RAHMAT HUSSAIN JAFFERI, J.--- Brief facts given rise to the present Constitution Petition are that the petitioner was tenant of the respondent No, 2 in respect of shop No, 148 situated on Ground floor of Saddar Cooperative Market Abdullah Haroon Road, Saddar, Karachi at monthly rent of Rs, 200/- under a tenancy agreement dated 01.1.1999. On 27.7.1998 the petitioner applied to the respondent No, 1 for allotment of the said shop on ownership basis. While the application for the allotment on the shop of the petitioner was pending the respondent No, 3 executed a registered lease deed in favour of the respondent No, 5 on 22.4.1999. It is alleged that the respondent No, 3 was not competent to execute such deed in view of the-rule laid down by the Hon' able Supreme Court of Pakistan in the case of Muhammad Ashraf All v. Muhammad Nazir (1986 SCM R 1096), therefore, the lease executed in favour of the respondent No, 5 is a void document which does not confer any right, title or interest in favour of the respondent No,
5. The petitioner further alleged that the respondent No, 5 filed ejectment proceedings against the petitioner which went upto the level of Hon'ble Supreme Court of Pakistan under which the petitioner was directed to restore the possession of the premises within a period of 60 days by setting aside the orders of the Additional District Judge and High Court. It is further alleged by the petitioner that when the ejectment proceedings were pending before the Rent Controller he filed a Suit Jo. 252 of 2002 against the respondents 2 & 5 for declaration and permanent injunction with a prayer for cancellation of lease deed allegedly obtained by practicing fraud and the said suit is still pending. His main grievance is that as the lease deed executed in favour of the respondent No, 5 was a void deed, therefore, the same may be declared as such, with the following prayer:-- "The petitioner, therefore, humbly prays that this Hon'ble Court be pleased:--
(a) To declare that as per law declared by a Full Bench of Hon'ble Supreme Court in case of Muhammad Ashraf Ali V. Muhammad Naseer and 2 others (C) 1986 SCM R 1096 (1099-C), (Annexure P/7 to the Const. Petition) the lease deed dated 22.4.1999 (Annexure P/6 to the Constitution Petition) in favour of respondent No: 5, in respect of Shop No, 148, Ground Floor, Saddar Cooperative Market, Abdullah Haroon Road, Saddar, Karachi, having been executed by the Project Director as alleged authorized officer/delegate of Administrator, is ab initio void, without jurisdiction, nullity in the eye of jaw, conferring no title on the respondent No, 5, in respect of said shop;
(b) To issue direction to the respondents Nos, 1, 2 & 3, jointly and/or severally, to make decision, within a specific time on petitioner's application dated 27.7.1998 (Annexure P/3 to the Const.
Petition) for allotment/lease of shop No, 148, Ground Floor, Saddar Cooperative Market, Abdullah Haroon Road, Saddar, Karachi, being their sitting tenant, according to their settled policy and procedure, upheld by a Full Bench of Hon'ble Supreme Court in Muhammad Ashraf Ali's case (1986 SCM R 1096):
(c) To restrain the NAB, Sindh (respondent No, 6) from entering into any deal or compromise with the respondent No, 5, to regularize the purported lease of the said Shop No, 148, by way of making payment of extra amount by the respondents, in addition to or including the amount of Rs, 25,000/- the Pay order whereof was not encashed by the official respondents, which is still lying with the NAB, after discovery that the Project Director, illegally and without lawful authority, had executed the purported lease deed in favour of respondent No, 5;
(d) To restrain the respondent No, 5 from claiming any title or right on the basis of purported lease deed dated 22.4.1999, in respect of Shop No, 148, Ground Floor, Saddar Cooperative Market, Adbullah Haroon Road, Saddar, Karachi and to dispossess the petitioner from the said shop in any manner whatsoever;
(e) To pass any other, further better order or orders, which may be deemed to be fit and proper in the circumstances of the case.
(f) Grant costs."
2. The respondents were served. They filed their comments. With the consent of the parties the matter was ordered to be disposed of at Katcha Peshi level hence we heard the arguments of the parties counsel and perused the record of this case very arefully.
3. The main contention raised by the learned advocate for the petitioner is that in view of the rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ashraf (supra) the lease deed executed between the "respondents 2 & 5 is a void deed, therefore, the said deed may be declared as such. Conversely, the learned advocates for the respondents have argued that the said lease deed is the subject-matter of suit No, 252 of 2002, therefore, the petitioner had already availed the remedy provided under the law, hence the same prayer cannot be repeated through the present petition.
4. It is an admitted 'position that when 'the ejectment proceedings were pending before the Rent Controller the petitioner filed the above-mentioned suit, which is still pending. It will be advantageous to reproduce the prayer of the said suit, which is as follows:-- "The plaintiff, therefore, prays that this Hon'ble Court be pleased to:--
(a) Declare that the plaintiff continues to be the tenant of the defendant No, 1 in respect of Shop No, 148, Saddar Cooperative Market, Karachi under the Agreement of Tenancy dated 1.1.1989 in spite of the execution of the fraudulently registered lease deed dated 22.4.1999 in favour of defendant No, 2.-
(b) Grant permanent injunction retraining the defendant No, 2 from claiming any right title or in respect of Shop No, 148, Saddar Cooperative Market, Karachi on the basis of fraudulently executed lease deed dated 22.4.1999.
