Raheel Kamran, J. This judgment shall dispose of the titled writ petition as well as F.A.O. No.55/2021 as the same have nexus and involve common questions of law and fact.
2. Through the titled writ petition, the petitioner has prayed for a direction to respondents & 2 to get vacated residential quarter GOR-II, Colony, Multan from respondent No.3 and deliver possession of the same to the petitioner without any further loss of time. The above writ petition has been filed since 30.1.2021 on the basis that the petitioner is working in the First Aider Office of Civil Defence, Multan who moved an application before respondent for the allotment of official residence to him and the Quarter was allotted to him vide order dated 09.01.2020.
3. The respondent No. 3 has opposed the titled writ petition on the basis that previously the Quarter was allotted to him while he was serving as Junior Clerk in the Office of Commissioner, Multan, however, he was compulsorily retired under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 on charges of corruption and consequently his allotment of the Quarter was cancelled through the same order dated 09.01.2020 whereby the petitioner was allotted the Quarter. Respondent No.3 filed a suit for declaration and permanent injunction in the court No.1 No.12/3 Wahdat ("Quarter ") No.1 of learned Civil Judge, Multan challenging the aforementioned order dated 09.01.2020 ("Suit"). By order dated 16.01.2020, the learned Civil Judge was pleased to grant an ad- interim injunction restraining his dispossession from the Quarter, however, by order and decree dated 15.01.2021 the Suit was dismissed. Respondent No.3, being aggrieved, preferred an appeal against the order and decree dated 15.01.2021, which was admitted for regular hearing by the learned Additional District Judge, Multan on 18.01.2021 who was pleased to interim relief against dispossession of respondent No.3 from the Quarter. Meanwhile, the Petitioner filed the titled writ petition wherein notice was ordered to be issued to respondent No.3 on 01.02.2021. The injunctive order dated 18.01.2021 was extended from time to time until it was recalled by the learned Additional District Judge, Multan by order dated 06.08.2021, which has been assailed in FAO No. 55 of 2021 ("Appeal"). It may be pertinent to mention here that possession of Quarter has been taken from respondent No.3 on 09.08.2021 and delivered to the petitioner.
4. Learned counsel for the petitioner contends that after his compulsory retirement, respondent No.3 did not remain a government servant, therefore, he was not entitled to retain possession of the Quarter; that respondent No.1 acted quite in accordance with law while issuing the order dated 09.01.2020 whereby the allotment of respondent No.3 was cancelled upon his compulsory retirement and the Quarter was allotted to the petitioner; that respondent No.3 was not at all entitled in law or equity for the grant of any injunction by the learned Civil Judge, Multan in the Suit nor by the learned Additional District Judge Multan in the appeal preferred by him on 18.01.2021; that the injunctive order dated 18.01.2021 was obtained by respondent No.3 while exercisi ng fraud, misrepresentation and concealment of material facts that this was his second appeal assailing the order and decree dated 15.01.2021 and that his earlier appeal was dismissed as withdrawn; that the petitioner is very much entitled to the government accommodation in accordance with law and the policy in vogue, therefore, allotment of the Quarter to him and delivery of possession thereof is only in consonance with law, justice and equity in the facts and circumstances of the case.
5. Learned counsel for respondent No.3 (appellant in FAO No.55/2021) on the other hand contends that appeal of respondent No.3 against the order of his compulsory retirement was still pending before the learned Punjab Service Tribunal ("Tribunal "), therefore, he was entitled to retain possession of Quarter; that the titled writ petition was liable to be dismissed as the order dated 09.01.2020 for cancellation of his allotment of the Quarter during pendency of his service appeal was unwarranted by law; that adequate opportunity of hearing was not provided to respondent No.3 as mother of his counsel had died a few days earlier and request for an adjournment was sought, however , learned Additional District Judge acted in undue haste while recalling the injunctive order dated 18.01.2021; and that the first appeal filed by respondent No.3 against the order and decree dated 15.01.2021 did not come in his way to prefer the second appeal which was maintainable in law and concealment of this fact was inconsequential.
