Muhammad Naeem Anwar, J.- The petitioners have challenged the validity of judgment and decree of learned Additional District Judge-Ill, Bannu dated 16.12.2020, whereby their appeal was dismissed, consequently, the judgment and decree dated 31.10.2019 passed by learned Civil Judge-IX, Bannu was maintained.
02. Facts forming the back ground of the instant petition are that the respondent/plaintiff instituted a civil suit for declaration-cum-perpetual injunction to the effect that in pursuance to the advertisement, being qualified and eligible, respondent applied for the post of PTC as per requisite procedure. He has gone through the test and interview and secured 39.67 marks, but was not appointed, by the lethargic attitude of petitioners his fundamental and statutory rights have been infringed, as the petitioners have appointed the other candidates who were low in merit position. Respondent has also sought his appointment in view of the judgment rendered in W.P. No.75 dated 28.54.2004 of D.I. Khan Bench of this court. Petitioners were requested but to no avail, thus, having got no other adequate, equitable, efficacious, and appropriate remedy, hence, this petition.
03. Suit was contested by the petitioners on various legal and factual objections. After framing of issues, the parties were directed to produce their evidence. On completion of evidence, learned trial court vide its judgment dated 31.10.2019 decreed the suit of respondent/plaintiff; the petitioners/defendants assailed the same in appeal which was dismissed on 16.12.2020 and maintained the judgment and decree of the learned trial court, hence, this petition.
04. Learned counsel for petitioners contended that prior to institution of instant suit, respondent has filed WP No.412-B/2013 before this Court on the ground that he being the permanent resident of district Bannu and qualified in accordance with the advertisement applied for the post of PTC and after going through from the test & interview has secured 39.67 marks, however, the other candidates who were low in merit position were selected as such he was discriminated. During pendency of writ petition, on the direction of court, an inquiry was conducted by Additional Registrar of this Court, report whereof was submitted and was placed on file as Ex.PHC/1 and thereafter on 26.11.2015 W.P. No.412-B/2013 was dismissed. Similarly, a contempt of court petition No. 68- B/2015 in W.P. No.24-B/2013 was also filed by respondent along with one Habibullah which was dismissed on 26.11.2015, thereafter, by concealment of fact suit No. 137/1 was filed by him on 02.03.2018 on the same ground without disclosing the fact of filing of writ petition as well as the application for initiation of contempt of court proceeding, as such the decree granted by the learned courts below in his favor is required to be set-aside on the ground that on the same set of facts a matter was properly adjudicated and decided by this Court could not be re- agitated before civil court, therefore, the suit filed by him from the very inception was not maintainable.
5. Conversely, learned counsel for respondent contended that no concealment was ever made by the him, but the suit was instituted when certain appointments were made in the year 2016-17 by the petitioners which was not only in violation of the settled principle of law that the appointments were to be made on the merit, but the respondents have also discriminated the petitioner through which a fresh cause of action was accrued in his favour which could never be termed as res-judicata or the matter decided between the parties. He further added that the instant petition has not been properly documented as the record on the basis of which both the learned courts below were reached to a definite conclusion has not been annexed therewith. He further added that the judgment of this Court rendered in WP No. 412-B/2013 was result of fraud, misrepresentation and concealment of facts. Lastly, he submitted that the concurrent findings of learned courts below cannot be set-at-naught unless the same proved to be the result of mis-reading and non-reading of record.
6. Arguments heard; record perused.
7. During the course of arguments, memorandum of W.P. No.412- B/2013 titled "Najibullah Vs Secretary Education Khyber Pakhtunkhwa and 04 others" were gone through. In order to determine as to whether the suit instituted by the respondent was on the basis of same set of facts through which his writ petition was decided by this court. The contents of the writ petition reveals that it was filed on the ground that he has scored 39.67 marks and stood higher in merit position against Shah Niaz s/o Mumrez and Sattar Khan s/o Sher Abbas Khan.
That respondents have discriminated him in acceptance of PTC certificate which was in violation of the judgment of this Court through which the respondents were directed that 25% quota shall be reserved for the candidates who have completed their course from Allama Iqbal Open University (AIOU), therefore, while appointing respondent No.4 & 5 of the writ petition, he was not treated in accordance with law. When the contents of the plaint were gone through it revealed that the factum of discrimination on the basis of appointment of Shah Niaz was also particularly mentioned besides Nasibullah and Mushtari. The plea of 25% quota for the candidates who have completed their course from AIOU was also one of the grounds of civil suit. It is pertinent to mention that not only the fact of decision in W.P. No.412-B/2013 was concealed but also the points agitated by the learned counsel regarding appointments made in the year 2016-17 did not find mention in the contents of the plaint.
