AHMAD ALI, J. The present petitioners invoke the equitable jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeking that; "It is most humbly prayed that on acceptance of the instant petition: i. That impugned orders passed by learned respondents No.2 to 5 may please be declared as wrong, illegal, against the law and facts, arbitrary , fanciful, perverse, without lawful authority , unconstitutional hence being not maintainable in the eye of law hence be struck down. ii. That, the case file be remanded back to the learned respondent No.2 to decide the same after affording opportunity to produce the defence evidence and of being heard to the petitioners and decide the same on merits after recording of evidence. iii. Or nay other writ, order or relief which this Honourable Court may deem fit and proper in the circumstances of the case, may also be passed/issued.
2. The brief and essential facts leading to the present constitutional petition are that respondent No.1 filed applications for partition of landed property against the predecessor of the petitioners before the Revenue Officer, Balakot. The predecessor of the petitioners was summoned, who appeared before the Court and contested the applications by filing replications. During the partition proceedings, the present petitioners filed a suit seeking declaration about title of the disputed land and also moved application to stay partition proceedings. The application for stay and the suit filed by the petitioners were dismissed up to the High Court. The evidence of respondent No.1 was recorded and closed on 02.03.2002. Thereafter , the case was fixed for evidence of the petitioners. The present petitioners after repeated orders of the trial Court could not produce their evidence and the case was being adjourned at the request of the petitioners. The trial court vide order dated 23.04.2002 provided a last opportunity to the petitioners to produce their evidence on next date of hearing , but they failed to do so. Finally , the trial court struck off the defence of the petitioners under Order 17 Rule 3 of the Code of Civil Procedure, 1908 vide the impugned order dated 29.04.2002 and accepted the partition applications filed by the petitioners.
3. Aggrieved thereof, the petitioners filed appeal, which was dismissed by the Additional Deputy Commissioner , Mansehra (Respondent No.2) vide order dated 12.02.2004. The said order was impugned by the present petitioners through a revision petition before the Additional Commissioner , Hazara Division, Abbottabad, which too was dismissed by him vide order dated 31.08.2006. Subsequently , the petitioners filed 2" revision petition before the Member Board of Revenue, Khyber Pakhtunkhwa, Peshawar , however , the said revision was also dismissed vide impugned order dated 29.1 1.2016. Hence, the present writ petition.
4. Learned counsel for the present petitioners vehemently argued that the courts below , have failed to exercise their jurisdiction in accordance with law and the valuable rights of the petitioners had been dealt with in a hasty manner without providing them opportunity of adducing evidence as is required under the law; that the trial court instead of providing opportunity to the petitioners to produce their evidence decided the partition applications on the said date by striking of f the defence of the petitioners under Order 17 Rule 3 of CPC.
5. Conversely , learned counsel for respo ndent No.1 contended that the learned trial Court has provided several opportunities to the petitioners to produce their evidence but they did not avail those opportunities despite the final chance given to them on 23.04.2002; learned counsel further contended that the conduct of the petitioners throughout the proceedings remained apathetic only to avert the partition procee dings; he finally argued that the defence of the petitioners was rightly struck off and that the learned appellate and revisional Courts while agreeing with the findings of the learned trial Court dismissed the appeal as well as revision of the petitioners by recording a well reasoned judgment, as such, the conclusion drawn requires no interference in the facts and circumstances of the case. Learned counsel for respondent No.1 in support of his arguments referred to judgments reported as 2002 CLC 1039 , 1999 CLC 232, 2012 CLC 709, PLJ 2010 Lahore 432, 2008 SCMR 322, 2014 SCMR 637, 1996 SCMR 1967 and 2020 SCMR 300 .
6. Arguments of the learned counsel for the parties heard and the record perused.
7. In order to invoke the constitutional jurisdiction of this court; the petitioners have to show their bona fide of approaching this equitable Court with clean hands. In this regard, the august Supreme Court of Pakistan in Nawab Syed Raunaq Ali's case (PLD 1973 SC 236) and following the dictum, the august Apex Court has in Secretary to the Government of Punjab Vs. Ghulam Nabi ( PLD 2001 SC 415 ) reiterated that; "Therefore, High Court is not bound to grant relief to a petitioner simply because he was legally entitled to it, if the grant of such relief is immoral, unfair or against the dictates of good conscious and fair play. It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality or void action or order is impugned. The court is to see, whether the grant of relief prayed for will foster the cause of justice or will it perpetuate injustice. If the Court finds that in a given case though the action taken by the authority is illegal but setting aside of such an illegal action would result in miscarriage of justice instead of advancing the cause of justice, the Court may decline to press into service its constitutional jurisdiction."
In view of the above settled principle of law, the conduct of the petitioners before the trial court, wherein they despite repeated orders were unable to record the testimony of their witnesses, delayed the proceedings on one pretext or the other . Similarly , they delayed the proceedings in the appellate as well as revisional Courts, which is not positive attribute of the petitioners manifested by their conduct in approaching the equitable jurisdiction of this Court. Thus, their conduct surely denies them the right to claim equity , when they have not come to the equitable Court with clean hands. It is settled law that constitutional jurisdiction is always discretionary in character and it is also settled principle of law that One who seeks equity must do equity . Reference may be made to case titled 'Muhammad Ali Vs. Province of KPK through Secretary , Elementary and Secondary Education, Peshawar'
(2010 SCMR 673).
8. The august Supreme Court of Pakistan in the case titled 'Moon Enterpriser CNG Station, Rawalpindi Vs. Suit Northern Gas Pipelines Limited, through General Manager , Rawalpindi and another' (2020 SCMR 300), while dealing with a similar question of law pertaining to application of Order-XVII Rule 3 C.P.C, has in unequivocal terms, held that: "In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforc e its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason.
Where the Court has passed an order granting the last opportunity , it has not only passed a judicial order but also made a promise to the parti es to the lis that no further adjournm ents will be granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa) make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith."
This Court finds that in this case a sister (respondent No.1) is seeking right of partition of her property from her brother (predecessor of petitioners) but she could not get her right finalized due to the sluggish conduct of the petitioners towards the proceedings and they have made every effort to prolong and delay the partition of the landed property for the last about nineteen years without any just and reasonable cause so that the matter could not reach the final decision. The impugned decisions are well reasoned and have provided the present petitioners ample and suf ficient opportunity of pleading their case in a reasonable and suf ficient manner .
9. For the reasons stated hereinabove, this Court finds that the present petition does not merit acceptance. Hence, the present petition is dismissed, in limine.