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Constitutional Petition No. 232 of 1982. decided on 25th August, 1985.

‑‑S. 4‑‑Reference of dispute to Tribunal‑‑Tribunal referring matter to Arbitrator on mutual consent of parties‑‑Defendants objecting that except one, no other defendant was served with notices or filed written statement and in absence of such non‑service defendant's case was referred to Tribunal and decided‑‑Power‑of‑attorney by absentee defendants in favour of one conducting case in Court found on file‑ Objection of non‑service of notice, non‑filing of written statement and non‑participation in referring dispute to Arbitration, held was not only devoid of force but also incorrect assertion having no weight and thus repelled.

‑‑‑S. 4‑‑Evidence‑‑Estoppel‑‑Tribunal referring dispute to Shariah at request of parties‑‑Course adopted by Tribunal by referring matter to Shariah though contrary to provisions of Ordinance 1 of 1968, held, could not be subsequently objected to as petitioners were estopped by their conduct..‑‑[ Estoppel].

Abdul Wahab and others v. Habib Ali and others P L D 1969 Lah. 365; A I R 1932 P C 251; A I R 1920 P C 139; A I R 1936 Mad. 856; A I R 1934 Lah. 176(2); A I R 1941 Nag. 271 and P L D 1958 S C 96 ref.

‑‑‑Art. 9‑‑Constitutional jurisdiction, exercise of‑‑Limitation‑‑Point of limitation being mixed question of law and fact, held. Required appreciation of evidence ‑Such question of limitation having not been raised before Tribunal, High Court refused to evaluate plea of limitation in constitutional jurisdiction.

Art 9‑‑Constitutional relief‑ Availability of‑‑Petitioners not coming with clean hands before Court, by concealing facts, held, were not entitled to relief claimed in constitutional petition which was of, discretionary nature.

Muhammad Zafar for Petitioners. Respondents Nos. 1 to 12 in person.

Nemo for Respondents Nos.13 to 15..

Date of hearing: 18th August, 1985.

This petition is directed against .the order, dated 30‑7‑1980 passed by the respondent the Assistant Commissioner Pishin, the order, dated 30‑11‑1980 passed by Additional Commissioner, Quetta Division in appeal and order, dated 15‑7‑1982 passed by Member Board of Revenue‑11 Baluchistan Quetta in revision petition under the Civil Law (Special Provisions) Ordinance 1 of 1968 (hereinafter referred to as the Ordinance).

2. The facts giving rise to this petition are that on 19th March, 1979, Khuda‑e‑Rahim the predecessor‑in‑interest of the respondents 1 to 12 filed a suit against the petitioners and their brothers Hidayatullah (not party before us) and Sadullah Jan (dead) in the Court of Assistant Commissioner Pishin for effecting mutation of land of 1/2 Sai‑Ab water situated in Mahal Lohri Bazar Dilshoora of Tehsil Pishin on strength of an unregistered sale‑deed, dated 20th April, 1961 executed by their father Akhunzada Muhammad Issa Jan. The petitioner No.l contested the suit and filed his written statement on 25th April, 1979 repudiated his claim and denied execution of the abovesaid sale‑deed. However, the Assistant Commissioner referred the matter to the Tribunal for its findings under the Ordinance. On 27th February, 1980 at the request of the parties the matter was referred to Shariah (Sole Arbitrator) Maulvi Abdul Zahir for decision under Shariah. On 1st May, 1980 the abovesaid Shariah, returned the Award to the Tribunal in the words as under:‑

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Unanimously the Tribunal agreed with the abovesaid award and recommended for passing of the decree. On 3‑7‑1980 the Assistant Commissioner confirmed the recommendation of the Tribunal and passed the decree in favour of the respondents' father.

