' This petition under Article 98 of the Constitution of Islamic Republic of Pakistan, 1962 was filed to call in question order of the Conciliation Court, dated 30-9-1964 and the order dated 10-12-1964 passed by Civil Judge, Lahore acting as revisional authority.
2. Facts giving rise to this petition, briefly stated, are that Maryam Bibi respondent No.1 filed a suit against the petitioner for the recovery of Rs.980 before the Chairman, Union Committee, Ward No.5 Lahore. Her case in the suit was that her husband had filed form N.C.H. for transfer of a house but he fell ill and the petitioner who was her neighbour assured her that he would get the house transferred in the name of her husband and that payment of the price was to be made in monthly instalments of Rs.40 each. She paid Rs.480 to the petitioner in instalments and then on his demand, Rs.500 were paid to the petitioner in lump sum. Later on, she came to know that the house in respect of which she has paid Rs.980 to the petitioner in the manner aforesaid has been disposed of in auction. On these allegations, she made a prayer that the petitioner had fraudulently deprived her of the aforementioned amount and that injustice done to her be redressed. Application/suit filed by respondent No.1 is Annexure 'A'.
3. Aforesaid suit of respondent No.2 was decreed in her favour vide judgment dated 22-8-1963. This decree was challenged by the petitioner in a revision petition which was accepted by the learned Senior Civil Judge by judgment dated 3-1-1964 on the short ground that the Conciliation Court was not property constituted and that no opportunity was afforded to the 'Mukhtar' of the petitioner to cross-examine the witnesses of the respondent. Case was, therefore, remanded with the directions regarding the mode of trial and procedure to be observed in the proceedings and parties were directed to appear before the Conciliation Court on 18-1-1964. As petitioner was not present before the revisional authority, it was directed that the trial Court should issue notice to him.
4. After the remand, notices were issued to the parties. Respondent No.1 appeared before the Chairman, Union Committee on 18-1-1964 but the petitioner did not appear and it was reported that he had gone to Hyderabad (Sind). Case was, therefore, adjourned to 19-4-1964 for which date notice through registered post was sent to the petitioner at his Hyderabad address but he did not accept the notice On the last mentioned date, respondent No.1 appeared and nominated her repre sentatives but petitioner remained absent. However, notice was once more issued to him for 3-5-1964 which he is shown to have received but he failed to appear on 3-5-1964. Ultimately notice was published in the newspaper for 24-5-1964 but the petitioner still did not join the proceedings.
He was, therefore, proceeded against ex parte. Statements of respondent No.1 and her witnesses were recorded afresh by the Conciliation Court. On the evidence produced by respondent No.1, it was found by the Conciliation Court that the petitioner had received Rs.980 from respondent No.1 falsely representing to her that this was the transfer price of the house which he would pay to the Settlement Department and get the house transferred to her and in this manner, he deprived respondent No.1 of Rs.980 through fraud and cheating. Suit of respondent No.1 was accordingly decreed by the Conciliation Court vide judgment dated 30-9-1964 (Annexure 'C') and the petitioner was directed to pay the decretal amount in lump sum to respondent No.l.
5. Petitioner preferred a revision petition against the aforesaid judgment and the sole ground pressed by him before the revisional authority as is evident from the order dated 10-12-1964 (Annexure 'E') was "that he has been condemned unheard". The learned Civil Judge who decided the petitioner's revision petition, on perusal of the record, came to the conclusion that the petitioner was served in person for 3-5-1964 but he absented himself on the said date and that he was finally served by means of notice published in the Press and even then he did not turn up. It was, therefore, held by the revisional authority that the procedure adopted and efforts made by the Conciliation Court for effecting service on the petitioner were highly appreciable and "the conduct of the petitioner has been most arrogant". With these findings, revisional authority dismissed the petitioner's revision petition by judgment dated 10-12-1964.
