' MIAN MUHAMMAD AJMAL, J.---Leave to appeal is sought against the judgment of the Peshawar High Court, Peshawar, dated 25-5-1999 whereby writ petition of the petitioner and respondents Nos.52 to 59 was dismissed in limine being unmaintainable.
2. Brief facts of the case are that Mst. Sheda respondent No.1, Mst. Khalida respondent No.2 and Mst.
Saleema respondent No.3 filed an application before Settlement Tehsildar, Mardan for partition of joint property comprised in Khata Nos.69/280 to 313 in the Jamabandi for the year 1979-80 situated in Mahal Ferozepur, Tehsil Takht Bai, District Mardan on 24-10-1988, which was contested by Qamash and 4 others and the rest were placed ex pane. The application was allowed by the Settlement Tehsildar, Mardan vide his order, dated 20-3-1993. This order was maintained in appeal by the Collector vide order, dated 7-8-1993, whereagainst revision petition was accepted by the Additional Commissioner, Mardan vide his order, dated 20-9-1993 and the case was remanded to decide the same on merits according to law. After remand, the Settlement Tehsildar vide his order, dated 20-12-1993 set aside the ex pane order and directed the respondents therein to file their written reply to the application for partition. Thereafter, three adjournments were given and on the fourth date i.e. 31-7-1994, those respondents who had not filed their replies were directed to submit the same on 7-8-1994. Mst. Sheda etc. Challenged this order through appeal before the Collector which was dismissed vide order, dated 14-12-1994. Their revision petition was also dismissed by the Additional Commissioner vide order, dated 28-2-1995 with the direction to the trial Court to proceed day to day and dispose of the case within one month positively. Their second revision was also dismissed by the Member, Board of Revenue, N.-W.F.P. Vide order, dated 24-5-1995. Their Writ Petition No.741 of 1995 was accepted by a Division Bench of the Peshawar High Court and the impugned order dated 31-7-1994 passed by the Settlement Tehsildar was set aside and the respondents who had submitted their replication on 7-8-1994 before the Settlement Tehsildar, were allowed to participate in the onward partition proceedings. Mst. Gulshan and 9 others respondents challenged this order through Petition for Leave to Appeal No.239 of 1997 which was dismissed on 4-6-1997. The application for partition was accepted on 21-8-1998 by Assistant Collector, Mardan.
This order was assailed by Sultan Muhammad and others by filing appeal before the Collector, Mardan which was dismissed on 14-9-1998. Their revisions before the Additional Commissioner and the Senior Member. Board of Revenue also met the same fate vide orders, dated 24-12-1998 and 144-1999, respectively. Their Writ Petition No.619 of 1999 before the Peshawar High Court was dismissed in limine on 25-5-1999 with the observation that after dismissal of their appeal before the Collector on 14-9-1998 they filed a Civil Suit No.251/1 before the Civil Judge, Takht Bai, which was dismissed on 21-11-1998 for want of jurisdiction and they instead of availing appropriate remedy by filing appeal against the order of Civil Judge, had approached the High Court through writ petition which is not maintainable in the circumstances. Hence this petition for leave to appeal.
3. Learned counsel for the petitioner referred to the order, dated 31-7-1994 whereby the respondents therein who had not filed their replies, were directed to submit written reply on 7-8- 1994 to the application for partition filed by the present respondents Nos.1 to 3 on 24-10-1988. It may be mentioned here that before 31-7-1994, they were given three adjournments for submission of reply. The order, dated 31-7-1994 was ultimately set aside by the learned High Court in Writ Petition No.741 of 1995 on 4-3-1997 with the observation that the respondents who had submitted their replication on 7-8-1994 before the Settlement Tehsildar, can participate in the onward partition proceedings. The order of the High Court, dated 4-3-1997 was maintained by this Court in Civil Petition 239-P of 1997 vide order, dated 4-6-199'7. Thereafter, the partition proceedings were concluded by the Settlement Tehsildar/Assistant Collector vide his order, dated 21-8-1998. Sultan Muhammad and others is another round of litigation assailed the mode of partition but they failed before the Revenue hierarchy up to the Senior Member, Board of Revenue, N.-W.F.P., whereafter they assailed final order of the S.M.B.R., dated 14-4-1999 through Writ Petition No.619 of 1999 which, too, was dismissed is limine by a learned Division Bench of the Peshawar High Court on the ground that after dismissal of their suit from the Civil Court, they had other adequate remedies available under the Code of Civil Procedure which were not exhausted, as such writ petition was held to be incompetent. Learned counsel contended that the petitioners had assailed the order-of S.M.B.R. In writ jurisdiction, therefore, the learned High Court has erred in dismissing the writ petition on the plea that after dismissal of the suit as they did not avail the remedy of appeal/revision as provided in the Code of Civil Procedure, writ petition was not maintainable. He further contended that the partition has not been properly ordered, therefore, it deserves to be set aside.
4. After hearing the learned counsel for the petitioner, we do not find any substance in his arguments and thus, are not inclined to grant leave. In this petition for leave to appeal, the order of the High Court passed in Writ Petition No.619 of 1999 has been assailed whereby the writ petition was held to be not maintainable and was dismissed in limine. Learned High Court has rightly observed that after dismissal of their civil suit, they had the remedies of appeal/revision under the Code of Civil Procedure, which were not availed, thus writ petition being not maintainable was dismissed. The plea that the procedure given in the C.P.C. Was lengthy, therefore, the petitioner deemed it proper to avail Constitutional remedy for early disposal of the matter, has no substance at all, for it is not at the choice and discretion of the party to invoke the Constitutional jurisdiction as an alternate remedy when adequate recourse under the law was available. Writ jurisdiction cannot be resorted to when grievance is rectifiable in appellate hierarchy. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 begins with the words "subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--(a) on the application of any aggrieved party, make an older---." The opening words of the Article make it clear that Constitutional jurisdiction of the High Court can only be invoked when no other adequate remedy is provided by law. In the instant case, the petitioners alongwith others had gone to the Civil Court challenging the order of the Collector, dated 21-8-1998, and after dismissal of their suit, he left it half way and instead of availing the right of appeal/revision as provided by the Code of Civil Procedure, the legal remedies available to the petitioner under the law, invoked the extraordinary jurisdiction of the High Court, which rendered his Constitutional petition incompetent and unmaintainable.
5. As far as second contention with regard to the partition of the property is concerned, we would refrain to dilate on it because it relates to the merits of the case, which is not before us as the learned High Court has not given finding on it and the writ petition was dismissed due to its non- maintainability.
6. This petition being devoid of any merit is dismissed and leave is refused.