ABDUR REHMAN KHAN, J.---The legality of order dated 12-4-1989, of the Additional Secretary Home and Tribal Affairs Department Government of N.-W.F.P., respondent No.4, has been challenged in this petition under Article 199 of the Constitution, as the orders of the original and appellate Court, respondents 2 and 3, in favour of the petitioner were set aside and the case was remanded for trial under the provisions of N.-W.F.P. Civil Procedure (Special Provisions) Act, 1977.
2. The dispute arose between the petitioner and respondent No.1, when the latter filed a suit against the former for declaration of his rights and for restraining the respondents from interference in the property in question. The respondent No. 1-controverted this claim through his written statement.
However, both the parties agreed in their statements before the Deputy Commissioner that the matter be referred for Shari decision to a panel of three Ulemas named therein. The Ulemas submitted a divided verdict and the Deputy Commissioner, respondent No.2 adopted the majority decision and accordingly dismissed the suit. Respondent No.1 approached the learned Commissioner, respondent No.2, in appeal but with no success but the revision moved by him before the learned Additional Secretary, respondent No.4, was accepted through the impugned order and resultantly it was ordered that the case should be tried by a Jirga, to be constituted under N.-W.F.P. Civil Procedure (Special Provisions) Act, 1977.
3. The learned counsel appearing for the petitioner argued that respondent No.4 has legally erred in holding that the Deputy Commissioner was not competent to refer the dispute for adjudication to a forum other than the one contemplated in N.W.F.P. Act IX of 1977 and that the reliance of the said respondent on a distinguishable decision in Writ Petition No. 137 of 1983 was misplaced. The learned counsel also pointed out the oath which his client took in support of his claim and also referred to certain factual aspects which, however, were not much consequential. The learned counsel pleading the cause of respondent No.1 refuted these submissions and instead argued that the Deputy Commissioner was not competent to refer the case to the Ulemas for decision. He even otherwise criticised the manipulation in the names of Ulemas selected for decision, as according to him, the name of Maulana Bostan has illegally been cut and that of Maulvi Khairun Nass has been added without the consent of his client and also urged that Maulvi Khairun Nass has never participated in the proceedings and, therefore, his client was not bound by his decision. According to him, if his decision is excluded then the verdict would not remain as that of the majority. He also made reference to the application of his client blaming Qazi Abdul Haleem for accepting Rs.2,000 from him as illegal gratification and the enquiry file which was prepared to look into the allegation of bribery. He was, therefore, of the view that Oazi Abdul Haleem rendered himself unfit to perform his duties as adjudicator. He also contended that reference of the decision before other Ulemas for verification/confirmation, as according to him the respondent had not consented to such a course but has rather objected to it in writing.
4. We went through the relevant record in the light of the arguments addressed at the bar.
5. The facts, in writ petition Mir Afzal Khan v. Government of N.W.F.P. (No. 137 of 1983) relied by the Additional Secretary respondent No.4, were completely distinguishable from the facts of the present case, as in that case the matter was not referred to the Qazis for adjudication with the consent of the parties but in this case the parties agreed in writing for decision of the case through the Ulemas specified in the statement. Thereafter, in pursuance of the acquiescence they regularly participated in the proceeding, led evidence and never raised any objection either before the Deputy Commissioner or the A appellate Court. It is thus evident that respondent No. 4 was estopped by his conduct to criticise the forum appointed with his positive consent for the first time in the revisional Court. It is a salutary principle of law and it is rather obligatory over a litigant that he must be consistent in his assertion and to have a fair and impartial administration of justice a party cannot be allowed to play fast and loose and to blow hot and cold in the same breath to the disadvantage of his adversary. It will be appalling and damaging to allow a party to change his stand r at his sweet will and particularly when such a change in the position would result in harming his opponent. The respondent of his own had requested the Court to adopt the particular procedure for decision of the case, therefore, he cannot be allowed to turn round and criticise the procedure adopted at his behest. It has been laid down in the leading judgment on the subject, Ghulam Mohi-ud-Din v. Chief Settlement Commissioner reported in PLD 1964 SC 829.
"The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred op the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted the discretionary relief as he stood by and allowed the Tribunal to usurp 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'.
Therefore, in the facts and circumstances of the instant case, the decision' in Writ Petition No. 137 relied on by respondent No.4 was not relevant and the said respondent was not correct to hold on the basis of the said judgment that the B decision in this case was illegal and without jurisdiction as it was rendered by a forum not competent to do so. However, we have no reason to differ with the other grounds advanced in the impugned order for acceptance of revision. Initially the parties had agreed on three Ulemas for the decision but later the name of Maulana Bostan was cut and instead Maulvi Khairun Nass was inserted. There appears no statement of the parties to show that they had agreed to such a change but even if this change was with the consent of the parties even then the record does not indicate to the participation of MauM Khairun Nass in the proceedings.
Again the divided decision was referred to four other Ulemas including the same Maulana Bostan without obtaining the consent of the parties. The point of oath taken by the petitioncr has also been satisfactorily explained in the impugned order. The initial charge against Abdul Haleem for having accepted Rs.2,000 as bribe and subsequently changing the version that the amount was paid as loan was also rightly considered as a ground for discarding the verdict of the Ulemas and for reversal of the orders of respondents Nos. 2 and 3. We have not been pursuaded to come to a different conclusion on these points. This Court would not interfere in its writ jurisdiction with the decision of Tribunal or Court merely because a different view of the matter than the one adopted is possible otherwise no difference will be left in exercise of appellate jurisdiction and that of writ jurisdiction. It is now settled that an erroneous decision cannot be described as a decision without jurisdiction so as to justify f interference in the discretionary powers which are exercised in writ jurisdiction. In these circumstances, we are not inclined to interfere in the decision of respondent No. 4 and accordingly dismiss the writ petition but with no order as to costs.