' KAMAL MANSUR ALAM, J.---The petitioner is seeking leave to appeal from the judgment dated 23- 2-1997 passed by the learned Division Bench of the High Court of Balochistan, dismissing petitioner's Constitutional Petition No,286 of 1994.
2. The petitioner claims to have been allotted by the respondent No,3 (The Administrator, Quetta Municipal Corporation) a plot of land bearing Khasra No,7228, measuring 13400 sq. Ft., situated at Shahra-e-Abdus Samad, adjacent to the cattle market, in respect of which a lease deed is said to have been executed on 3rd May, 1976 and possession thereof handed over to the petitioner on payment of the lease money. It is alleged that subsequently the local administration decided to shift the cattle market from the thickly populated area. The occupants of the plots in the cattle market resisted the move and filed a suit to stall the shifting of the market, which suit was dismissed. Their revision in the High Court too met with the same fate and their petition for leave to appeal in this Court also seems to have been dismissed. It is claimed that though the plot allotted to the petitioner was not situated within the cattle market, but the petitioner apprehending eviction from the said plot filed a suit seeking declaration to the effect that he was the lessee of the plot and permanent injunction restraining the respondent No,3 from dispossessing him. It is alleged that while the said suit was pending and the. Court's interim order restraining the respondent No,3 from dispossessing the petitioner from the plot was still operating, the police forcibly took over possession of the land on 22-11-1994 and removed all the material lying there. A criminal case was also registered against the petitioner and he and his employees were allegedly detained for a short period. The petitioner then filed the said constitution petition in the High Court challenging the action of the official respondents and seeking restoration of possession.
3. The learned counsel for the petitioner submits that the petitioner was a lawful lessee of the plot in question and was in possession thereof when he was forcibly and in violation of the terms of the lease evicted therefrom. In the circumstances, he submits that the suit could not be considered as adequate remedy, as such, according to him, this was a fit case where the High Court should have exercised jurisdiction under Article 199 of the Constitution and redressed the wrong done to the petitioner. He places reliance on the case of Ch. Abdul Hamid v. Deputy Commissioner and others (1985 SCM R 359). That was an election matter where it appears that as a result of the orders passed by the Election Authority and the Appellate Authority the candidate securing lesser number of votes was declared as successful. In these circumstances, this Court observed that- "Where the disqualification of the appellant was neither apparent nor notorious, the majority of voters of that constituency should not have been deprived of their votes nor a candidate enjoying the confidence of only a minority should have been allowed to represent the constituency."
' And further that- "It was a case where the jurisdiction should have been exercised to relieve the parties of the illegalities and infirmities appearing on the face of record, without, of course, deciding the factual controversy itself."
4. Reference was also made to the case of Mst. Kalsoom Malik and others v. Assistant Commissioner and others (1996 SCM R 710), where the Honourable Judges reiterated the dictum that "rule about invoking constitutional jurisdiction only after exhausting all other remedies, is rule of convenience and discretion by which Court regulates its proceedings and is not a rule of law".
5. It appears from the record that in the High Court a counter-affidavit was filed on behalf of official respondent No,3 controverting the claims of the petitioner. It was stated therein that in spite of ban on allotment of land in force at that time, the petitioner got the land in question allotted to himself.
It was further stated that the alleged lease deed relied upon by the petitioner was neither properly stamped nor registered and did not create any title in favour of the petitioner, that the land in question was situated within the area of cattle market which had to be shifted from the place, that possession of the land was never handed over to the petitioner and that the petitioner's attempt to take over possession of the land himself was thwarted by the cattle marketers.
6. Having regard to the disputed facts involved in the case, the learned Division Bench of the High Court dismissed petitioner's constitution petition by the impugned judgment, relevant portion whereof may be reproduced as follows- "12. We have given our anxious thought to arguments so advanced. There is no denying the fact that the petitioner has already invoked jurisdiction of Senior Civil Judge by filing civil suit in respect of the same cause of action and on same facts with almost similar prayer. In such circumstances proceedings before this Court by way of constitutional petition are not maintainable. The opening words of Article 199 of the Constitution make it crystal clear that an aggrieved person may file an application provided there is no alternate remedy by any law provided to him. In the instant case not only there is an alternate remedy but the same has already been availed by the petitioner who filed a civil suit and obtained stay order from the Senior Civil Judge. In our calculated view all questions relating to forcible dispossession etc. Being sub judice before the Senior Civil Judge present petition before this Court is not maintainable. The next objection raised by the counsel for the official respondents is also very pertinent when they canvassed that the petition involves controversial questions of fact which cannot be determined without detailed inquiry or by adducing evidence. As regards possession of the said plot the case of the petitioner is that after allotment of the plot he got the possession, whereas the official respondents by filing counter- affidavit categorically denied this fact by contending that the possession had never been delivered to petitioner. Thus, the question of forcible dispossession of the petitioner by the official respondents or by law enforcing agencies is still a question of fact which cannot be determined without recording evidence and conducting detailed inquiry. The petition is, therefore, not maintainable on this count too.
13. As far as the question whether the allotment of petitioner was a. Valid allotment or it was in exercise of colourable authority by the then Additional Secretary, is a question which shall be finally determined by the Senior Civil Judge before whom this question has already been agitated.
14. Under these circumstances and for the aforementioned reasons we are not inclined to exercise our discretionary powers in favour of the petitioner. The petition being not maintainable is dismissed. However, parties are left to bear their own costs."
7. It is apparent that in the present case at the time the constitution petition was filed in the High Court, the petitioner's suit was already pending and on his own admission an interim order had been issued by the Civil Court, as such, even if the petitioner had been forcibly dispossessed from the plot, as alleged, he could have conveniently approached the Civil Court for appropriate action.
In the counter-affidavit filed in the High Court, the official respondent No,3 specifically denied petitioner's claim of being in possession of the plot, as such, the relief of restoration of possession, claimed in the petition could not even otherwise be granted by the High Court without the determination of the factual controversy of petitioner's possession of the plot. The cases referred to by the learned counsel are of no help to him. The first case pertained to election matter involving a measure of urgency and there the illegalities appeared on the face of record. In the second case the parties had been litigating before various forums and functionaries for years and the controversy did not involve any such question of facts as could be resolved only on evidence. In the above circumstances, no ground for interference with the findings of the learned Judges of the High Court is made out. The petition is accordingly dismissed and leave is refused.