MAIJLVI ANWARUL HAQ, J.--This judgment shall decide Intra-Court Appeals Nos, 545 and 526 of 2001 as they proceed against the same judgment dated 6-6-2001 passed by a learned Single Judge in Chamber of this Court. whereby Writ Petition No, 5151 of 2001 was decided.
2. The respondent had been running a Booking Agency of the Pakistan Railways under an agreement dated 17-3-1971 (Annexure A). The said Agency was terminated vide order dated 16-3- 2001 (Annexure B to the writ petition). Feeling aggrieved the respondent filed Writ Petition No,5151 of 2001 in this Court. Vide judgment dated 6-6-2001 the learned Single Judge proceeded to hold that the Agency has been terminated without serving a notice in the manner agreed and as such the termination is void. The termination order was set aside and at the same time it was stated that the appellants would be at liberty to take action against the respondent in accordance with the terms and conditions of the agreement. Both the parties feel themselves aggrieved of the impugned judgment of the learned Single Judge.
3. Mr. Wan Masood Sheikh, learned counsel for the appellants relies upon a judgment in the case of Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport.
Karachi and others (1998 SCM R 2268) to contend that although the judgment finds mentioned in the impugned judgment and has in fact been relied upon. by the learned Single Judge while passing the same it is to the effect that a factual controversy pertaining to contractual obligations cannot be resolved in the .writ petition. Vehemently argues that it was duly pleaded by the appellants that a notice had in fact been served upon the respondent before terminating the contract.
4. Mian Nisar Ahmad, learned counsel for the respondent also relies upon the same 'judgment to urge that this matter fell within the domain of the Constitutional jurisdiction and the learned Single Judge has rightly interfered. Further refers to the cases of The Christian Educational Endowment Trust, Lahore v. The Deputy Commissioner, Lahore and others (1987 SCM R 1189) and The Majlis-i- Intizmaia, Jamia Masjid, Ghulam Muhammad Abad Colony, Lyallpur v. The Secretary to Government of West Pakistan, Communication and Works Department, Lahore (PLD 1975 SC 355) to urge that a licence in the nature granted to his client was a privilege and could not have been withdrawn without a notice to him. He further contends that the learned Single Judge has erred in failing to grant relief in terms prayed for by his client.
5. We have gone through the records of the writ petition. We find that vide order dated 29-3-1-2001 the appellants were directed to file report and parawise comments. We find that these comments were filed in Court on 28-4-2001. We also find that the legation of the respondent in the writ petition that the agreement has been terminated without a notice was denied and it was stated that a notice was issued to the Agent for termination because of his unsatisfactory performance.
However, it appears that the said position taken in the written comments was not brought to the notice of learned Single Judge, 'and consequently the judgment proceeds on the assumption that it stands admitted that a notice was not served. This would be apparent from a plain reading of the impugned judgment.
6. Now in view of the respective stances taken by the parties vis-a-vis the said, termination of the agreement. to our mind a pure factual controversy arose in the case and it could not have been decided without a deep factual inquiry, rather a trial. This exercise of course could not have been undertaken in these proceedings. There is no cavil with the proposition laid down in the judgment in the said case of Messrs Airport Support Services. However, the judgment itself cautions against undertaking an inquiry into the factual controversy and a pre-condition stands laid that the dispute does not entail evidentiary facts of a disputed nature. In the case of Secretary to the Government of the Punjab, Forest Department, Punjab. Lahore through Divisional Forest Officer v.
Ghulam Nabi and' 3 others (PLD 2001 SC 415) after recapitulating almost the, entire case law on the subject. their lordships observed at page 431 of the report, that the superior Courts should not involve themselves into investigations of disputed question of fact which necessitates taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate inquiry into complicated or disputed facts.
7. Now in the present case, leaving apart the question of breach of the terms of the agreement, the very question as to whether a notice was served or not requires evidence. We, therefore, do find that the writ petition was not competent.
8. There is yet another aspect of the case. As would be evident from the filing of an appeal against the impugned judgment by the respondent himself, he has not been able to get any substantive relief because of the said declaration granted by the learned Single Judge and to our mind, nothing is to be found wrong with the judgment on the said score. This is a matter of a contract which for all purposes is commercial in nature between the two parties. The appellants had alleged breach of contract and according to them after serving the notice they proceeded to cancel the contract. What is to be seen is as to whether the contract is capable of specific performance. The answer has to be in the negative. The only remedy available would be for damages as proof of ,breach of agreement. Thus from whatever angle seen, the impugned judgment cannot be sustained. Consequently, Intra-Court Appeal No,545 of 2001 is allowed while Intra-Court Appeal No,526 of 2001 is dismissed. The result is that the writ petition filed by the respondent shall stand dismissed. No order as to costs.