08. Moreover, this Court has directed an inquiry to be made by Additional Registrar of this Court, to the effect that;
1. That how many vacant posts were advertised by the respondents' department in the year 1999?
2. That whether the petitioners had applied in consequence of the advertisement made by the respondents in the year 1999?
3. That whether anyone amongst the petitioners in all these petitions were denied appointment on the ground that they had qualified the required course from Allama Iqbal Open University Islamabad?
4. That whether anyone amongst the petitioners placed on merit list of successful candidates prepared in the year 1999? And
5. That now many candidates who were denied appointment on the mentioned grounds were, thereafter, appointed by the respondents in pursuance of the various judgments of this Court? "
09. After completion of inquiry, this Court was apprised to the effect that respondent was not refused appointment on the ground that he is qualified from Allama Iqbal Open University but on the ground that he was unable to make place in union Council/District open merit. On the basis of inquiry report his W.P and COC were dismissed.
When learned counsel for respondent was questioned about the concealment of fact regarding the institution of writ petition, filing of COC and the decision there on, he conceded it at the bar that these facts were required to be mentioned in the plaint before the learned trial court. He also admitted that the factum of the appointments made in the year 2016-17 was also not particularly mentioned in the plaint. The suit instituted under section 42 of the Specific Relief Act, 1877, for grant of declaratory decree which focuses on the rights of the Plaintiff and gives immense power to the Plaintiff to deal effectively against the defendant but with certain elements that: 1) The plaintiff at the time of suit was entitled to any legal character or any right to any Property.
2) The defendant had denied or was planning or interested in denying the rights of the plaintiff.
3) The declaration asked for should be the same as the declaration that the plaintiff was entitled to a right.
4) The plaintiff was not in a position to claim a further relief than a mere declaration of his rights which have been denied by the defendant.
10. Inquiry report and the judgment in writ petition is self explanatory, that neither the respondent has got any right nor his any such right was ever violated rather the respondent/plaintiff has concealed this fact from the court. A discretion is to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. In fact, it was of discretionary relief which is to be granted on the basis of the facts, statutory provision of law within the parameter of discretion which must be exercised equitably, justly and in accordance with law. When the respondent/plaintiff himself concealed the fact from the court and when it was brought into the notice of this Court irrespective of the fact that these points were not categorically mentioned in the memorandum of instant civil revision petition, this being the question of law and not denied could validly be re- agitated by the petitioner. Concealment of fact is a ground to preclude the respondent from the relief so claimed by him before the trial court. In fact, the judgment and decree of both the learned courts below is based upon the concealment of fact. Had the petitioners mentioned the facts regarding institution of writ petition and dismissal thereof on the same set of grounds which were taken in the contents of the plaint the result would be totally different. Reliance is placed on case title "Fazal Hussain Vs. Deputy Diretor, Administration & Housing Management, Kot Lakhpat Housing Project, Township Lahore" (PLD 1987 Lahore 297). It is settled law that one who seek equity must come to the court with clean hands, as the petitioner has concealed material facts from this court as such this court is not inclined to exercise its discretion in favour of petitioner. In case titled "Telecard Limited through Authorized Representative Vs. Federation of Pakistan through Secretary Ministry of Information and Technology and another" (2017 CLC note 81) Hon'ble Sindh High Court has held that: - "From the perusal of order and judgments passed by the Lahore High Court, Islamabad High Court and the august Supreme Court, demonstrate that the petitioner has already agitated almost identical grounds and claims before the superior Courts and failed to get any advantageous verdict in its favour. Therefore, the petitioner by the concealment of certain relevant facts preferred the instant petition for the similar nature relief which have already been declined by the superior Courts"
The principle of law settled by the apex court and by this court leaves no room for a person who conceal the facts from the civil court especially when the matter has earlier already been adjudicated upon by this Court, he could not be considered entitled for any relief from the court.
11. It is pertinent to mention that though there are concurrent findings of both the courts however, the Hon'ble Supreme Court of Pakistan has held in case titled "Nazim ud Din and others v. Sh. Zia ul Qamar and others"
(2016 SCMR 24) and "Noor Muhammad and others v. Mst. Azmat-e-Bibi" (2012 SCMR 1373) that erroneous concurrent findings based on misreading and non-reading of evidence are no longer sacrosanct. The judgments and decrees of both the learned courts below are not immune from interference of this Court by invoking revisional jurisdiction U/S.115 of Civil Procedure Code provided the judgments and decrees are the result of concealment of fact, mis-reading and non-reading of record and by not filing the suit with clean hand, as such for the reasons discussed above, the instant petition stands allowed, consequently, the judgments and decrees of both the courts below are set-aside and the suit filed by the respondent/plaintiff stands dismissed. The parties shall bear their own costs.