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Civil Appeals Nos. 104 and 105 of 1984, decided on 3rd April, 1984.

(On appeal from the same Judgment of Peshawar High Court, dated 6‑2‑1984 in Writ Petition No. 85 of 1984)

‑‑ Arts. 185 (3) & 199‑Landlord and tenant‑Leave to appeal granted to consider questions (1) whether High Court should have declined to exercise discretionary constitutional jurisdiction on ground of non payment of rent by petitioner since 1976 ‑ when position, undisputed by respondent, was that it was paid throughout at the rate fixed per annum per Jareeb, (2) whether Revenue Court had no jurisdiction to enhance rent fixed prior to 1976.‑[Landlord and tenant].

---Art. 199‑Landlord and tenant‑Landlord not denying that tenant (petitioner) had paid/deposited rent since 1976 at fixed rate per annum per Jareeb which according to landlord was the only amount payable‑Finding of High Court that petitioner contesting claim of landlord for enhancement of lease money since 1976 and as petitioner had not deposited lease money at enhanced rates, therefore, petitioner paid no lease money to landlord uptil now, thus petitioner had not come to Court with clean hands‑Held, finding of High Court that in circumstances, petitioner moved High Court with un clean hands was not correct in view of admitted position that petitioner had paid fixed rent since 1976‑Respondents were seeking enhancement and till adjudication of question of ‑increase, petitioners were supposed to pay lease money which was sought to be increased.

‑‑ Art. 185(;)‑High Court in constitutional jurisdiction not adequately dealing with points raised by appellant‑Appeal merited acceptance on this short ground.

Zahoor Muhammad Qureshi, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record (absent) for appellant (in both appeals).

A. Rahman Khan, Advocate Supreme Court and Nur Ahmad Khan, Advo cate‑on‑Record (absent) for respondents (in both appeals).

Date of hearing : 3rd April, 1984.

‑The two appeals through special leave of this Court, are directed against the judgment dated 6‑1‑1984 of the Peshawar High Court ; whereby two Constitutional Petitions filed by the appellants in these cases were dismissed.

Leave was granted to examine the following questions: ‑

"(a) Whether the High Court should have declined to exercise dis cretionary writ jurisdiction on ground of non‑payment of rent by the petitioner since 1976 when the position undisputed by the respondent, was that it was paid throughout this period at the rate of Rs. 80 per annum per Jareeb and

(b) Whether the Revenue Court had no jurisdiction to enhance the rent fixed prior to 197 6."

We have heard the learned counsel for both the parties. It is not denied from the respondent side that the appellants had paid/deposited the rent since 1976 at the rate of Rs. 80 per annum per Jareeb which according to the appellants was the only amount payable. On the contrary it has been observed in the impugned judgment of the High Court that, "The petitioners (present appellants) have been contesting the claim of the land lords for the enhancement of the lease money since 1976 and it appears hat no lease money had been paid to the landlords until now. In the circumstances, the petitioners have not come to the Court with clean hands. The case of the petitioners rests on mere technicalities which had no relation to equity and justice."

The finding that the appellants moved the High Court in its cons titutional jurisdiction with unclean hands, with respect, it is pointed out, in view of the admitted position before us that since 1976 the lease money was being paid, would not be correct. It was a case where the respon dents were seeking the enhancement of the lease money. Till final of the question of increase the appellants were supposed to pay the lease money which was adjudication increased i. e. Rs. 80 per annum per Jareeb. In this context, therefore we are. unable to uphold the finding regarding unclean hands as the appellants continued to pay (since 1976) the lease money at the rate of Rs. 80. It would have been different if they would not have paid the same and would have sought relief from the High Court regarding the increase demanded by the respondents up to Rs. 500 per annum per Jareeb, which stood accepted on the revenue side. Accordingly the writ petitions could not be dismissed on ground of un clean hands of the appellants.

It was urged from the respondents side that the questions raised be fore the High Court were examined on merits. This plea is also not well founded because after noticing that the appellants had approached the Court with unclean hands, the main points raised in the Constitutional Petition were mentioned only cursorily. The question of jurisdiction was not dealt with adequately. After mentioning the relevant provisions the plea was repelled without any discussion. Similarly on merits after notic ing the point it was observed that there were no equities in favour of the petitioners and the writ jurisdiction could not be exercised in aid of injustice. It was further observed that the petitioners are not entitled to the discretionary relief in the constitutional jurisdiction even if the technical objection taken on their behalf had succeeded before us." With respect, if the finding regarding unclean hands is removed the points raised in the Constitutional petition filed by the appellants have not been adequately dealt with. The appeals accordingly merit acceptance on this short ground.

It needs to be noticed that the parties also sought time to discuss the question of settlement out of Court. The appellants offered to increase the lease money to Rs. 300 per annum per Jareeb while the response from the opposite side was that the appellants would be refunded certain amounts paid by them to the landlords and that on this condition the appel lants should not insist on continuing as tenants on the land in dispute. Despite the genuine effort of both the learned counsel the parties did not reach any settlement. We accordingly heard the appeals on merits.

With the above observations both the appeals are allowed. The matter is remanded to the High Court for fresh decision. There shall be no order as to costs.

M. Z. M. Appeal allowed.

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