CH. IJAZ AHMAD, J.--- The brief facts out of which present revision petition arises are that the petitioner filed 'a suit for specific performance of the agreement to sell in the Court of Civil Judge 1st Class, Lahore along with an application for interim relief in 22-12-2004 on the basis of oral agreement to sell executed on 07-02-2004 between the petitioner and the respondent for consideration of Rs. 22,00,000/-. The respondent has also received Rs. 5,00,000/- as earnest money. After execution of the agreement in-question, the petitioner came to know that the respondent is going to sell the property in-question to any other person instead of the petitioner.
The petitioner being aggrieved filed the aforesaid suit. The learned Trial Court dismissed the application of the petitioner for ad-interim relief vide order dated 05-04-2005. The petitioner being aggrieved preferred an appeal in the Court of learned Addl. District Judge, Lahore, who dismissed the same vide judgment dated 01-06-2005. Hence, the present revision petition.
2. The learned counsel of the petitioner submits that impugned order and judgment are not in accordance with record available before the Courts below. The respondent has admitted in paragraph No. 3 of written statement that the possession of the property in-question is with the petitioner as tenant and this fact was not considered by both the Courts below in its true perspective specially the first appellate Court has categorically mentioned in paragraph No.6 of the impugned judgment that the C.L.R. petitioner-appellant is not in possession of the property in-question, which is not inconsonance with record available before the Courts below. He further submits that the petitioner has attached affidavit along with revision petition in the presence of whom the petitioner paid Rs.5,00,000/- to the respondent in terms of agreement to sell dated, 07-122Q04, therefore, the impugned order and judgment of both Court below are not sustainable in the eye of law. In-fact both the Courts below have decided the stay application of petitioner without judicial application of mind, which is condition precedent. He further .Submits that impugned judgment of first appellate Court is not in consonance with Section 10 of Contract Act. He further submits that impugned order and judgment are not in accordance with law laid down by the superior Courts. In support of his contention, he relied upon "Ali Muhammad Khan . Vs Riaz-ud-Din Khera"-(PLD 1981 Karachi 170).
3. I have given my anxious consideration to the contention of learned counsel of the petitioner and perused the record.
4. It is admitted fact that the petitioner has not secured receipt with regard to payment of Rs.5,00,000/- from the respondent as claimed by the petitioner that the petitioner has paid Rs.5,00,000/- to the respondent as earnest money in terms of agreement to sell. It is also settled principle of law that the parties are bound by their pleadings. The affidavits attached by the petitioner, are not mentioned in the grounds of appeal filed before the first appellate Court, therefore, I am not inclined to consider this ground with regard to payment qua affidavit which is not in consonance with law laid down by the Honourable Supreme Court in "Mural Begum vs. Muhammad Rafique, etc." (PLD 1974 S.C.322). The stand taken by the petitioner in the contents of plaint, world be proved by the petitioner by producing evidence. Both the Court below have refused to exercise discretion in favour of the petitioner with cogent reasons and this Court has very limited jurisdiction to interfere in the area of discretion, where the Courts below have exercised their discretion with cogent reasons as per law laid down by this Court in "Agha Muhammad Afzal and 2 others. Vs. Municipal Corporation, Rawalpindi and 10 others" (PLD 1992 Lahore 448). The Honourable Supreme Court in "Shahzada Muhammad Umar Beg. Vs. Sulatan Mehmood Khan and another (PLD 1970 S.C. 139) has laid down three ingredients for grant of ad-interim relief, which are as follow:-
(i) The petitioner has to show his good prima-facie case in his favour.
(ii) The balance of convenience is in his favour.
(iii) The petitioner is likely to suffer an irreparable loss, if injunction shall not be granted.
