JALALUDDIN AKBARJI,J.---Haji Ali Shah and one other, petitioners herein, have filed this Constitutional petition (W.P. No,84 of 1995) praying for declaration that the suit for ownership and entitlement of compensation amount in respect of land acquired and the injunction as to the non- interference by the petitioners in the alleged rights of respondents 1 to 10 and payment of compensation to them being incompetent and time-barred, has been illegally entertained by the learned Judge of the Civil Court at Peshawar and the order of deposit of the compensation amount in the Habib Bank till the decision of the suit is illegal, without jurisdiction, mala fide, invalid proceedings, unjust and arbitrary and are without lawful authority and of no legal effect. It is also prayed that a direction be issued to respondent No,14 i,e, the Senior Civil Judge, Peshawar to release the amount to the petitioners without any further delay and to decide first the competency of the, proceedings in the suit and to proceed in accordance with law, if it is found that the suit is competent. It is asserted in the petition that a sum of Rs,33,47,850 has been fixed as market value of the acquired land in an Award. The respondents Nos.1 to 10 filed a suit claiming possession and ownership of the acquired land comprising Khasra Nos.1516, 1518, 1515, 1526, 1520, 161, 1634-min, Khata No,6 and also challenged the genuineness of mutation No,1017 attested on 12-2-1964 in favour of the petitioners with consequential relief of permanent injunction against the petitioner, and payment of compensation to the respondents Nos.1 to 10. The trial Court while proceeding in the suit and also the appellate Court hearing appeal passed regulatory orders in respect of deposit of the amount of compensation in the Habib Bank. The petitioners in substance have urged in this petition that the trial Court and as well the appellate Court could not plass such regulatory order in respect of deposit of compensation in the bank and the petitioners are entitled to receive the same in accordance with the Award and the Revenue Record at the time of the announcement of the award.
2. Mr. N.M. Khan, learned counsel for the petitioners vehemently argued that this Constitutional petition is competent in spite of the pending suit and also vehemently argued that the civil Courts have no jurisdiction to pass the said regulatory orders in, respect of amount of compensation as the same has not been provided by any law or procedure. The petitioners are deprived of their valuable rights and its enjoyment in terms of sue of huge amount of compensation announced in the award to which thi are lawfully entitled. In respect of competency of this Constitutional petition the judgment in the case of 'Manager Jammu and Kashmier, State Property in Pakistan v. Khuda Yar and another (PLD 1979 SC 678), Salahuddin v. Frontier Sugar Mills Takhtbhai (PLD 1975 SC 244)" were referred beside many other judgments. Mr. Amjad Zia, advocate for respondents Nos.1 to 10 submitted that the trial in the suit has concluded and the case is now ripe for judgment and decree. It was also submitted that the order of the learned Judge of the appellate Court has been passed with the counsel of the petitioners and the respondents 1 to 10 Mr. Subhan-un-Din Khattack, Advocate, for respondents 11 to 13 i,e, Urban Development Authority, Peshawar, submitted that payment of compensation can be decided by the Commissioner in appeal and there is no need of the civil suit or of this Constitutional petition.
3.There is no need of deciding the merits of the suit in which the trial has now almost concluded and it is now ripe for judgment and decree. This Constitutional petition is not competent as a civil Court of competent jurisdiction is seized of the matter which will give decision on all the legal and factual aspects of the case. The judgments referred to by the learned counsel for the petitioners are not in context of this case. Any observation on our part on the competency of the suit or on any fact may cause prejudice either to the petitioners or to the respondents Nos.1 to 10. The remedy of filing an apeal before the Commissioner as suggested by the learned counsel will also not be an adequate remedy because the Commissioner cannot decide the question of title. This petition is, therefore, dismissed. It is observed that court-fee and value of the suit be fixed in accordance with the Court Fee Act and Suit Valuation Act on the market value/compensation amount which is claimed in substance by both the parties.