6. Arguments heard. Record perused.
7. Who amongst petitioner and responde nt No.3 is entitled to the government accommodation namely the Quarter is the primary question involved in these cases. In other words, whether the order dated 09.01.2020 was lawful and enforceable, as claimed by the petitioner , or the same was illegal, therefore, respondent No.3 was entitled to the grant of injunction against his dispossession. The other issue involved here relates to vires of the order dated 06.08.2021 recalling the injunctive order passed in favour of respondent No.3 in the Appeal.
8. The Quarter is admittedly owned by Government of the Punjab. It was allotted to the Petitioner by order dated 09.01.2020. Previously , the Quarter was allotted to respondent No. 3 while he was serving as junior clerk in the office of Commissioner , Multan. Respondent No.3 was compulsorily retired from the above service on 28.09.2019 on charges of corruption. The order dated 09.01.2020 for cancellation of allotment of the Quarter to respondent No.3 was issued in consequence of his compulsory retirement from service and for allotment of the same to the petitioner who is a First Aider in the of fice of Civil Defence, Multan.
9. There is nothing available on record to question entitlement of the petitioner to the allotment of the Quarter . What has been questioned is the cancellation of allotment of the Quarter to respondent No.3 on the basis: that he had preferred an appeal against the order for his compulsory retirement which was admitted by and pending before the Tribunal; that in any event, in terms of Paragraph No. 27(ii) of the Policy Governing Allotment of Residential Government Accommodation at District Level. 2002 ("Allotment Policy"), he was entitled to retain the Government residence for a period of two months after his retirement; and that his children were studying in various educational institutions, such entitlement was further extendable by another six months in terms of paragraph No.27(iii) of the Allotment Policy.
10. It is noteworthy that by order and decree dated 15.01.2021, the Suit was dismissed by the learned Civil Judge, Multan for reasons: that undisputedly the respondent No.3 was compulsorily retired with effect from 28.09.2020 and in terms of Paragraph No. 27(ii) of the Allotment Policy, he was not entitled to retain possession of the Quarter for more than two months period; that further extension in retention could be given for six months on payment of normal rent and that too was subject to the exercise of discretion by the competent authority; that respondent continued to retain possession of the Quarter for more than one year and four months since his compulsory retirement, which is far beyond his alleged entitlement; that the suit was barred in view of Section 10 of the Punjab Government Lands and Buildings (Recovery of Possession) Ordinance, 1966; that in the absence of any interim relief granted to him by the Tribunal against his compulsory retirement, status of respondent No.3 remained that of compulsorily retired servant w.e.f.28. 09.2020 and he was not entitled to retain possession of the Quarter.
11. Against the order and decree dated 15.01.2021, respondent No.3 preferred two appeals. The first appeal was preferred on 16.01.2021 (available on page 25 of the titled writ petition) wherein pre-admission notice along with registered envelop A.D. was ordered to be issued to respondents for 21.01.2021. No ad-interim relief was granted to respondent No. 3 in the said appeal. Thereafter , respondent No.3, while concealing and suppressing the above facts, preferred another appeal on 18.01 .2021 against the aforementioned order and decree dated 15.01.2021, which was admitted to regular hearing by the learned Additional District Judge, Multan and an injunctive order dated 18.01.2021 was passed restraining his dispossession on the ground that appeal of respondent No.3 against his compulsory retirement was pending before the Tribunal. The earlier appeal filed by respondent No.3 challenging order and decree dated 15.01.2021 was withdrawn on 19.01.2021. It is pertinent to note here that respondent No.3 did not rely on Paragraph No. 27(ii) of the Allotment Policy after the said plea was persuasively rejected by the learned Civil Judge, Multan while dismissing the Suit, rather his case in appeal rests essentially on the argument that the appeal against his compulsory retirement is pending before the Tribunal, which according to him entitles him to retain possession of the Quarter.