The aforesaid proposition of law is also supported by law laid down by this Court in "Mis. National Construction Ltd. Vs. Aiwan-i-lqbal. Authority, Lahore" (PLD 1.992 Lahore 86). The principle of lis- pendense is also applicable in this case. I have re-appraised the record attached by the petitioner with the grounds of revision petitioner; I do not find any infirmity or illegality committed by both the Courts below. The Privy Council has also laid down parameters to disturb the findings of the Courts below while exercising power under Section 115 of CPC in "N.S.Vankatagiri Ayyangar and another. Vs. The Hindu Religious Endowments Board Madras" (PLD 1949 P.C. 26). The judgment of the Privy Council was considered and relied upon by this Court- in "Board of Intermediate & Secondary Education, Lahore. Vs. Syed Khalid Mehmood." (NLR 1985 Civil 114).
5. It is pertinent to mention here that the judgment of this Court is upheld by the Honourable Supreme Court in C.P. No. 1146 of 1984 vide judgment dated 31-03-1985 which was re-affirmed and approved by the Honorable Supreme Court in "Board of Intermediate and Secondary Education, Lahore vs. Ghulam Qadir" (PLD 1988 S.C. 625).
For the Petitioner: Shaukat Ali Saqib, Advocate.
For the Respondents No.1, 4 and 5: Mian Muzaffar Hussain, M. Hanif Khatana, Khawaja Muhammad Afzal and Nazir Ahmad Qureshi, Advocates.
Date of hearing: 12th September, 2005.
CH. IJAZ AHMAD, J.--- Brief facts of the case out of which the present writ petition arises are that the land in question allegedly allotted to Ghulam Hussain-respondent, by the Settlement Department.
Mutation No.2747, was also sanctioned in favour of Ghulam Hussain- respondent, which mutation was subsequently cancelled by the Settlement Department. Ghulam Hussain-respondent, being aggrieved filed a suit which was decreed and maintained up to the Apex Court. Consequently, mutation was sanctioned in favour of Ghulam Hussain on 15.3.1997. The petitioner purchased the land in question from Ghulam Hussain, through sale-deed which was executed on 12.4.1988, allegedly registered on 27.4.1988,. And mutation was also sanctioned in favour of the petitioner on 12.5.1988. Petitioner submitted an application before the Lahore Development Authority, for exemption of the plot in question with regard to the land in dispute. The L.D.A. Failed, to decide the application of the petitioner. The petitioner being aggrieved, approached this Court through this Constitutional-petition with the following prayer:- "that the alleged supplementary award (Annexure-S) and the colorable mutation No.3810 aimed at to deprive the petitioner from his ownership of 12-Kanals 8-Marlas of land situated in Khasra No.2444, 2445, 2448 and 2455 of Mauza Babu Sabu, Tehsil and District Lahore, are illegal, void and based upon mala fide hence of no legal effect qua the rights of the petitioner who was never heard. As a consequence thereof this Honourable Court may very kindly be pleased to direct the respondents to action accordance with law and exempt and ' allot the allocated plots Nos.107, 108,109 measuring 1-Kanal each situated in Block-G and 361 and 365, measuring 7-Marlas each in Block-J, Sabzazar Lahore may very kindly be directed to be exempted and allotted to the petitioner."
2. The learned counsel for the petitioner submits that respondent filed Constitutional petition before this Court with regard to other land of the respondent which was acquired by the WASA. This Court directed the Land Acquisition Collector to announce the Award of the land in that writ petition. The L.D.A./ Collector, announced the Award, including land of the petitioner, instead of the land mentioned in that writ petition. Respondent Ghulam Hussain, mala fidely with the connivance of the L.D.A., wanted to usurp the land of the petitioner. L.D.A., also failed to discharge their statutory duties. He further submits that petitioner filed civil suit against the respondents which was withdrawn by the petitioner with permission to file fresh one.
3. The learned counsel of the respondents submits that Ghulam Hussain respondent has become owner of the property in question in terms of mutation which was sanctioned on 15.3.1997, according to the petitioner, he purchased the land in question on 12.4.1988. This fact alone is sufficient that claim of the petitioner is not sustainable in the eyes of law.
4. The respondent L.D.A. Have filed report and parawise comments in obedience of the direction of this Court and took a stand that matter is still pending adjudication between the private, therefore, respondent, L.D.A., is not in a position to decide the application of the petitioner in case the application is decided by the L.D.A., then L.D.A., will suffer irreparable loss by exempting the plot with regard to the land in question to respondent Ghulam Hussain as well as to the petitioner.
