in it by law and where an appeal or revision is allowed by law against the order of that Court, it would be wrong on the part of the High Court to deprive the proper appellate or revisional Court of its jurisdiction and assume it itself. I am fortified in this opinion by the observations of the Chief Justice of Pakistan in The Tariq Transport Company Lahore v. The Sargodha‑Bhera Bus Service (P L D 1958 S C (Pak.) 437). His Lordship observed :‑

"Where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ

"It is wrong on principle to entertain, petitions for writs, except in very exceptional circumstances, when the law provides a remedy by appeal to another Tribunal fully competent to award the requisite relief. Any indulgence to the contrary is calculated to create distrust in statutory tribunals of competent jurisdiction and to cast an undeserved reflection on their honesty and competency and thus to defeat the legislative intent."

It would be a totally different matter where a tribunal or a Court, whose order is final and is not subject to appeal or revision illegally assumes jurisdiction to try a matter. In such a case it would be obviously utterly futile to wait for the conclusion of the proceeding before the tribunal or Court.

For the above reasons I am clearly of the opinion that this Court should not exercise its writ jurisdiction for the benefit of the petitioner. The petition is dismissed.

A. H. Petition dismissed.

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