' By this petition filed under Article 9 of P. C.
0. 1981, the petitioners seek to challenge the order passed by the Additional Settlement Commissioner on 4th May, 1971.
' Facts briefly stated are that Muhammad All (predecessor of the petitioners) and his three brothers on basis of their possession, were transferred the property described as,Custodian No, E-419 situated at EIS derabad .
' One Bundoo Khan, predecessor of the respondents Nos. 1 and 2, also applied for and was transferred property which was given Custodian No, E/423, Hyderabad.
' Subsequently litigation started between the parties, as to the identity of the properties transferred to the parties and their respective City survey numbers, which led to the passing of the order dated 26th February, 1966 by the Deputy Settlement Commissioner, who defined the houses transferred to the respective parties, and held the same to be portions of the same building bearing No, E-419.
' Against the above order, Bundoo Khan filed an appeal before the Additional Settlement Commissioner who by order passed on 4th May, 1971 set aside the aforementioned order dated 26th February, :1966 and remanded the case to the Deputy Settlement Commissioner with the direction to decide the case afresh after hearing the parties and inspection of site, if necessary.
2. Muhammad Ali challenged the above order dated 4th July, 1971 passed by the Additional Settlement Commissioner by filing Suit No, 269/1971 in the Court of Civil Judge, Hyderabad, wherein it was prayed that the said order be declared as mala fide. Without jurisdiction and hence void.
Permanent injunction was also prayed for restraining the Settlement Authorities and heir of Bundoo Khan from acting upon or giving effect to the said order.
' The learned Civil Judge on 11th January, 1978 decreed the suit as prayed. Pertinent to note, are the following observations made by the learned Civil Judge in his judgment :-- "Last, order passed by the Settlement Department on the basis of which the P. T. D. In favour of Muhammad Ali and his brothers were issued is order dated 26th February, 1966 for correction of C.
S. No, E/423 to 419 which was corrected on the basis of report Exh.
52.
' In view of the above portion in possession of Muhammad All and Bundoo has been transferred to Bundoo Khan and portion in possession of Abdul Majid, Abdul Rashid and Abdul Ghafoor transferred to jointly M/s. Abdul Majid, Abdul Ghafoor, Abdul Rashid and Muhammad Ali."
3. The consequence of the passing of the decree in the above suit was that the order dated 4th May, 1971 whereby the Additional Settlement Commissioner ordered the remand of the case to the Deputy Settlement Commissioner to decide the case afresh stood set aside and the order dated 26th February, 1966 passed by the Deputy Settlement Commissioner whereby the respective parties were declared transferees in the manner stated therein continues to hold the field.
4. After passing of the decrees on 11th January, 1978 as mentioned above the petitioners, who as legal representatives of late Muhammad Ali were parties to the said suit with a lapse of almost four years, filed this petition on 21st December, 1981 wherein now they seek a direction from this Court that the order dated 4th May, 1971 passed by the Additional Settlement Commissioner be given effect to and the case thereby remanded be ordered to be decided finally by the authorised officer of the Board of Revenue. Certain other reliefs have also been claimed but they are all subsidiary to the direction sought as above by the petitioners.
5. At the time of hearing, two questions arose for consideration. Firstly, if the petitioners could maintain this petition to claim relief to enforce the order dated 4th May. 1971 passed by the Additional Settlement Commissioner which order by decree passed in their own suit No, 269 of 1971 has already been held to be without jurisdiction and void; and further parties were restrained from acting upon or giving effect to the same. Secondly, what would be the effect of suppression of the fact of the passing of the decree in suit No, 269/71.
6. Mr. Muhammad Ali Shaikh the learned counsel for the petitioners submitted that order dated 4th May, 1971 was passed by tin Additional Settlement Commissioner under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 and that the jurisdiction of the Civil Court to entertain Suit No, 269/1971 (filed by the petitioners/ their predecesser Muhammad Ali) was barred under section 25 of the said Act of 1958. It was then contended that the decree passed in the above-mentioned suit was a nullity in the eyes of the law and accordingly this petition has been competently filed for seeking to enforce the order dated 4th May, 1971 passed by the Additional Settlement Commissioner.
7. I have carefully considered the above arguments of the learned counsel and find that the same are based upon misconception. In the first place we find that it was Muhammad Ali himself who had filed the suit (to which suit the petitioners were subsequently joined as parties on the death of said Muhammad Ali) and invoked the jurisdiction of the Civil Court and succeeded in obtaining the decree consequent to which the order dated 4th May, 1971, passed by the Additional Settlement Commissioner was declared as without jurisdiction and the Settlement authorities as well as the heirs of Bundoo Khan were restrained from acting upon and enforcing the said order.
8. The petitioners thus having by their own conduct led the Civil Court to pass a decree on 11th January, 1978 as above in their favour, cannot now be permitted to give a go-bye to the said decree and seek to enforce through this petition filed under Article 9 of P. C. O., 1981 the same order dated 4th May, 1971 which they earlier got declared void by filing of the suit in Civil Court.
' Reference may be made to the case of Abdul Waheed and others v. Habib Ali and others a judgment of the Division Bench in which the opinion was delivered by Mr. Justice Zullah (as he then1 was) wherein it was observed as follows :- "If the party, by its conduct, obliges the Court to adopt a course which is contrary to its practice, that party will be debarred from raising the objection as to the procedure, on the very salutary principle that after having led the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenge the same."
The principle of estoppel by conduct applies with full force to the situation prevailing in this case.
The petitioners themselves, had invoked the jurisdiction of the Civil Court and got the decree, they now, are debarred from raising the objection that the Civil Court ought not to have entertained and decreed their suit. They are estopped from doing so on the salutary principle that after having led the Court to pass a decree, which attained finality and resulted in consequences, none of them can be allowed to challenge the said decree or ignore the same.
