1. ' By this petition filed under Article 9 of the Provisional Constitution Order, 1981, the petitioner seeks.To impugn order, dated 27-11-1984 passed by the respondent No,1 in Case No, 1 of 1983 rejecting the application filed under Order IX, rule 9 and thus refused to set aside the order, dated 2-9-1984 closing the right of the petitioner to cross-examine the respondent's witness and to "restore" the matter to its original position.
1. The facts briefly stated are that the petitioner filed an application under section 12 of the West Pakistan Shops and Establishments Ordinance, 1969 before the respondent No,1 claiming Rs, 17,210.28 as the alleged legal dues from respondent No,2. This application was registered as Case No, 1 of 1983 (under section 12 of the said Ordinance of 1969). The respondent No,2 appeared in the case and contested the claim made against it. The case came up for hearing on 29-2-1984 when the petitioner examined himself and was cross-examined by the other side. His side was then closed. On the same day thereafter the respondent No,2 employer examined one Mr. Khairati as its witness. After the examination-in-chief of this witness was completed at the request of the petitioner the case was adjourned to 27-3-1984 for his cross-examination.
2. ' Thereafter, instead of completing the cross-examination of the witness the case was adjourned on a number of dates fixed by the Tribunal mainly for the reason that the petitioner and his counsel were found absent. The proceedings which took place in the case would be found narrated in the impugned order, the relevant portion of which is reproduced below:- "The fact, as a perusal of the case-diary reveals, is that, after the defence-witness had been examined on 29-2-1984, it was none other than the learned counsel for the applicant himself, who sought an adjournment for 27-3-1984 and, thereafter, for 26-4-1984 and 13-5-1984, when the case was adjourned once again by consent of the parties. The case-diary has not only been regularly written datewise, right from 29-2-1984, when the defence witness was examined, but also signed by the learned counsel for the applicant, without raising any objection, whatsoever. Besides, the learned counsel has miserably failed to explain on advance any reasonable or cogent ground for his absence or that of the applicant to attend the proceedings on 3-6-1984 and 10-7-1984. The learned counsel re-appeared on 31-7-1984, secured adjournment for 15-8-1984, and disappeared thereafter."
3. ' A perusal of the record of the Tribunal produced before this Court shows that after 31-7-1984 the case was taken up on 15-8-1984 when the petitioner was absent, and the case was adjourned to 2- 9-1984. On the last mentioned date the proceeding which took place recorded in the diary/order sheet is reproduced hereinbelow:- "Applicant and his counsel have failed to attend. Mr. Muhammad Humayun, Advocate for the Opposite party and defence witness Abdul Ratite are present.
4. ' Defence witness was examined as early as on 29-2-1984 and at the request of the counsel for the applicant, cross-examination was postponed to 27-3-1984.. Since then either the applicant has failed to attend, or sought adjournment. The defence witness has been, however, regularly attending and has not been cross-examined by the applicant.
5. ' The right of the applicant to cross-examine defence witness is, therefore, struck off. Opposite party close their side.
6. ' Mr. Muhammad Humayun, Advocate wants to file written arguments on 17-9-1984, at 9-00 a.m.
7. ' Adjourned."
8. ' On 17-9-1984 at the request of the Advocate for the respondent No,2 the case was adjourned to 30-9-1984 for filing of written arguments.
9. ' On 30-9-1984 an application was moved by the petitioner purporting to be under Order IX, rule 9, C.P.C. Stating therein that the order, dated 2-9-1984 may be set aside and the petitioner may be allowed to cross-examine the respondent's witness. This application was opposed. After hearing both the parties the respondent No,1/Tribunal dismissed the application holding that no satisfactory or reasonable ground was made out to justify the absence of the petitioner and his counsel on the various dates. Being aggrieved by the impugned order thus passed by the respondent No,1/Tribunal on 27-11-1984, the petitioner filed this petition invoking the constitutional jurisdiction of the Court.
10. I have heard at length both the learned counsel who appeared for the petitioners well as for the respondent No,2. However, I find that the impugned order passed by the respondent No,1/Tribunal o 27-11-1984 rejecting the prayer made to allow the petitioner to cross examine the witness by re- opening the matter, cannot be challenged by invoking the constitutional jurisdiction of this Court as fragmentation of proceedings and piecemeal decisions of cases cannot be allowed to be restored to or encouraged in order to avoid delay and the consequent inconvenience. Relevant here would be to refer to the case of Muhammad Saeed v. Mat. Saratul Fatima PLD 1978 Lah. 1459 wherein the principle laid down is reproduced herein below: "....The learned counsel for the appellant contends that as the very assumption of jurisdiction by the Rent Controller and the competence of the proceedings before him was under serious challenge, 'such an onerous order could not be passed without deciding these questions. Besides, the appellant has no statutory alternative remedy. He should not be forced to a situation where he commits a technical default, is visited with an order of eviction and gets a right of appeal in the hierarchy. It is, according to the learned counsel as eminently fit case for being entertained and dealt with in the constitutional jurisdiction of this Court.
11. ' The Legislature manifested its intent unequivocably by prescribing two broad categories of all 'orders passed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) by making the more determinative orders constituting the smaller category appealable and all others forming the larger category non-appealable. The scheme of such a categorization, the limits and the rationale thereof has been fully considered in Mian Manzar Bashir v. M.A. Asghar PLD 1978 SC 185.
12. It, therefore, follows that what the legislature held to be an interlocutory order not by itself fit to be appealable, should not by such a device be held fit enough to attract the more important, and at a higher level, the constitutional jurisdiction. Any contention, or practice to the contrary, would defeat and deflect the legislative intent, which has been disapproved in Mumtaz Hussain Bhutta v. Chief Administrator, Auqaf etc. 1976 SCMR 450.
13. There is yet another aspect of the case. The constitutions jurisdiction is invoked and made available in cases of imminent, grave and tangible threats to valuable personal and property rights and that too subject, inter alia, to the condition that the legal remedy, if at all any available, in the circumstances, I not efficacious or adequate. In this case, an order which by itself caused no tangible damage to the appellant, and is incapable of causing any, was challenged. In order to pose a real threat to him it has to be substituted by another order and the moment it so happens, a right of appeal would accrue to the appellant, which right is certainly more extensive and beneficial being available in the same hierarchy and on both questions of law as well as fact. Thus, the case of the petitioner was not a fit one to be entertained in constitutional jurisdiction."
14. ' The above rule was cited with approval by the Honourable Supreme Court in the case of Abdur Rehman v. Haji Mir Ahmed Khan and another PLD 1983 SC 21.
15. ' Mr. Suleman Habibullah, learned Advocate, however, argued that the petitioner was prevented from appearing because the petitioner relied upon promises made by the respondent No,2 that a cheque in settlement of the petitioner's dues would be deposited with the Authority and thus under a bona fide belief that his presence was not necessary the petitioner could not attend before the Tribunal. I would not like to go into the merits of the plea thus raised and it would be open for the petitioner to raise such a plea as and when the final order is passed in the matter and the case is taken in appeal (if any) before the Appellate Tribunal as provided under the law, where the said point may be urged and that the said Appellate Tribunal would be competent to decide such a plea on its own merit. This Court, however, in exercise of its constitutional jurisdiction is not expected to interfere with interlocutory orders passed by tribunals particularly in view of the intention of the legislature as expressed in the statute which does not make such orders even appealable under the relevant provisions.
16. ' The upshot of the above discussion is that this . In the circumstances the parties are left to bear their own costs.