' RAJA SAEED AKRAM KHAN, J.---This appeal, with the leave of the Court, arises out of the judgment of the High Court dated 15-3-2010, whereby the writ petitions filed by the appellant, herein, are dismissed.
2. The relevant facts forming the background of this appeal are that the appellant is a duly registered "A" Class firm for the construction of projects of unlimited value. The Public Works Department allotted to the appellant the work for upgradation/restoration of damaged portion of Kotli-Khuiratta Road, and reconditioning including metalling of Gohra-Khujhrala Road Khord Barali.
The appellant-company started the work and completed the work almost up to 70%, when respondent No. 2, cancelled the work order and confiscated the earnest money/ security deposit which resulted into a mental agony and defamation in the society. Vide orders dated 23-6-2007 and 5-7-2007, the whole machinery of the appellant deployed on the site and other construction material was confiscated and ordered to be auctioned. These orders were assailed by filing Writ Petitions Nos. 6 of 2008 and 45 of 2009. The High Court, vide judgment dated 15-3-2010, dismissed both the writ petitions which has been impugned in this appeal.
3. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, has submitted that the impugned judgment is against law and facts of the case and the High Court failed to adhere to the law on the subject. He further argued that the High Court erred in law while not interpreting the Constitutional provisions in its true perspective. He further averred that the High Court erred in law while holding that the appellant had already filed a civil suit, therefore, the writ petitions were not competent. He argued that the High Court fell in error while not taking into consideration the fact that violation of fundamental right No. 14 guaranteed by the Azad Jammu and Kashmir Interim Constitution Act, 1974 was involved in the writ petitions. The High Court failed to dilate upon the question that nobody can be deprived of his private property without following the relevant procedure of law. There was misconception on the part of the High Court while holding that the appellant was asking for the enforcement of contractual liability through the writ petition. He lastly argued that the matter sub judice before the civil Court is regarding payment of work done in the light of the agreement and not paid to the appellant, therefore, the High Court was not justified to decide the writ petition on the basis of wrong presumption which was not supported by any law.
4. Nobody appeared on behalf of the respondents as they have been proceeded ex parte:
5. We have heard the arguments of the counsel for the appellant at length and also perused the record available on the file. Admittedly, an agreement was made between the appellant-company and respondent No. 2 and in this regard the work order was issued. Later on the same was cancelled and the machinery and other material which was being used by the appellant on the site was confiscated and ordered to be auctioned. This action of the department was challenged before the High Court by filing the writ petitions. It is also not denied on the part of the appellant that civil suits have been filed by both the parties against each other which are sub judice before the Court of competent jurisdiction.
6. After going through the contents of the writ petitions and the appeal, we are of the view that the questions agitated before the High Court pertain to factual controversy which can only be resolved after recording evidence which is not the job of the High Court. It is celebrated principle of law that factual controversies cannot be resolved through writ petition as has been laid down in a case titled Capt. Rtd. All Afsar Khan v. Khalid Mahmood (2007 SCR 263) in which it has been held by this Court as under:-- "The above narrated detail reveals that the controversy between the parties is purely in respect of controversial points of facts which in view of law cannot be inquired into in exercise of writ jurisdiction under section 44 of the AJ&K Interim Constitution Act, 1974. Similarly very strong grounds are required along with a statutory backing to look into the validity or otherwise of the finding recorded, by a Tribunal of exclusive jurisdiction."
' In another case titled Ch. Arshad Hussain v. Rukhsar Ahnzed and others (2006 SCR 85) it was observed by this Court as under:-- ' Normally the disputed questions of fact are not allowed to be raised and resolved in writ jurisdiction "
' In a case reported as Syeda Shahista Mumtaz v Secretary Education and 6 others (2003 SCR 446), it has been held as under:-- ' However, I endorse the finding of the High Court that the disputed question which requires to be resolved by recording the evidence of the parties for and against their respective claims, is not normally resolved in writ jurisdiction. However, the High Court has got jurisdiction to resolve the disputed question of fact in a suitable case."
' Similarly from Pakistan jurisdiction in a case reported as Muhammad Mahmood Bawani v. Deputy Controller Buildings Zone-B and others (2007 SCM R 1209), it has been observed by the Supreme Court of Pakistan as under:-- " Since we are of the view that factual controversies are involved in the whole lis, we would refrain from making any comments on the questions raised before us as it would be against the settled principles of law. Indeed this Court is not expected to embark upon enquiry into controversial facts of a case and record its finding in the exercise of extraordinary constitutional jurisdiction, which is only meant for resolving and interpreting pure questions of law."
7. It is also settled proposition of law that the disputed question of facts can only be resolved after recording the evidence which is the job of Civil Court for which the parties have already availed the remedy available under the law before the Court of competent jurisdiction and in this regard the matters are sub judice for adjudication.
8. It may be observed here that the contractual obligations cannot be enforced through Constitutional petition as has been held in a case reported as Lahore Cantonment Cooperative Housing Society Limited Lahore, Cantt. v. Dr. Nusrat Ullah Chaudhry and others (PLD 2002 SC 1068) in which it has been observed as under:--'
"5. It is an admitted fact that what was challenged before the High Court under Article 199 of the Constitution was the cancellation of a contract. Both the parties had serious allegations against each other and each had accused the other for violating the terms and conditions of the contract.
What were the terms and conditions and how were those violated practically by any of the parties involves not one but numerous questions of fact which required the recording of evidence. Such disputed questions of fact pertaining to contractual liability could not be dealt with by the High Court in its Constitutional jurisdiction under Article 199 of the Constitution."
' It was further observed in the above referred case in paragraph 6 as under:-- ' The crux of all these findings is that whenever there is a disputed question of fact particularly referring to a contractual liability, it requires the extensive recording of evidence and hence only a Civil Court is competent to do that. As the recording of evidence is not permissible in exercise of writ jurisdiction, the very entertainment of writ petition in the circumstances is totally unwarranted.................................
' Similar view prevailed in a case titled Shabbir Ahmed and others v. Pakistan Telecommunication Company Limited and others (2001 M LD 1903) wherein it has been observed as under:-- ' It is well-established law that the contractual obligations cannot be enforced through constitutional petition."
' In another case reported as Messrs Momin Motor Company v. The Regional transport Authority, Dacca and others (PLD 1962 SC 108) it has been held as under:-- "Learned counsel then attempted to argue that his client had contractual rights, because he had been made to spend lot of money on making the road bus-worthy and the understanding was that no other permit-holder would be introduced in this route. The short answer to this contention is that contractual rights, if any, are not enforceable by recourse to writ jurisdiction."
9. In view of the above, we are of the view that the High Court has rightly dismissed the writ petitions while holding that the parties have already availed the remedy before the civil Court and the questions raised before the High Court can only be determined after recording the evidence.
We do not see any substance in this appeal. The learned counsel for the appellant failed to substantiate any question of public importance.
' Resultantly, this appeal being devoid of any force is dismissed with no order as to the costs.