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Constitutional Petition No.D/277 of 1986, decided on 18th March, 1987.
---Art.199--Constitutional jurisdiction, exercise of--Where alternate adequate remedy of filing civil suit for recovery of disputed amount was available to petitioner, constitutional petition, held, would not be maintainable.
Aftab Alvi for Usman Ghani Rashid for Petitioners.
-The petitioner claims to have deposited ,a sum of Rs.1,05,000 at the time of the auction of octroi contract held by District Council, Dadu on 10-6-1978 and thereafter. However, the contract was not given to the petitioner and the same was given to one Gut Din. The petitioner claimed the refund of the deposit but it was rejected by the District Council as well as by the Deputy Commissioner. Thereafter the petitioner filed appeal before the Appellate Tribunal Local Councils Sind in January, 1984 which was dismissed on 2-2-1986.
We are afraid that this petition cannot furnish any relief to the petitioner. The petitioner had claimed to be a firm and Gut Dir. was one of its partners at the time of giving of contract. The District Council has treated the sum of Rs.1,05,000 deposited at the time of the initial contract as the deposit made on behalf of Gut Din at the time of giving the second contract to Gut Din. The question which will require consideration would be whether as the partner of the firm Gut Din had the authority of representing the firm and whether District Council could treat the sum of Rs.1,05,000 deposited by the petitioner as the deposit of Gut Din in his capacity as the partner of the firm. This would require evidence and, therefore, this petition is hardly a remedy for the same. The District Council had treated the deposit of Rs.1,05,000 as the deposit made by Gut Din. The petitioner should file a suit against Gut Din and the District Council and if it could establish by reliable evidence that Gut Din had no authority to make representation on behalf of the firm as he is alleged to have ceased to be the partner of the firm, then there may be a reasonable possibility of the success of the petitioner. The petition is not an appropriate remedy in the matter. Moreover, we have not been able to see any illegality in the order made by Mr.Salahuddin Mirza while dismissing the appeal of the petitioner on the ground of the petitioner not disclosing the entire facts.
Consequently this petition is found to be not sustainable because the petitioner had the adequate remedy of filing a civil suit for recovery of the amount which he should have availed of. This petition is dismissed in limine. Misc. Application is also dismissed.
We would, however, caution that in case a suit is filed by the petitioner and the same is entertained then the observations made by the Appellate Tribunal of Local Councils should not be treated as observations made on the merits of the case.
H . B . T . / M-250 / K Petition dismissed.
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