' I would also like to refer here to the following observations made in the case of S. E. Makudam Mahommad v. T. V. Muhammad Sheikh Abdul Kadir and another which were cited with approval by the learned High Court in the case of Abdul Wahab v. Habib Ali- "When a party invites the Court to adopt a procedure which is not/ contemplated by the Civil P. C., and is in fact a procedure extra cursum curiae, he cannot turn round and say that the Court is to blame for adopting the very procedure which he invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fasion. As was held in 1896 A. C. 136, where with the acquiescence of parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course. Lord Watson observed in that case that there were several decisions of the House of Lords which affirmed :- "That the judgment of the Court below pronounced extra cursumtA curiae, is in the nature of an arbiter's award and that as a general rule at least no appeal from it will lie."
' Reference may also be made to the authoritative pronouncement in the case of Mirza Muhammad Yaqub v. The Chief Settlement Commissioner and others where the Honourable Supreme Court laid, down the principle governing the filing of fresh petitions by taking up different pleas at different times as follows :- , "There is still further difficulty. Even at the time when the first writ petition was filed the appellant could have relied on sub-para 15 (3). That petition was dismissed and no appeal was filed against the order of the High Court dismissing it. Nothing occurred subsequently which could entitle the appellant to file a fresh petition. A petitioner is not entitled to take different pleas at different times so as to file more than one writ petition on the same facts. For further plea the proper course would be to file a petition for review if such a petition be maintainable. The general principle of res judicata is applicable to writ petitions also."
' The above principle laid down authoritatively by the Honourable Supreme Court applies with full force to the facts of the present case. The petitioners having taken up a cause on the basis of which they filed the suit in the Civil Court and obtained a decree certainly would not be entitled to ignore the said decree and file a petition invoking the constitutional jurisdiction of this Court claiming the relief that the same order dated 4th May, 1971 which had earlier been declared as without lawful authority and void, be now ordered to be enforced by this Court.
9. I would also like here to refer with advantage to the case of Mst. Ismat Khanum Toor v. Rao Riaz All Khan and others, where the Honourable Supreme Court held that in the exercise of its constitutional jurisdiction the High Court would not convert itself into an appellate Court, re- appraise the evidence on record and consequently set aside the findings of the Courts below. This observation lays down a guideline authoritatively which completely negatives the attempt made by the petitioners to press this petition as if it was an appeal against the judgment and decree2 3 4 dated 11th January, 1978 passed in Suit No, 269/71 and to show that the said judgment and decree ought not to have been passed and he set aside. Such a course in my opinion cannot be allowed by invoking extraordinary jurisdiction of this Court under the Constitution.
' Reference may here be made to the case of Muhammad Idris v. East Pakistan Timber Merchants Group and another, wherein the principle laid down in the case of Dr. M.0. Ghani v. Dr. A. N.
Mahmood, was reaffirmed holding that even where the same questions are pending decision in a civil litigation the High Court should not during the pendency of that litigation take upon itself to decide the same questions in exercise of its constitutional jurisdiction and that the concerned party should be left to peruse their litigations in the ordinary course and that resort to the High Court's summary jurisdiction should not be permitted if it amounts to circumvention of the normal process of law.
10. Significant fact which perusal of the record further discloses is', that the petitioners, have not even cared to challenge the said judgment and decree passed in that suit. Thus, the judgment and decree dated 11th January, 1978 passed in Suit No, 269/1971 even in this petition and even otherwise remained unchallenged.
11. This brings us to the consideration of the second question which arose in this case as to the effect of suppression of the fact from this Court, while presenting the petition, as to the filing of Suit No, 269 of 1971 and passing of decree whereby the order dated 4th May, 1971 of the Additional Settlement Commissioner, was declared to be without jurisdiction and injunction was granted therein against the respondents.
' Mr. Muhammad Ali Shaikh the learned counsel for the petitioners, could not advance any argument to justify the conduct of the petitioner and thus I find that the petitioners are guilty of suppressing material facts from this Court, and have thus disentitled themselves to grant of any relief from this Court in exercise of its discretionary jurisdiction. If any authority is needed reference be made to the case of Dalmia Cement Ltd. v. District Local Board, Karachi and Abdul Hannan v.
Assistant Director, Immigration Passports.
12. The petitioners while invoking jurisdiction of this Court under Article 9 of P.
0. C., 1981 obviously have not come to this Court with clean hands and for that reason as well, they are not entitled to any assistance from the Court. In the case of Sala; Shah v. Custodian of Evacuee Property, while dismissing the appeal, the Honourable Supreme Court took notice of the fact that the petitioner while filing fresh application before the Custodian had suppressed the fact of dismissal of an earlier application observed :- "It is an accepted principle that no person is entitled to any assistant from a Court or tribunal unless he comes with clean hands."
13. The upshot of the above discussion is that the petitioners are not only estopped from seeking any relief by way of enforcing the order dated 4th May, 1971 passed by the Additional Settlement Commissioner in view of the decree obtained by them in Suit No, 269 of 1971 from the Civil Court at Hyderabad but they are also not entitled to any assistance from this Court in exercise of its discretionary jurisdiction as the petitioners have not come to the Court with clean hands and are guilty of suppressing material facts.
' The petition in the circumstances is dismissed with costs. PLD 1969 Lah. 365 A 1 R 1936 Mad. 856 PLD 1966 SC 254 1978 SC MR 335 PLD 1968 SC 412 PLD 1966 SC 8025 6 7 8 9 1 2 3 4 5 6