3. Being aggrieved and dissatisfied against the order of the Assistant Commissioner the petitioners alongwith their deceased brother Sadullah filed appeal before the Additional Commissioner, Quetta against Khuda‑e Rahim and arrayed their own brother Hidayatullah as respondent also. On 30‑11‑1980 the learned Additional Commissioner was pleased to dismiss their appeal and maintained the order of the Assistant Commissioner. Against that order again they filed a revision petition before the Member Board of Revenue Baluchistan who also refused. to interfere with the orders and in result thereof dismissed their revision on 15th July, 1982. The abovesaid order has been assailed in this Constitutional Petition before us. On 16th April, 1984, Khuda‑e‑Rahim refuted the contentions of the petitioners and filed his counter‑affidavit in the words as under:‑

"(1) Contents of paras. 1 to 3 of the petition are not denied. The suit filed by the respondent was based on sound grounds of law and facts. The deed regarding sale was varitably executed and the brother of the petitioners namely Hidayatullah had admitted the execution of the refered deed in his statement before Assistant Commissioner, Pishin and Shariah."

(2) It is incorrect to infer that in the suit filed by the respondent in the Court of Assistant Commissioner, Pishin for mutation of the land Mr. Hidayatullah was in collusion with the respondent. The actual fact is that Mr. Hidayatuilah (brother of the present petitioners) had narrated the true ,glimpse of facts before the Assistant Commissioner, that the deed regarding sale had in fact been executed by his late father Akhunzada Muhammad Issa Jan.

(3) The contents of para. 5 of the constitutional petition are absolutely incorrect and hence vehemently denied. The petitioners Nos. 2 to 4 were represented in the suit filed before Assistant Commissioner, Pishin, through petitioner No.l (Mr. Nasrullah Jan). Power‑of‑Attorney exists in record.

(4) It is respectfully submitted that the case pending before the Assistant Commissioner was referred to the "Shariah" by mutual consent of the parties. The petitioner No.(1) had signed in the application for appointment of Shariah (Annexure 'C'), as also attorney for his brothers. The judgment of the "Shariah" was lawfully adopted by the Tribunal.

(5) The Assistant Commissioner, Pishin had lawfully decreed the suit of the respondent No.l and the other respondents had lawfully upheld the judgment of the Assistant Commissioner.

(6) It is vehemently denied that any of the petitioners have remained unheard.

It is, therefore, respectfully prayed that the constitutional petition may kindly be dismissed."

However, Muhammad Rahim died during pendency of the petition and his legal heirs, the respondents Nos. 1 to 12 were brought on the record. ,

4. We have heard Mr. Muhammad Zafar Advocate for the petitioners and Mr. Muhammad Karim the respondent No. 1 who also held the power‑of‑attorney for the remaining respondents No.2 to 12. The respondents Nos. 13 to 15 did not contest the petition.

5. The learned counsel for the petitioner in support of his petition raised the following grounds:

(i) That except Nasrullah no other legal heirs of Muhammad Issa Jan was served with the notices or filed their written statements before the Assistant Commissioner and in their absence the case was referred to the Tribunal and decided.

(ii) That only petitioner Nasrullah consented for reference of the dispute to Shariah and none of the other petitioners either were present or had consented to for its reference to Shariah.

(iii) That the proceedings before the Tribunal and Assistant Commissioner Pishin were conducted in flagrant violation of the provisions of the Ordinance.

(iv) That the claim of the respondents Nos. 1 to 12 was time‑barred.

6. On the other hand the respondent No.l while repudiating the contentions raised by the petitioners submitted that:‑

(i) The petitioner Nasrullah was .given a power‑of‑attorney on 3‑5‑1979 by other legal heirs of late Akhunzada Issa Jan hence they all were represented by him before the Tribunal as well as before Shariah.

(ii) That the petitioners themselves had called for the procedure to be adopted by the Tribunal hence they were estopped to challenge it.

(iii) That the unofficial respondents were in possession of the land and water hence the suit was competent.

