' MUHAMMAD ALI MAZHAR, J.---The petitioner has brought this petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, with the prayer that the respondents may be directed to release admitted amount as per verified bills. Further directions have been sought to pay interest on verified amount as per bill according to prevailing rate of markup notified by State Bank of Pakistan. It was further prayed that direction may be issued to respondent to takeover admitted dismantled/excess material from the petitioner.
2. Brief facts of the case are that petitioner's firm was given a work order by HESCO on 24-5-2011 for collection and transportation of ABC & Hardware from HESCO Store, dismantlement of bare LT Conductors, Hardware and safe return to store, installation of ABC and hardware installation of static energy meters in place of existing electromagnetic energy meters. The work was awarded by HESCO and work order was signed and issued by its Chief Engineer (Dev.) PMI T The total amount of work order was Rs.1,493,177/-. Along with work order, agreed terms and conditions were also attached.
3. The learned counsel for the petitioner argued that despite an admitted liability, respondent No.4 has failed to honour his commitment. He further argued that entire work was completed to the satisfaction of respondent No.4 and work done was also assessed and verified by the respondent No.5 and bill was submitted to respondent No.4 for releasing payment. He further argued that respondent No.5 had written a letter to the respondent No.4 in which intimation was given that work has been completed and respondent No.4 was advised to take over the completed work. Learned counsel argued that respondents have infringed the fundamental rights of the petitioner by not paying his dues and admitted amount without any reason. It was further averred that petitioner has no other efficacious and adequate remedy except to file this constitution petition. In support of his arguments, the learned counsel for petitioner relied upon following dictums:--
(1) PLD 1966 SC 639 (Anjuman-e-Ahmadiya, Sargodha v.Deputy Commissioner Sargodha and another). Leave to appeal to Supreme Court. Granted to consider whether remedy by way of suit was an "adequate alternative remedy" in a case where order impugned under Article 98 of Constitution of Pakistan (1962) was purported to have been made in exercise of "public power". (b)
Constitution of Pakistan (1962) Article 98(2). "No other adequate remedy is provided by law". Such remedy must be remedy "in law" not less convenient, beneficial and effective, in case of a "legal right to performance of a legal duty". Remedy must be provided by particular statute itself. To disentitle a person from such an extraordinary relief (under Article 98(2) of the Constitution (1962) the alternative remedy available must be a remedy in law, that is a remedium juris and one which is not less convenient, beneficial and effective, if what is sought to be enforced, by such an extraordinary remedy is "a legal right to the performance of a legal duty of a public nature".
(2) 2007 MLD Karachi 770 (Hydri Ship Breaking Industries Ltd. v. Sindh Government and others)
Article 199. Constitutional petition. High Court would not entertain a constitutional petition when other appropriate remedy was available, was not a rule of law barring jurisdiction of High Court.
Such as a rule by which the Court would regulate the exercise of its own discretion. One of the well- recognized exceptions to that general rule was a case where an order was attacked on the ground that it was wholly without authority. In certain cases Superior Courts do not allow petitioners to invoke constitutional petition on the ground of availability of an alternative remedy by way of appeal or otherwise, but on the other hand, in other cases, notwithstanding the pendency of an appeal or availability of an alternate remedy the Courts do not hesitate to exercise such constitutional jurisdiction and it could be expressed as a generally accepted principle, that just because an alternate remedy by way of appeal or otherwise was available to a petitioner, High Courts would , not invariably decline to exercise their extraordinary constitutional jurisdiction. Mere availability of an alternate remedy, would not debar High Court from exercising such jurisdiction.
(3) PLD 2008 SC 135 (Muslimabad Cooperative Housing Ociety Ltd., v. Mrs.Siddiqa Faiz and others)
Article 199. Constitutional jurisdiction of High Court. Scope. Impugned act of statutory functionary being mala fide. Alternate remedy, availability of. Effect. Availability of alternate remedy would not bar jurisdiction of High Court to entertain constitutional petition. Principles. High Court will not entertain a writ petition when other appropriate remedy is yet available to petitioner is not a rule of law barring jurisdiction but a rule by which the court regulates its jurisdiction. When a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, then the High Court, in exercise of its writ jurisdiction, has power to grant relief to the aggrieved party.
(4) PLD 2009 Karachi 112 (Hap Amin v. Pakistan Trading corporation (Pvt.) Ltd., and another) Article
199. Constitutional jurisdiction. Scope. Normally a constitutional petition for the enforcement of a contractual obligation, was not maintainable, however, State and a functionary acting under the State had to act in a fair and transparent manner; and if disputed questions of facts were not involved, relief, in exercise of power under Article 199 of the Constitution, in appropriate matters could not be denied, merely because issues in the matter related to contractual obligations.
(5) 2003 CLC Karachi 1196 (Messrs Ahmed Clinic v. Government of Sindh and another) Article 199.
