SYED JAMSHED ALI, J. - Order dated 17.4.1999 passed by the learned first Appellate Court whereby the respondents were allowed to withdraw the appeal with permission to file a fresh suit has been assailed.
2. The two respondents herein, tiled a suit for permanent Injunction claiming therein that they owned a three storeys house bearing No. 2/516 in Mohallah Muslimabad, Gujrat in which respondent No. 1 was running a school. It was further stated that the doors, windows and the ventilators in all the three storeys alongwith a 'balconi' opened towards the west even before the partition, through which they were enjoying the light and air. It was further averred that on the west, the petitioners owned plot No. 2/515 on which they wanted to raise construction in such a manner so as to close the opening of the respondents. It was also contended that plaintiffs-respondents had acquired easement rights by prescription. The uit was contested. The case of the petitioners/defendants has been that between the house of the petitioners and the respondents they had voluntarily left a 5 ft. Passage the title of which vested in the petitioners.
3. Necessary issues in the case were framed and the suit was tried. It was held that the plaintiffs- respondents failed to establish any right of easement in the property in dispute. Accordingly, the suit was dismissed on 8.12.1996.
4. Respondent No. 1 alone appealed against the said judgment, and decree. It came up for consideration before the learned first Appellate Court on 17.4.1999 in the presence of the counsel for the parties. The learned counsel for respondent No. I made a statement that during the pendency of the suit, the petitioners had raised construction and, therefore, a suit for declaration based on the rights of easement is intended to be filed. He prayed for the withdrawal of the appeal with permission to file fresh suit.
5. The learned counsel appearing for the petitioners objected to the grant of permission to file a fresh suit (as recorded in the impugned order). The learned first Appellate Court held that since the respondents wanted to file a declaratory suit whereas the present suit was for permanent injunction, therefore, respondent No. 1 was entitled to file a fresh suit on another cause of action.
Accordingly, respondent No. 1 was permitted to file a fresh suit on payment of Rs. 1000/- as cost.
6. The learned counsel for the petitioners submits that after the suit had been tried and dismissed on merits permission to file a fresh declaratory suit was wholly uncalled tor. He further submits that in the absence of a formal defect the learned first Appellate Court was not competent to allow permission to file a fresh suit. Reliance was placed on For the Petitioner: Ch. Mushtaq Ahmad Khan, ASC and Imtiaz Muhammad Khan, AOR.
For the Respondent: Malik Muhammad Nawaz, ASC and Ch. Akhtar A.I, AOR.
Date of hearing: 15th May, 2000.
JAVED IQBAL, J.--- This petition for leave to appeal is directed against the judgment dated 10.11.1999 passed by learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby ICA bearing No. 106 of 1999 has been dismissed and against the order of dismissal of the writ petition hearing No. 2028/99, dated 5.11.1999 and order of dismissal of review petition dated 16.11.1999.
2. Briefly stated the facts of the case are that respondent through Deputy Director invited applications for the determination of pre-qualification for construction of a Carriage-way of Islamabad Highway from Gumrah Bridge to G.T. Road Rewat and Faizabad to Kuri Chowk in pursuant to notice for pre-qualification. The petitioner also floated its application for the grant of said contract. After a thorough scrutiny for which respondent evolved a mechanism and engaged consultant and eight contractors were found qualified for the contract in dispute but the petitioner could not qualify and tiled a Constitutional Petition (W.P. No. 2028/99) which was dismissed by the learned Judge on 5.11.1999 which was assailed by means of ICA which met the same fate and was dismissed vide order dated 10.11.1999. Being aggrieved a review petition was filed but it was also dismissed vide order dated 16.11.1999.
3. It is mainly contended by Ch. Mushtaq Ahmad Khan, ASC that the process adopted by the CDA is dishonest, non-transparent and the person who had never participated tin. The contract in question has been chosen for doing the needful and contract is being awarded to him. It is argued with vehemence that the petitioner/firm obtained 72 marks out of 100 whereas pre-qualification was granted to M/s. Echo West International which secured 66 marks and is indicative of mala ,fides on the part of respondents. It is contended that petitioner was refused the pre-qualification on the ground that it had a joint venture with "Build More" which is not the correct appreciation of facts as the application was submitted by the petitioner on its own and 72 marks were obtained on the basis of sound financial position and experience. It is pointed out that the action of respondent is in violative of provisions as contained in Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, and the conduct of respondent is not only prejudicial but discriminatory. It is pointed out that the petitioner/firm had completed various projects assigned to it by CDA and there was no justification to disqualify it for the contract in question. It is argued that the legal and factual, aspects of the controversy were not appreciated properly by the Division Bench of the Lahore High Court which resulted in serious miscarriage of justice.
4. It is contended on behalf of CDA that no illegality or irregularity whatsoever has been done but on the contrary a transparent and fair methodology has been adopted by appointing consultant and the petitioner was not found fit for pre-qualification alongwith other fifteen firms hence the question of any discrimination does not arise. It is pointed out that the petitioner/firm obtained 72 numbers on the basis of information and documents produced by the firm but the said numbers were in consideration of their association with a foreign based company with the name and style of "Build More System" and as such it could not be said that the petitioner/firm secured 72 numbers at its own. It is argued that as a matter of policy it was decided that no work should be assigned to joint ventures in view of the past experience of CDA. It is pointed out that the petitioner/firm secured 52 numbers as a result of independent assessment. It is mentioned that previous performance of the petitioner/firm was not up to the mark and it failed to complete the smaller stretch of the road measuring 1-6 kilometer within the stipulated period of seven months which was not completed after lot of pursuance and pressure exerted by CDA.
5. We have carefully examined the respective contentions as agitated on behalf of petitioner and respondent in the light of available record. We have minutely perused the impugned judgments/orders passed by learned Division Bench of Lahore High Court, Rawalpindi Bench. Let we mention here at the outset that it would not be possible to decide the factual controversy and disputed facts such as whether the petitioner/firm has got the skill, technical know-how, modern equipments, capability and resources to accomplish the task in question and in our considered opinion CDA is in better position to determine such ticklish and technical questions. It is well-settled by now that "the superior Courts should not involve themselves into investigation of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. The Constitutional jurisdiction is intended primarily for providing an expeditious remedy in a case where the illegality of the impugned action of an execution or other authority can he established without any elaborate inquiry into complicated or disputed fact." (1971 SCM R 110 + 1970 SCM R 853 + PLD 1964 SC 636 + PLD 1983 SC 280 + PU 1983 SC 256).
6. In such view of the matter we cannot give the petitioner/firm certificate of fitness for pre- qualification as technical and expert opinion cannot be substituted. We have not been agreed to persuade ourselves with Ch. Mushtaq Ahmad Khan, ASC that it is a case of sheer discrimination for the reason that discrimination always involves an element of unfavourable bias which cannot he proved on the basis of bald assertion but requires solid and correct evidence which apparently is lacking. The award of contract falls within the discretionary domain of CDA and every exercise of discretion is not an act of discrimination. It becomes an act of discrimination only when it is improbable or capricious exercise or abuse of discretionary authority. It is worth mentioning that an attempt appears to have been made to carry out the exercise of pre-qualification in a transparent manner as the contract in question could have been assigned to various civil engineering firms with no limits which are already registered with CDA and further pre-qualification of contractors through an independent consultant is indicative of the transparency and fairness. It is worth mentioning at this juncture that according to CDA the past performance of petitioner/firm was not up to the mark and, therefore, CDA cannot he forced to declare the petitioner/firm tit for pre-qualification.
7. In the light of what has been stated above we are not inclined to grant leave and, accordingly, the petition being devoid of merit is dismissed.