12. There is no legal obligation of the government to provide residential accommodation to its employees nor a government servant has any vested legal right or claim to the allotment of the government owned residential accommodation. There is a scarcity of resources available with the state in this regard. However , allotment of the government accommodation is a discretion, the exercise whereof is guided and structured by the Allotment Policy .
There is no entitlement to government accommodation save in accordance with allotment policy of the concerned government . Only the Government Servants workin g in the District notified by the Deputy Commissioner are eligible for allotment of the Government owned accommodation. There is no provision in the Allotment Policy for allowing retention of the government accommodation till decision of any service appeal against compulsory retirement of a government servant. There exists a valid policy reason for not incorporating such a provision: should the Tribunal consider any order of dismissal from service or compulsory retirement to be prima facie unjustified, it has ample jurisdiction to suspend the same. Therefore, pendency of his appeal before the Tribunal ipso facto does not create any vested right in respondent No.3 to retain possession of the Quarter .
13. Section 42 of the Specific Relief Act, 1877 confers discretion upon a Court to grant declaration of status or right.
A relief under said section can be provide d only when the plaintif f in a suit is able to establish his or her entitlement to any legal character or to any right in property . The Suit filed by respondent No.3 was rightly dismissed by the learned Civil Judge, Multan on his failure to establish any right in the Quarter . His appeal against the order and decree dated 15.01.2021 was mechanically admitted by the learned Additional District Judge, Multan and the injunctive order dated 18.01.2021 was passed without application of judicious mind, as neither the essential ingredients governing the grant of injun ction in civil cases were considered nor valid reasons for restraining dispossession of respondent No. 3 from the Quarter were provided therein. No such relief could be granted to respondent No.3 by the learned Additional District Judge without establishing his prima facie entitlement under the Allotment Policy .
14. Undeniably the injunctive order passed on 18.01.2020 was passed in his second appeal preferred by respondent No.3 against the order and decree dated 15.01.2021 whereby the Suit filed by him was dismissed. The said appeal was preferred by respondent No.3 while his first one against the aforementioned order and decree was pending because no injunctive relief was granted to him in the first appeal. The injunctive order dated 18.01.2021 was obtained while concealing facts relating to filing and pendency of his first appeal. The first appeal was1 2 3 4 5 withdrawn by respondent No.3 on 19.01.2021 i.e. immediately after the grant of interim injunction in his second appeal. The propensity of respondent No.3 to indulge in concealment and suppression of facts is evident from the fact that even in his FAO No.55 of 2021 preferred before this Court, he neith er mentioned about filing and withdrawal of his first appeal before the learned Additional District Judge, Multan nor appended therewith any such document. The said concealment has been highlighted by the petitioner in the titled writ petition, which is duly supported by the relevant documents the authenticity whereof has not been questioned by the other side. The question begging answer is whether the above concealment facts was immaterial and inconsequential vis-a-vis the equitable relief prayed for .
15. The Code does not bar institution of a second suit on the same subject matter inter se the same parties during pendency of the first. The doctrine of res sub judice embodied in Section 10 of the Code, however, provides for the stay of trial in the suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The said principle extends in its application to appeals. It is not very uncommon in this part of the world that parties file more than one suits or appeals on the same subject against the same parties for different reasons, which may be justified or unjustified depending upon the facts and circumstances of each case, and subsequently withdraw the first suit or appeal. Under Order XXXIII of the Code, where a plaintiff withdraws a suit without permission of the court to institute any fresh suit in terms of rule 1(2) of the said Order on the same subject, he or she was precluded from instituting a fresh suit. However, the said rule and provisions have been held to be not applicable and no permission was required to be sought in a case where the fresh suit had already been filed and withdrawal of the first suit was sought thereafter. Such power is also exercisable in like manner by the Appellate Court. One possible consequence of the aforementioned rule could be a reduction in the number of cases in which permission of the court is sought to institute a fresh one, however, the level of such a reduction is a matter of empirical study and not something for this Court to dilate upon. Be that as it may, the practice of filing second suit or appeal before seeking withdrawal of the first is noticeable. This is significant because the permission required under rule 1(2) of Order XXXIII of the Code is not available as a matter of course but regulated by considerations specified therein, which are justiciable.