Constitutional jurisdiction of High Court. Alternate remedy, availing of. Principles. Where impugned actions are completely without jurisdiction, mala fide, unlawful and passed in flagrant disregard of the law and principles of natural justice, the same amount to denial of justice. Not necessary to avail alternate remedies in such matters. Aggrieved party can invoke the constitutional jurisdiction in circumstances .
(6) PLD 2006 SC 528 (Province of Sindh through Secretary, Ministry of Excise and Taxation and others v. Messrs Azad Wine Shop and others). Adequate alternative remedy. Question of validity of levy and recovery of vend fee, assessment fee and surcharge on the touchstone of the prohibition (Enforcement of Hadd) Order, 1979 and Sindh Prohibition Rules, 1979 was a question of law. Rule 10 of Sindh Prohibition Rules, 1979 authorized the Government or its authorized officers to call for and examine the record of proceedings, taken or passed by any authority subordinate to it, so as to satisfy itself as to the legality or propriety of the same. Said revisional power of the government could not be said to be an alternative remedy, much less adequate. Where validity of the law or the rules or instructions having the force of law was involved, the availability of alternative remedy had never operated as a bar to the exercise of constitutional jurisdiction by the High Court.
(7) PLD 2005 SC 792 (Pakistan Defence Officers Housing Authority, Karachi v. Shamim Khan and others). Controversial question of facts requiring adjudication on the basis of evidence could not be undertaken by the High Court under its Constitutional jurisdiction. Where the material facts were admitted by the respondent. High Court could interfere.
4. On the contrary, the learned counsel for the respondent No.4 argued that contract was executed between HESCO and the petitioner for execution of electrical work and accordingly work order was issued but the petitioner intentionally avoided to implead the HESCO in this petition which was proper and necessary party. He further argued that nature of controversy involved in this petition primarily relates to correctness and satisfaction of work awarded to petitioner and its completion or non-completion which is essentially a factual controversy and requires full-fledged inquiry and matter can only be resolved once the evidence of the parties is recorded. So the learned counsel vehemently argued that this petition is not maintainable. He specifically referred to paragraph No.3 of the counter affidavit in which various details are given. He argued that the petitioner has failed to complete the job as per work order. It was also contended that the petitioner dismantled some material and failed to return the same to HESCO store. Quantification of work was required to be made by joint survey and petitioner was reluctant to return and get it surveyed jointly and they also failed to show details of some material whether it is in safe custody or not? It was further pointed out from counter affidavit that petitioner failed to return the removed meters to the HESCO store. Through removed meters, readings were required to be noted for generating bills to the consumers for payment and due to non-returning of meters, there is an acute possibility of loss of revenue and unless all meters are returned, proper reading could not be taken from meters for onward billing to the consumers.
5. He further argued that petitioner also failed to return meter frames, anti-theft boxes and empty cable drums. It was further averred that petitioner has failed to abide terms and conditions of work order and to complete work within a period of one month and due to poor workmanship, work lingered on till March, 2012 as such HESCO has a right to claim loss occurred due to shut down.
Defective work is required to be rectified. The petitioner was required to submit invoices along with other documents for which sample specimen/format were handed over to the representative of the petitioner. Details of all such documents are mentioned in counter affidavit. To a simple glance of counter affidavit, it is clear that various disputed questions of facts and factual controversies have been raised by respondent No.4 and nowhere any liability is admitted.
6. Heard the arguments. The whole case of the petitioner is based upon the assertion that since the respondent No.4 has admitted the liability of payment hence, the petitioner has rightly invoked the jurisdiction of this court under Article 199 of the Constitution. When we had called upon the learned counsel for the petitioner to show us if any admission made by 'the respondent No.4 agreeing to pay the outstanding dues. At the very outset, the learned counsel invited our attention to page-37 which is in fact a taking over report of Grid Qasimabad for the replacement of Bare LT Conductors with Arial Bundled Cables. This report was only signed by the contractor's representative and consultant's representatives but the column made for the signature of HESCO's representative is blank which shows that the HESCO representative never signed any such taking over report. Then the learned counsel pointed out page 261, which is a letter dated 2-7-2012 written by respondent No.5 to the petitioner for returning of excess and dismantled material of HESCO, ABC Jobs, Memon Society, Qasimabad. In this letter the representative of respondent No.5 in fact lodged a grievance to the petitioner that their representative is not in contact for proper and correct measurement of job orders and to finalize the balance material to be returned to the store. Again we are failed to understand as to how this letter can be treated any admission. Learned counsel then pointed out page 287 which is a letter dated 3-7-2012 written by HESCO to the petitioner in which the Manager, HESCO advised the petitioner to attend the office of respondent No.5 for resolving the returning of excess and dismantled material of HESCO including the matter of invoices/bills. In this letter too, no admission is reflected to have been made for payment on the part of HESCO. Learned counsel next referred to page 301 which is an office order issued by HESCO. The copy of this order was endorsed to various offices for returning of dismantled energy meters with the pointation of designated stores mentioned in the bidding documents. Lastly he referred to page 303, which is a letter written by respondent No.5 to the Executive Engineer, Operation Division, Qasimabad, HESCO, Hyderabad in which it was advised to take over the project for the work of installation of ABC at Memon Housing Society, Hyderabad. Again in this letter nothing is shown to treat any admission of liability which was in fact written to HESCO and not by HESCO to the petitioner. It is also pertinent to point out that the claim of the petitioner is against the HESCO through its Chief Executive Officer but despite providing ample opportunity of hearing to the petitioner's counsel, he could not be able to demonstrate any visible admission through any documents. It is also a fact that the work order was issued by HESCO in this case but the petitioner failed to implead HESCO as one of the respondents, which was proper and necessary party but the petitioner only impleaded its Chief Executive and not the company. So in this regard we are of the view that the petition is also hit by misjoinder and non-joinder of necessary party.