(c) Cancel the fraudulently executed lease deed dated 22.4.1999 favouring the defendant No, 2, as plaintiff has reasonable apprehension that the lease deed, if left .outstanding, shall seriously injure the plaintiffs legal rights in respect of Shop No, 148, Saddar Cooperative Market, Karachi, and the defendant No, 2 may be ordered to deliver up the same to this Hon'ble Court for cancellation. This Hon'ble Court may then order that a copy of the decree cancelling the lease deed be sent to the sub-Registrar, T-Division (1-A), Karachi where the lease deed was registered and the Sub-Registrar may be ordered to make a note of such cancellation on the copy of the lease deed contained in his Registration Book.
(d) Any other relief that may be deemed fit and proper under the circumstances of the case.
(e) The defendants be burdened with the costs of this suit and all proceedings thereunder."
5. A perusal of the above prayer and the prayer made in the present petition clearly shows that the main prayer in both the matters is similar. In the suit it has specifically prayed for cancellation of the lease deed dated 22.4.1999 executed between the respondents 2 & 5 on the ground that it was a fraudulent deed. In the present petition the petitioner has prayed to declare the said lease deed as void ab initio in view of the rule laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Ashraf (supra).. The subject-matter of both the prayers is the lease deed which is sub judice before the Civil Court and the suit is still pending.
6. From the facts and allegations made by the petitioner it is clear that the petitioner has shown an additional ground for cancelling the said lease deed which he can properly and adequately place before the Trial Court by making necessary amendment in the pleadings of the suit. Even otherwise it is legal point, which can be decided by the Trial Court even without making the required amendment in the pleading. The execution of lease deed is the subject-matter of the civil suit and if the Civil Court comes to the conclusion that the lease deed was executed by an incompetent and unauthorized person then the lease deed can be cancelled.
7. From the above facts it is clear that the petitioner had already invoked the jurisdiction of Civil Court, which was competent to decide all the questions involving in the matter and as such he has already availed the remedy available under the law.
8. The learned advocate for the petitioner has relied upon several authorities of the Hon'ble Supreme Court of Pakistan and argued that it is not necessary in all the cases that first remedy available under the law should be exhausted and then a writ petition be filed but if the remedy is not adequate and efficacious then the High Court can be approached. There is no cavil to the said proposition. It is pointed out that as a general- rule if an adequate remedy is available to aggrieved parson then he cannot invoke the jurisdiction of High Court under Article 199 of the Constitution. Nevertheless, the 'existence of an alternate remedy is not per se a bar to the issuance of an order under Article 199. However, the remedy should be sufficient to warrant refusal of exercise of its jurisdiction and if is necessary that other remedy must be both specific and adequate in the sense that it must be competent to afford relief upon the very subject-matter of the Petition and be equally convenient, beneficial and effective. Reliance is placed on Abdul Hamid v. Deputy Commissioner (1985 SCM R 359) and Presiding Officer v. Sadruddin Ansari (PLD1967 S.C.
569).
9. In the present case the situation is completely different as the petitioner has already availed the remedy by filing a civil suit in a competent Court of jurisdiction in the year 2002 and after four years the present petition has been filed. In the rulings cited at the bar by the learned advocate for the petitioner the writ petitions were filed before availing the remedies provided under the law but in the present petition the petitioner has already availed the remedy and has submitted himself to the jurisdiction of Civil Court. Therefore, the said authorities are not applicable to the facts and circumstances of the present case.
10. As regards the prayer that the respondents 1 to 3 may be directed to decide the application dated 17.7.1998 for allotment of the plot, suffice it to say that the petitioner has himself produced a letter issued by the respondent No, 3 intimating the petitioner that his request for allotment of the shop could not be considered due to the pending process of cancellation of registered documents in various Courts of law. From the letter it is clear that the matter would remain pending before the respondent No, 3 till the matter is decided by competent Courts of law.
11. All the other prayers are based upon the main prayer which is sub judice before the Civil Court. - It is also well-settled principle of law that the jurisdiction under Article 199 is a discretionary jurisdiction of High Court that is principally available to see that the justice should be done in accordance with law, equity and good conscious. The exercise of Constitutional jurisdiction cannot be claimed as a matter of right or mere course but it is the discretionary and depends upon that facts and circumstances of each case. In the present case the facts and circumstances do not require to invoke discretionary jurisdiction as the relief can adequately be granted in the pending proceedings by the Civil Court.
12. In the light of, what has been discussed above we do not find any merits in the petition.
Therefore, by our short order dated 23.5.2006 the petition was dismissed. These are the reasons thereof.