1. RAZA ALI KHAN, J.---Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, order dated 18.04.2018 passed by learned Civil Judge Sharda, whereby application for vacation of ex parte proceedings has been accepted, has been challenged for having been passed without lawful authority.
2. Precise facts of the case: are that petitioners, herein, filed a suit for possession, permanent injunction and correction in the revenue record. The respondents were proceeded ex parte on 27.10.2016. On 27.10.2016 respondents filed an application for vacation of exparte proceedings. The petitioners, herein, filed objections on the application. After hearing the learned counsel for the parties the learned Civil Judge Sharda through the impugned order dated 18.04.2018 accepted the application and vacated the ex-parte proceedings, hence, the captioned writ petition.
3. The learned counsel for the petitioners vehemently argued that initially the respondent was served properly but he did not appear despite service as a result whereof he was proceeded ex-parte. The learned Advocate further stated that application for vacation of ex-parte proceedings has been filed after a delay of at least 355 days and no plausible explanation has been furnished for such delay, hence, the learned trial Court while setting aside the ex-parte proceedings has committed illegality, which is liable to be reversed.
4. The learned counsel for the respondents raised objection that writ petition is not maintainable because an alternate remedy is available to the petitioners in shape of revision.
5. To controvert the objection raised by the learned counsel for the respondents, the learned counsel for the petitioners placed reliance on following cases:-
(1) 2010 CLC 1734; (2) 2011 YLR 2850; (3) PLD 2011 Karachi 494; (4) 2011 CLC 1498; (5) 2011 SCMR 1813;
(6) 2013 CLC 470 and (7) 2017 CLC 1426.
6. 1 have heard the learned counsel for the parties and gone through the record of the case.
7. Firstly, I would like to discuss the case law referred to by the learned counsel for the petitioners. In case titled Al-Rehman Associates v. Province of Sindh and 2 others (2010 CLC 1734) it is held that principle of natural justice would be read into relevant provisions of law and available to a person having vested right and affected by an action taken to prejudice such right.
8. In case titled Sh. Tariq Mehmood and others v. E. T. P. C. and others (2011 YLR 2850) it was observed that laches is no ground to throw out a writ when office was usurped by a person not entitled to hold the office.
9. In case titled Independent Music Group and another v. Federation of Pakistan and another (PLD 2011 Karachi 494) it was ruled that existence of an alternate remedy is not an absolute bar on power of this Court to entertain Constitution Petition under Article 199 of the Constitution.
10. In case titled Rukhsana Jabeen v. Additional District Judge, and others (2011 CLC 1498) it was opined that in exceptional cases the bar of alternate remedy can be ignored to administer substantial justice between the parties.
11. In case titled Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813) it was held that if the procedure for obtaining relief by some other proceedings is too cumbersome or the relief cannot be obtained without delay and expense or the delay would make the grant of the relief meaningless the High Court can issue writ.
12. In case titled Muhammad Hafeez v. Judge Family Court and others (2013 CLC 470) it was observed that the constitutional jurisdiction of this Court cannot be ousted mere on the ground that alternate remedy of appeal or revision is available.
13. In case titled Muhammad Hussain and 2 others v. Mst. Zarin Akbar and 6 others (2017 CLC 1426) it was ruled that when the order is patently illegal and has been passed in violation of law the writ petition can be entertained to rectify the same.
14. As per Section 44(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, writ petition is competent if there is no alternate remedy provided by law. The impugned order could have been challenged through revision petition before the District Judge which was proper forum to judge the legality and validity of the same, hence, by leaving a statutory remedy available before Court of competent jurisdiction directly invoking the constitutional jurisdiction of this Court through captioned writ petition is not sustainable. The upshot of case law discussed above is that when the statutory forum is created by law for redressal of grievance, the writ petition should not be entertained. Non-entertainment of petition under the writ jurisdiction where efficacious or alternate remedy available, is not absolute law but rule of policy. Undoubtedly, it is within the discretion of this Court to grant relief under Section 44 of Azad Jammu and Kashmir Interim Constitution, 1974, despite existence of an alternate remedy, however, this Court must not interfere if there is an adequate, efficacious or alternate remedy available to a party and he has approached this Court by invoking writ jurisdiction without availing the same unless he has made out an exceptional case warranting such interference or there is sufficient grounds available to invoke, constitutional jurisdiction. In my considered view, this Court may exercise the writ jurisdiction in presence of alternate remedy in following eventualities : i) For enforcefnent of fundamental rights; ii) Where an order is necessary for natural justice; iii) Where proceedings / orders challenged through writ petition are wholly without jurisdiction; iv) Where an Act or its provision are challenged.
15. The learned counsel for the petitioners failed to bring her case within the exception and pleadings in the writ petition are very bald, which contain no statement to bring grievance within any of the above discussed exceptions. Argument advanced by the learned counsel for petitioners that revision is not efficacious remedy and order passed by trial Court is violative of fundamental rights is rhetorical and without any legal justification, hence, the same is repelled.
16. In view of above finding no substance in this petition, it is hereby dismissed in limine.