16. The principle that no permission is required to be sought for withdrawal of earlier suit or appeal in a case where a fresh one has already been filed, does not absolve a plaintif f or, as the case may be, an appellant from approaching the Court with clean hands to seek any equitable relief. Injunction is admittedly an equitable relief. It is trite law that injunction can only be issue d in aid of equity and justice and not in aid of injustice. He who would have equity must do equity and give effect to all equitable rights of the other party in respect of the lis. This means that the Court will not confer its equitable relief upon the party seeking its aid unless he had acknowledged and conceded all the equitable rights, claims and demands justly belonging to the adverse party , and growing out of or necessarily involved in the subject matter of controversy .
17. In this case, inequitable conduct of respondent No.3 is all over the place, therefore, he has disentitled himself for the grant of any equitable relief. The concealment and suppression of facts regarding filing and pendency of an earlier appeal, in the opinion of this Court, is material and consequential not only from the point of view of decision in this case but also from the perspective of administration of justice in civil cases. It is for this reason that Rule 1(a)(ix) of Part A to Chapter 1 (Judicial Business) in Volume V of Rules and Orders of the Lahore High Court requires that all judicial matters to be brought before the Court shall be accompanied by a certificate to the effect that as per instructions of the petitioner/applicant/appellant no such petition/application or appeal has earlier been filed in the High Court in this matter. If a petition, application or appeal is filed through a counsel, signing of the certificate is his responsibility, who is obliged to disclose correct information on instructions or otherwise if in his personal knowledge.
Any misstatement would lead to proceeding before the respective Bar Council in addition to rejection of relief for approaching the Court with unclean hands. Even though the Code does not stipulate such a Certificate, as a mandatory requirement of law, to be provided in relation to the proceedings before the courts subordinate to the High Court, nonetheless the High Courts and august Supreme Court frequently refuse to grant any equitable relief whenever the aforementioned inequitable conduct of a party to the proceedings is exposed.6 7 8 9 10 11 12 13
18. In this case, the reason for concealment of the fact of filing of an earlier appeal appears to be forum shopping in the sense that respondent No.3 wanted to take another chance in his second appe al against the order and decree dated 15.01.2021 before a different judge of the District Court from the one who earlier heard his case and did not provide him the ad-interim relief expected by the said respondent. The aforementioned concealment of facts diminished the probability of transfer of the second appeal to the same judge who heard the matter earlier.
Additionally, it helped respondent No.3 to avoid warning the new presiding officer regarding what had happened earlier otherwise that might have yielded a similar outcome. The possibility that respondent No.3 would have taken yet another chance in case no interim relief had been granted to him in his second appeal cannot be ruled out.
Such practice must be deprecated and arrested for otherwise it would give impetus to adventurists to enter the arena of litigation and undermine the solemnity of process of law and frustrate the course of justice.
19. Finally, the right to fair trial conferred by Article 10A applies to civil, criminal and administrative proceedings.
The requirement of fairness imposed under the said Article applies to civil and criminal proceedings taken as a whole. Fairness of the procedural safeguards, stricto sensu, the equality of arms is one of the hallmarks of such right. The principle of equality of arms, which is a judicial construct adopted by the European Court of Human Rights, means giving each party a reasonable possibility to present its cause in such conditions as would not put one party in disadvantage to its opponent. In other words, there must be a fair balance between the opportunities afforded to the parties involved in litigation. The principles of fair trial, as guaranteed by Article 10A of the Constitution, are to be read as an integral part of every sub-constitutional legislative instrument that deals with determination of civil rights and obligations of any person. The principle of equality of arms is, therefore, violated in every case where there is a concealment of facts regarding earlier proceedings that have been made apparently for forum shopping, as explained above. Such concealment or suppression would render the claim, suit or appeal of the concealing party to be void thus liable to outright rejection.