7. To support hi first two contentions the learned counsel for the petitioners at the out set pointed out to the written statement Annexure 'B' signed and filed by petitioner Nasurllah Jan only and by none else. Besides he further submitted, that the application. dated 27‑2‑1980 requesting for reference of the dispute to Snariah also bore his signature and none of the other petitioner. His contention is belied by the power of‑attorney, dated 3‑5‑1979 executed by the petitioners Nos. 2 to 4 authorizing petitioner No.l to make appearance on their behalf. It has been produced by the respondent Muhammad Karim before this Court and it is kept on this file. On face of it the petitioners Mohibullah, Naqeebullah and Mujeebullah had authorized the petitioner No.l Nasrullah to make appearance on their' behalf before the Tribunal and other functionaries working under the Ordinance. Not only that but even through the same document, they had authorized him to appoint a Shariah also. Besides in his counter‑affidavit filed before this Court Khuda‑e‑Rahim had specifically everred that the petitioners Nos. 2 to 4 were represented before the Assistant Commissioner Pishin by petitioner No. 1 through a power‑of‑attorney which was available on record. It is why in the application for appointing Shariah on 27‑2‑1980 the petitioner Nasrullah signed it as attorney. This averment of the respondents Nos. 1 to 12 has not been denied by any rejoinder by the petitioners. Obviously it appears that the petitioners had wilfully concealed the factum of the execution of the power‑of‑attorney by the petitioners Nos 2 to 4 in favour of petitioner No.l from this Court. Hence the objections raised by the learned counsel for the petitioner that petitioners Nos. 2 to 4 were neither heard by the Assistant Commissioner nor by the Shariah is not only devoid of force but also an incorrect assertion hence it has no weight and repelled according.

8. In su pport of his third contention the learned counsel for the petitioners submitted that nder the provisions of the Ordinance the Tribunal after receiving the reference from the Assistant Commissioner had to strictly follow the procedure laid down in sections 4 and 8 of the Ordinance and then only returned its finding and there was no power vested in them to have referred the matter to an Arbitrator or Shariah Besides he submitted that once having sent the matter to Shariah the Tribunal had no jurisdiction to make the Award as rule of the Court. The contention raised by the learned counsel misconceived and devoid of force and repelled. In that respect, it may be pointed out that the Tribunal at their own request had referred the matter to the Arbitrator. Admittedly the course contrary to the provisions of the Ordinance was adopted by the Tribunal at the request of the petitioners who cannot raise such objection subsequently which objection by their own conduct and acquiescence .on the principles of estoppel are not sustainable in law.

9. In case of Abdul Wahab and others v. Habib Ali and others reported in P L D 1969 Lah. 365 the Lahore High Court has elaborately dealt with the proposition and relied upon the decisions of the Courts:‑

(i) A I R 1932 P C 251.

(ii) A I R 1920 P C 139.

(iii) A I R 1936 Mad. 856.

(iv) A I R 1934 Lah. 176(2).

(v) A I R 1941 Nag. 271.

(vi) P L D 1958 S C 96.

10. On going through the above‑said authorities the High Court held. "that once a mode (procedure) is adopted by the High Court on the) request of. the parties, the decision given in pursuance of that mode should be given effect to; a necessary corollary of this rule will be: that the same parties are estopped from subsequently challenging that mode of decision in appeal. We also adhere to the same view taken by the Lahore High Court. In the instant case that the petitioners themselves had asked the Tribunal to refer the matter to shariah hence subsequently it cannot lie in their mouth to say that the Tribunal followed a procedure) contrary to the provisions of the law.

11. The last contention raised by the learned counsel for the petitioners is regarding filing of the suit beyond period of limitation. In our view the point of limitation in the instant case is a mixed question of law and facts. It obviously requires appreciation of evidence. Besides no such objection was raised by the petitioners before the Arbitrator. Hence we are not inclined to discuss or enter upon the evaluation of this issue at this stage in our constitutional jurisdiction.

12. As the petitioners had themselves requested for reference of the dispute to Shariah who recorded evidence of the witnesses and after hearing the parties returned the award, hence no exception could be taken to the decision of the Assistant Commissioner, dated 3‑7-1980 based on the Award.

13. Additionally, the petitioners had not come in clean hands before, the Court they have concealed the facts regarding the power‑of attorney executed by Mohibullah, Sadullah and Naqeebullah in favour of the petitioner Nasrullah from this Court, hence even otherwise they are not entitled to relief claimed in the petition.

14. For the reasons shown herein above we are not inclined to interfere with the impugned orders passed by the respondents Nos. 12, 13 and 14. In result the petition stands dismissed but with no order as to costs.

A. A. Petition dismissed

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