5. The learned counsel for the petitioner in rebuttal reiterated its arguments submits that matter has been finalized upto the Apex Court with regard to the land in question, therefore, position automatically reverted to the stage where the mutatioh No.2747 was sanctioned in favour of Ghulam Hussain, by the Settlement Department, from whom the petitioner has purchased the same in 12.4.1988.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce reply of L.D.A. Of paras XV & XV1 of the Constitutional petition to resolve the controversy between the parties:- "That filing of writ petition No.16331/2002, is not denied. In compliance with the order in the said writ petition, the Land Acquisition Collector announced the Award in the name of original owner Mr. Ghulam Hussain. The LDA objected this Award on the ground that Ghulam Hussain has already sold his land to different vendees measuring 24 kanals and LDA has granted exemption to his vendees, therefore, Ghulam Hussain, the original owner is not entitled for any compensation of exemption at this stage. The Land Acquisition Collector announced the award of the ground that mutation of his vendees to whom LDA granted exemption has been cancelled by the Revenue Department.
Whereas the stance of L.D.A. Is that sale deeds of their vendees still stands in their names, which have not been cancelled by the Civil Court. In case the award is announced in the name of Ghulam Hussain, L.D.A., will have to suffer double loss, one by granting exemption to his vendees and on the other hand the original owner-writ petitioner. Record reveals that his vendees moved to the Civil Court against Award of LAC in titled case Asad Shuja Siddiqui vs. L.D.A. Since the present writ petitioner has also Moved the Civil Court, therefore, the writ petition is not maintainable in the eyes of law:
7. Mere reading of the aforesaid reply read with the contents of the Constitutional petition, it is crystal clear that petitioner has concealed the material facts from this Court, coupled with the facts that civil suit is still pending adjudication between the private parties before the competent Court. It is settled principle of law that Constitutional jurisdiction is discretionary in character that he who seeks equity, must come to the Court with clean hands. The petitioner has concealed material facts from this Court as depicts from the reply of paras. 15 & 16, of the parawise comments, filed by the L.D.A., on 16.3.2005, therefore, I am not inclined to exercise my discretion in favour of the petitioner on the well-known principle laid down by the superior Court in the following judgments:-
(1) Principal KEMC Lahore Ghulam Mustafa etc. (1983 SCMR 196).
(2) Muhammad Umar Saeed vs. Govt. Of West Pakistan another. (1969 SCMR 141).
(3) Nawab Syed Raunaq Ali etc. Vs. Chief Settlement Commissioner and others. (PLD 1973 S.C. 236).
(4) G.M. Malik Chairman vs. Province, of Punjab etc. (1990 CLC 1783).
(5) Kh. Muhammad Sharif vs. Federation of Pakistan etc. (PLD 1988 Lahore 725).
(6) Federation of Pakistan etc. Vs. Haji Muhammad Saifullah Khan etc. (PLD 1989 SC 166);
(7) Rana Muhammad Arshad Commissioner vs. Add!. Commissioner Revenue etc. (1998 SCMR 1462).
8. As mentioned above, civil suit is pending adjudication, it is a good ground not to exercise discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in Ch. Tanbir Ahmad Siddiky vs. Province of East Pakistan and others (PLD 1968 S.C. 185). Even otherwise in case the contents of the writ petition and parawise comments are put in juxta-position, then it brings the case of the petitioner in the area of disputed questions of facts. This Court has no jurisdiction to resolve the disputed question of facts in Constitutional jurisdiction as the law laid down by the Honourable Supreme Court Haji Muhammad Younas Khan vs. Province of NWFP etc. (1993 SCMR 618).
9. In view of what has been stated above, this Constitutional petition is disposed of accordingly.
However, the competent Civil Court shall decide the civil suit without being influenced by the observations of this Court in accordance with law. Even otherwise petitioner has alternative remedy to file a civil suit before a competent Court for resolution of disputed questions of fact, therefore, petitioner is well within his right to avail the alternative remedy by filing a civil suit, if so, advised. Disposed of with the aforesaid observation.