6. 1 have heard the learned counsel for the petitioner. Respondent No.1 though present in Court was unrepresented. The only point argued by the learned counsel for the petitioner is that the suit of respondent No.1 was founded on oral claim and not on contract in writing and as such the Conciliation Court had no jurisdiction to entertain and try the suit. In order to appreciate the contention of the learned counsel, it would be proper to reproduce section 3(1) (a) of the Conciliation Courts Ordinance, 1961 and section B of Part I of the Schedule attached to the Ordinance:- "Section 3(1) (a)
"Notwithstanding anything contained in Code of Criminal Procedure, 1898 (Act V of 1898), or in the Code of Civil Procedure 1908 (Act, V of 1908):-
(a) all cases falling under Part I of the Schedule shall, save as otherwise provided hereinafter, be referred to conciliation under this Ordinance, and no Civil or Criminal Court shall have juris diction to try any such case."
SECTION "B'--Civil Cases.
"1. Suit for the recovery of money due on contracts, receipts or other documents.
2. Suit for the recovery of movable property or for the value thereof.
3. Suit for compensation for wrongfully taking or damaging movable property.
' In the case of Union Councils, when the amount claimed or the price of movable property does not exceed five hundred rupees and ' In the case of Union and Town Committees, when the amount claimed, or the price of movable property, does not exceed one thousand rupees."
7. According to the learned counsel, the word 'contracts' in clause I of section B of Part I of the Schedule has been used alongwith words, "receipts or other documents" and as such the context in which the word 'contracts' has been used in the said provision indicated written 'contracts' only. In support of his submission, learned counsel placed reliance on Zameer-u-Din Ahmad v. Havas Khan PLD 1969 SC 57, wherein the word, 'contracts' was interpreted to mean written contracts. He also referred to Mir Ahmad v. Karam Khan PLD 1974 Pesh. 42 to support his contention that suit/application of respondent No.1 found on oral claim was not maintainable before the Conciliation Court. It was held in Mir Ahmad's case that in the absence of written contracts receipts or other documents, suit filed in the Union Council was entirely incompetent because the suits regarding the oral contract were not covered by the expression "contracts, receipts or other documents appearing in clause I of section B of Part I of the Schedule aforementioned.
8. In the present case, claim agitated by respondent No.1 befor the Conciliation Court was, of course, not based on any written contract, receipt or any other document. That being so, in view of the pro nouncement of the Supreme Court of Pakistan in Zameer-u-Din's case and the judgment of Peshawar High Court referred to above, suit/ application of respondent No.1 before the Conciliation Court was not competent. Thus, the proceedings taken and the impugned decree passed by the Conciliation Court on the suit/application of respondent No.1 suffered from want of jurisdiction.
However, notwithstanding this irresistible' conclusion, I am not inclined to interfere with the impugned orders in the exercise of my discretionary jurisdiction in view of the peculiar facts and circumstances of this case and particularly the conduct of the petitioner to be highlighted hereinbelow.
9. It is apparent from the record that the petitioner did not challenge the competency of the proceedings before the Conciliation Court. He, in fact, chose not to appear before the Conciliation Court notwithstanding the fact that he had notice of the proceedings. Whatever be the reason, the fact remains that no objection was raised to the maintainability of the proceedings before the Conciliation Court, although the petitioner had an opportunity to do so. Petitioner also appears to have approached the Revisional Authority thrice, each time by means of a revision petition against the orders passed in this case by the Conciliation Court but he is not shown to have raised any objection to the jurisdiction of the Conciliation Court and/or to the competency of the proceedings initiated by respondent No.1. Omission to raise objection before the Revisional Authority is evident from the order dated 3-1-1964 (Annexure 'B") passed by Senior Civil Judge, Lahore on petitioner's revision petition filed against the judgment/decree of the Conciliation Court dated 22-8-1963 and the grounds of revision petition (Annexure 'D) filed against last judgment/decree of Conciliation Court dated 30-9-1964 as also from the impugned order dated 10-12-1964 (Annexure 'E') passed by the learned Civil Judge exercising the power of District Judge, Lahore. Thus, having failed to raise the objection against the jurisdiction of Conciliation Court of maintainability of suit/application of respondent No.1 either before the Court of first instance or before the Revisional Authority, petitioner is now estopped by his conduct to take up this plea for the first time in writ jurisdiction. It is significant that the petitioner gave no reason/explanation even in the writ petition for his failure to take the objection before the lower Tibunals. Law is fairly well-settled that failure of a party to the proceedings to raise objection as to jurisdiction of the authority concerned at the earliest opportunity disentitles him to the grant of discretionary relief in writ jurisdiction. Reliance in this behalf is placed on Ghulam Mohi-ud-Din v. Chief Settlement Commissioner PLD 1964 SC 829.
