' By means of this Intra-Court Appeal the appellant has thrown a challenge to the judgment dated 22-7-2011 passed by a learned Single Judge of this Court whereby while partially accepting the Writ Petition (No,9990 of 2011) dismissed the same qua the prayer of the petitioner/ appellant to declare the award of contract of the pharmacy to respondent No,4 as illegal.
2. Snappishly, the facts forming background of the instant appeal can be summed up in the words that tenders were invited for leasing out Emergency Pharmacy Waiting Area Services Hospital Lahore for the years 2010-2011. The appellant and respondent No,4 along with others participated in the said bid. The offer of Messrs AAA Medical Store (respondent No,4) was rejected and the petitioner was declared as the highest bidder. However, on the complaint filed by respondent No,4 the matter was reopened on 19-10-2010 against which the appellant filed a civil suit before the learned Civil Judge Lahore wherein temporary injunction was granted in favour of the appellant.
Respondent No,4 and Messrs Alfalah Medicose challenged the order of the learned Civil Judge granting temporary injunction in favour of the appellant by virtue of two distinct appeals before the District Judge. The learned appellate court declined to suspend the operation of the temporary injunction granted in favour of the appellant, however, on the appeal filed by Messrs Alfalah Medicose the operation of the said order was suspended. Aggrieved by the said order the appellant filed a civil revision before this court wherein notices were issued to the respondents.
However, operation of the order passed by the learned appellate court was not suspended.
Consequently, respondent No,1 awarded contract of the said pharmacy to respondent No,4. In addition thereto the appellant was also blacklisted. Being dissatisfied with the said actions of respondent No,1, the appellant filed afore-mentioned writ petition which was dismissed qua the prayer of the petitioner that award of contract in favour of respondent No,4 be declared illegal; hence this appeal.
3. Learned counsel for the appellant contends that the appellant being the highest bidder had been depositing monthly rent regularly and the award of contract by respondent No,1 to respondent No,4 during pendency of litigation on the subject is the result of mala fide; that the learned Single Judge in Chambers omitted to note that Messrs Alfalah Medicose was not a party in the suit filed by the appellant, therefore, he did not come within the definition of an aggrieved person therefore the appeal filed by him was not competent; that the learned Single Judge in Chambers has illegally observed that the Writ Petition was not maintainable; that the learned Single Judge in Chambers has not attended to an important question that Messrs Alfalah Medicose suppressed the dismissal of its Writ Petition by this court while filing appeal before the District Judge; that the learned Single Judge has not taken note of the fact that out of 12 months the appellant consumed about 10 months and the awarding of contract to respondent No,4 is valid only for two months and thereafter the matter would be put to auction afresh; that the appellant being highest bidder had a right to enjoy the possession of the said pharmacy; that the learned Single Judge in Chambers has failed to appreciate that the orders impugned in the Writ Petition were result of mala fide on the part of respondent No,1; that the undue haste showed by respondent No,1 while awarding contract of the pharmacy to respondent No,4 speaks volumes about the uncalled for conduct of respondent No,1 and that the learned Single Judge in Chambers has not appreciated the facts and the relevant law on the subject in its true perspective while passing the impugned judgment. In addition to his oral submissions, learned counsel has relied upon the cases reported as Sargodha Textile Mills Limited v. Habib Bank Limited and another (2007 SCM R 1240), Muhammad Mubarak Khan v. The Settlement and Rehabilitation Commissioner Multan and Bahawalpur Division Multan (1980 CLC 1980) and The Muree Brewery Company Limited v.
Pakistan through the Secretary to Govt. Of Pakistan, Works Division and 2 others (PLD 1972 SC 279).
4. We have heard learned counsel for the appellant and have also gone through the documents appended with this appeal. During the said course we have noted that the appellant and respondent No,4 along with others participated in the bid for auction of the said pharmacy. Initially, the tender of respondent No,4 was rejected. However, on complaint, the matter was reopened. The appellant filed .a civil suit against the reopening of tender of respondent No,4. Temporary injunction was granted in favour of the appellant in the said suit. However, the same was vacated by the appellate court on appeal filed by Messrs Alfalah Medicose against which the appellant filed a civil revision which is pending adjudication before this court. The moot question for determination by this court is that whether in presence of other remedy, which has already been availed by the appellant, the Writ Petition was maintainable before this Court or not. In this regard, we are of the view that constitutional jurisdiction of this court cannot be invoked in all matters as a matter of right rather such jurisdiction has certain circumventions which the court is required to keep in view while exercising its extraordinary jurisdiction. The availability of alternate remedy is one of the limitations which bar exercise of constitutional jurisdiction by this Court. If any case-law is required, the reference can safely be made to the case reported as Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066). In the instant matter, the appellant has already availed the alternate remedy of filing civil suit before the competent court and on the strength of a temporary injunction the petitioner has already enjoyed the possession of the said pharmacy for ten months.
The contention of the petitioner that awarding of contract has furnished a new cause of action to the appellant for filing Writ Petition before this Court seems to be misconceived as in pith and substance the matter before the Civil Court is reopening of tender of respondent No,4. Till the presence of temporary injunction in favour of the appellant, the respondents did not take any step for awarding contract to respondent No,4.
5. Insofar as the contention of the appellant that he being highest bidder had a right for the lease of the said pharmacy for the years 2010-2011 is concerned, suffice it to observe that mere being highest bidder does not create any right in favour of a person making such bid rather the same would be subject to execution of a formal agreement. It is not case of the appellant that after having been declared as highest bidder, formal agreement was executed by the respondent in his favour rather according to his own showing, prior to execution of such agreement the matter was reopened regarding the rejection of tender of respondent No,4. In the matter of Mian Peer Muhammad v. Hameer Saffar and others (2010 SCM R 1725) the Hon'ble Supreme Court of Pakistan while going a step forward held that no concluded contract could be construed in favour of the highest bidder despite deposit of lease money for one year for the reason that deposit of said money does not create any vested right.
6. Now attending to the appellant's contention that the temporary injunction granted by the learned Civil Judge was vacated by the appellate court on the appeal filed by a person who was not party in the suit, we are of the view that according to the comparative statement of the bidders who participated in the bid, attached by the appellant himself, Messers Alfalah Medicose was the second highest bidder after the appellant. The word used in the statute is 'aggrieved person' and not 'party to the proceedings' thus the arguments of learned counsel for the appellant on this point are repelled.
7. Now reverting to the appellant's stance that the learned Single Judge in Chambers illegally held that the matter involves factual controversy, we have no doubt in our mind to hold that without recording evidence it cannot be ascertained whether contract in favour of respondent No,4 was executed in violation of any rule and regulation or not. Thus, the observations of the learned Single Judge are totally in line with the law on the subject.
8. Now coming to the case-law cited by learned counsel for the appellant, we are of the view that the same is not applicable to the facts and circumstances of the instant case due to peculiarity of facts and proposition of law involved therein.
9. The discussion made in the foregoing paragraphs leads us to un-escapable conclusion that the learned Single Judge rightly held that qua the award of the contract in favour of respondent No,4, the Writ Petition was not maintainable. Despite repeated queries learned counsel for the appellant has miserably failed to clarify that during pendency of civil revision on the same subject before this court, how Writ Petition is maintainable. Consequently, we see no reason to interfere with the well- based judgment by the learned Single Judge whereby the Writ Petition filed by the appellant was partially dismissed. Resultantly, this appeal is dismissed being without any force.