20. Now adverting to the vires of the order dated 06.08.2021, a perusal of the order-sheet in the second appeal preferred by respondent No.3 reveals that before recalling the injunctive order dated 15.01.2021, last opportunities were granted to the respondent No.3 by orders dated 23.06.2021, 17.07.2021, 28.07.2021 and 02.08.2021. Warning of the consequences in case of failure of respondent No.3 to argue the appeal was also provided by the learned presiding judge in the orders passed on 28.07.2021 and 02.08.2020. It has been held by the august Supreme Court of Pakistan that for the purpose of maintaining confidence of the litigants in the judicial system and presiding officers, where last and final opportunity was granted with a warning, failure should entail consequences provided in law. Needless to add here that no affidavit of counsel for respondent No.3 explaining the cause of his absence and failure to argue the appeal has been filed in the Appeal before this Court nor any other reliable document has been placed on record in this regard. Therefore, no case for procedural impropriety warranting interference in the order dated 06.08.2021 has been made out.
21. For the foregoing reasons, the injunctive order dated 18.01.2021 cannot be allowed to be restored by this Court and accordingly the Appeal preferred by respondent No.3 against order dated 06.08.2021 is dismissed.
Since the petitioner has been delivered possession of the Quarter on 09.08.2021, therefore, the titled writ petition is disposed of as having borne fruit. Agha Nadeem v. Additional secretary Welfare, Government of the Punjab [2013 PLC (C.S.) 306]; Shahab Mazhar Bhali v. Pakistan Railways [2014 PLC (C.S.) 356]. Paragraph 5 of the Allotment Policy. Syed Imran Raza Zaidi v. Govt. of the Punjab [1996 SCMR 645]. Rehmatullah Khan v. Government of Pakistan [2003 SCMR 50]; Malik Muhammad Khakan v. Trustees of the Port of Karachi [2008 SCMR 428]; Khurram Muggo v. Mst. Perveen Hameed Muggo [PLD 2007 Lah.
518]; Allah Dino etc. v. Ali Muhammad etc. [2016 YLR 890]; Baharo alias Bahar Ali v. Ghulam Rasool [2010 CLC 754]. Ministry of Inter-Provincial Co-ordination v. Major (R) Ahmad Nadeem Sadal [2014 SCMR 600].14 15 16 17 1 2 3 4 5 Gulam Nabi and others v. Custodian of Evacuee Property Pakistan [PLD 1983 SC 344]; Bank of Punjab v.
Messrs Gas Naturale (Pvt.) Ltd etc. [2017 CLD 959]; Section 107(2) of the Code Gulam Nabi and others v. Custodian of Evacuee Property Pakistan [PLD 1983 SC 344]; Bank of Punjab v.
Messrs Gas Naturale (Pvt.) Ltd etc. [2017 CLD 959]. Haji Muhammad Boota etc. v. Member Board of Revenue Punjab [PLD 2003 SC 979]; Raham Hussain v.
Abdul Raheem etc. [2007 MLD 1110]. Muhammad Yar etc. v. Muhammad Amin etc. [2013 SCMR 464]. Puri Terminal Limited v. Govt. of Pakistan [2004 SCMR 1092] Irshad Hussain v. Province of Punjab [PLD 2003 SC 344]; Syed Kamal Shah v. Govt. of N.W.F.P. [2010 SCMR 1377); Mst. Saeeda v. Province of Punjab [2013 CLC 454]; Sharifan Bibi v. Muhammad Abid Rasheed [2011 YLR 2396]. Mst. Hira Dar v. Govt. of the Punjab and others [PLD 2021 Lah 495]. Golder v. U.K. 1975 1 EHHR 524 Ministry of Interior, Govt. Of Pakistan v. the Special Court [PLD 2020 SC 82] Naveed Asghar and two others v. the State (PLD 2021 SC 600). Noon Enterprises CNG Station Rawalpindi v. SNGPL [2020 SCMR 300]