Find a Lawyer

(From the order dated 6-12-1981 of the Lahore High Court in I. C. A. No. 412 of 1981).

Civil Procedure Code (V of 1908)-

0. IX, r. 13--Constitution of Pakistan (1973), Art. 199-Law Reforms Ordinance (XII of 1972), S. 3(2)-Ex pane decree, setting aside of-Alternate remedy under C. P. C. available to petitioner Constitution petition, held, not competent-Intra-Court appeal arising out of such incompetent constitutional petition, held, also incompetent.

Ch. Khalil-ur-Rehman, Senior Advocate Supreme Court assisted by Zafar Pasha Chaudhry, Advocate, instructed by Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Sh. Maqbool Ahmad, Advocate Supreme Court instructed by Rana M. A. Kadri, Advocate-on-Record for Respondents Nos. 1 and 2.

Date of hearing: 14th March, 1983.

M. S. H.' QURESHI, J.-The petitioners had applied under Order IX, rule 13, C. P. C. on 12-11-1976 for setting aside an ex parte decree passed against them. on 11-10-1976 in a pre-emption suit. Petitioner Nos. 1 and 2, who are minors and had been sued without any guardian ad item having been appointed to defend them, challenged the decree through Writ Petition No. 2990 of 1976 and when the same . was admitted they withdrew their application made under Order IX, rule 13, C. P. C. The writ petition was accepted on 1-6-1977, in the result of which the ex parte decree passed against the minors was held to be without lawful authority and of .no legal effect. The respondents' I. C. A. having been dismissed for lack of maintainability, they moved a Civil Petition for Leave to Appeal but later they withdrew the same on 15-5-1979. Meanwhile they moved an application under section 151, C. P. C.. before the trial Court for revival of the suit. The petitioners objected to the application on the ground that in view of the High Court's decision, the civil Court. had no jurisdiction to proceed with the case. But the trial Court overruled to continue with the suit. The petitioners once again came co the 1-sigh Court in X' Petition No. 8124 of 1980 for a declaration that the suit was no longer maintainable and as such the proceeding should be quashed. The petition was dismissed upon the view that the High Court had in the earlier writ petition declared against the validity of the ex parse decree only as far 3s the minors were concerned, that it had not declared against the maintainability of the suit itself and that "the reduction of the ex parte decree to a nullity could not operate to wipe out the proceedings taken earlier in the suit". The petitioners, thereupon, filed Intra-Court Appeal No. 412 of 1981. 1 he I. C. A. Bench agreeing with the learned Single Judge dismissed the appeal in limine as being without merit. Not satisfied, the petitioners have now come to this Court seeking leave to appeal.

2. The case is an instance where resort to the extraordinary constitutional jurisdiction of the High Court has been taken in a matter for which there was adequate alternative remedy available under the ordinary law. Under our Constitution, the High Court can entertain a petition in such jurisdiction only if it was satisfied that no other adequate remedy is provided by law.

Any attempt, therefore, to seek resolution of a controversy arising in a suit, in the constitutional jurisdiction of the High Court by passing the remedy provided under the ordinary law is bound to create confusion and frustrate the purpose -of the constitutional provision. The same must always be avoided.

3. We accordingly sent for the respondents' counsel and after hearing learned counsel for both the parties before us, we have come to the view that the petitioners' Writ Petition (No. 8124 of 1980) was not competent inasmuch as - adequate alternative remedy had been available to them under the Code of Civil Procedure and that the Intra-Court Appeal No. 412 of 1981, arising from an incompetent writ petition was itself incompetent The Intra-Court Appeal was also otherwise not maintainable being violative, of the provision of section 3(2) of the Law Reforms Ordinance (XII of 1972).; The view taken by the High Court in Writ Petition No. 812 of 1980 as also Intra-Court Appeal No. 412 of 1981 touching upon the controversy arising in the suit is inconsequentional. We, however, agree, though for reasons of our own as expressed above, that both the writ petition and the IntraCourt Appeal had been rightly dismissed.

4. We accordingly convert this petition into appeal and dismiss the same with costs.

s .Q Appeal accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.