Relevant qbservations are reproduced hereunder:- "Again one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise...The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdicton the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
10. Similar view was reaffirmed in Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729 in the following words:- "There was also another ground on which the writ petition of the respondents merited dismissal.
This was their conduct. They had twice challenged the orders of the Assistant Collector in appeals before the Collector under section 6 of the Punjab Land Revenue Act. They had also appeared without protest before the Member, Board of Revenue and even in their review application, in which they challenged for the first time the juris diction of the revenue authorities, they did not explain why they had not taken this objection earlier. Therefore, the petition merited dismissal on the short ground that the discretionary remedy of a Constitutional petition was not fit to be exercised in their favour in accordance with the rule laid down by this Court in Ghulam Mohi-ud-Din's case."
11. Principle that this Court may refuse to interfere in its Constitu tional jurisdiction even when the order impugned is held to be without jurisdiction also finds support from the judgment of Supreme Court of Pakistan in Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore 1978 SC MR 367, wherein, after reviewing the case law on the subject, it was held:- "There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches."
12. Viewed from yet another angle, petitioner is disentitled to the grant of equitable relief in the exercise of writ jurisdiction of this Court. It has been found as a fact by the Concilitation Court that the petitioner received Rs.980 from respondent No.1 by falsely representing to her that this was the transfer price of the house which he would get transferred to her from the Settlement Department and thereby petitioner deprived respondent No.1 of the aforesaid amount through fraud and cheating. This finding is not shown to have been challenged before the Revisional Authority. It was only vaguely stated in para. 5 of the revision petition Annexure 'D' that petitioner did not owe any money to respondent No.l. Allegations made by respondent No.1 in her suit/application Annexure 'A' and the findings recorded by the Conciliation Court were not denied by the petitioner as such. In any case, he did not press this point before the Revisional Authority. Petitioner having thus been found guilty of fraud and cheating is debarred from claiming equitable relief in writ jurisdiction. It need not be emphasised that this Court, in exercise of its Constitutional juris diction is bound to proceed on the' maxim "he who seeks equity must do equity" and a person guilty of fraud is debarred from seeking equitable relief. On this principle as also on the principle that a person who does not come to the Court with clean hands is not entitled to the .discretionary relief available from this Court in its writ jurisdiction, E petitioner whose conduct, to say the least, is not above board, cannot be allowed to invoke writ jurisdiction which is equitable and discre tionary. Reliance is placed on Syed Shah v. Political Agent, Bajaur Agency and 3 others PLD 1981 Pesh.
57.
13. Petitioner is liable to be non-suited in view of yet another well-established principle namely, that the writ jurisdiction being discretionary cannot be exercised to permit retention of ill-gotten gains by a party even if the order passed by a Tribunal is held to be unsustainable for any technical reason. As stated above, petitioner deprived respondent F, No.1 of Rs.980 through fraud and cheating. Striking down the impugned orders in the present case would amount to perpetuating a fraud and allowing the petitioner to retain the gains of his fraud. For this reason also I am not prepared to interfere with the impugned orders whereby a party wronged was given redress.
Reliance is placed on Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106.
14. Upshot of the above discussion is that notwithstanding the fact that the orders made in the present writ petition suffer from lack of jurisdiction, petitioner is held to be disentitled to the grant of equitable and discretionary relief in writ jurisdiction of this Court. Resultantly, this writ petition fails and the same is hereby dismissed with costs.