7. The pros and cons lead us to the conclusion that both the parties have raised disputed questions of facts and we have not come across with any admitted liability. Article 199 of the Constitution is not intended for deciding the disputed facts and thwarts the procedural law. The controversy of disputed questions of facts, adjudication of which is possible only after obtaining all types of evidence having by the parties can be determined only by forums concerned and in such-like cases, constitutional petition would not be competent. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where legality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts. Reference can be made to a judgment of Mumtaz Ali Jahangir v. Province of Sindh authored by one of us (Muhammad Ali Mazhar, J), which is reported in 2012 YLR 453.
8. The petitioner wants implementation of contractual obligation for which the civil court is the most appropriate, adequate and efficacious remedy. In case of contractual obligation for resolution of disputed questions of facts the proper way to decide the controversy is to record evidence so that the rights and claims of the parties may be determined. The petitioner has approached this court for the recovery of dues and also asserted in the memo of petition that constitution petition is an adequate remedy under the law which is totally a misconceived notion. It is often seen which has become a common fashion and practice that to cure and remedy all the problems/sufferings, litigants use to file constitutional petitions, no matter, the petition is maintainable or not or equally efficacious and alternate remedy is already provided under the law.
It is clear from the letter of the law that claim arising from contractual obligations require inquiry and evidence and it can only be decided by civil court which is most adequate and efficacious remedy. The writ jurisdiction cannot be exploited as sole solution for ventilating all miseries, distresses and plights. This extraordinary jurisdiction should not be misused to waste precious time of the court in fruitless exercise particularly when a huge backlog of pending cases are in docket almost in all courts. It is time and again seen that due to wrong approach to the wrong forum on misconception of law or wrong selection of forum, the actual remedy provided under the law becomes time barred and in that situation, the petitioner has to first cross the barrier of limitation for seeking relief and leaving himself at the mercy of the court to consider the sufficient cause for condonation of delay, and then embark upon the merits of the case.
9. Learned counsel for the petitioner referred to various dictums in support of his case which are mentioned above but all are found distinguishable. In the case of Anjumian-e-Ahmadiya, Sargodha, the subject matter was construction of mosque along with boundary wall, in which it was claimed that the construction was being raised on the basis of plan submitted to the municipality. In the case of Hydri Ship Breaking Industries Ltd., the common question was involved in 130 petitions, which were in fact related to the grant of import license and the payment of Octroi.
In the case of Muslimabad Cooperative Housing Society Ltd., the order of Deputy Registrar Cooperative Societies was challenged and it was set aside on the ground that it was beyond the scope of Section 54-A or Section 56 of the Cooperative Societies Act. In the case of Haji Amin the petitioner participated in the tender proceedings for the supply of rice. A tender was issued in favour of another party so the petitioner only claimed the refund of bid amount which was deposited along with bid documents. In the case of Messrs Ahmed Clinic, the dispute was related to the grant of an amenity plot, which was subsequently cancelled under Martial Law Order 34. The next quoted case is Province of Sindh v. Messrs Azad Wine Shop and others, which was related to the levy and recovery of vend fee, assessment fee and surcharge on assessment fee as without lawful authority. The last case of Pakistan Defence Officers Housing Authority, Karachi is also related to the allotment of residential plot and its cancellation due to non-deposit of development charges. In none of the cited cases the controversy of like nature was involved so the same are not attracted to the facts and circumstances of the present case, which is merely in the form of civil suit for recovery for which a futile attempt has been made to convert the same into a constitutional petition, which is not conceivable.
10. At this convergence, we would like to quote the case of Pakcom Limited reported in PLD 2011 SC 44 in which the apex court held that violation of contract or failure to abide by the terms and conditions mentioned therein or to honour obligations arising out of an agreement cannot be decided in exercise of constitutional jurisdiction and such controversies should be resolved by approaching appropriate forums provided by Law. The contractual rights, commitments, undertakings and obligations have to be enforced through courts of ordinary jurisdiction for which normal remedy is a suit for infringement of contractual rights and obligations which could be availed instead of invocation of Article 199 of the Constitution.
11. As a result of above discussion this petition is dismissed. The petitioner may avail appropriate remedy in accordance with law.