PLJ 2000 Lahore 419

Present: CH. LJAZ AHMAD, J. KHALID SAEED-Petitioner

versus

Hqji GHULAM RASUL etc.-Respondents

Writ Petition No. 10585 of 1999, disposed of on 11.6.1999.

Constitution of Pakistan, 1973-

—-Art. 199 r/w. S, 145 of Cr.P.C.-Agreement to sell-Handing over of possession to petitioner-Decision of respondent to sell property to third party and request to petitioner to hand over possession to said party-­Refusal to and suit for specific performance-Grant of interim relief to petitioner-Respondent filed application to initiate proceedings against petitioner U/S. 145 Cr.P.C.-Writ against-Mere anticipation of penal action by respondent does not give rise to cause of action for invoking Constitutional jurisdiction-Petitioner has alternative remedy to agitate matter before Respondent No. 2, therefore, petition is not maintainable-Magistrate has only issued notice to parties-Evidence has not been recorded-Therefore, it is too early to say that proceedings are illegal-No irregularity has been pointed out-Petitioner has concealed material facts from Court-Petition disposed of being not maintainable. [P. 421] A & B

PLD 1996 SC 246 ref.

Syed Tayyab Mehmood Jafi, Advocate for Petitioner. Date of hearing: 11.6.1999.

order

Brief facts out of which the present writ petition arises are that the petitioner and Respondent No. 1 and his sons executed an agreement to sell of the land measuring 18 Kanals owned by Respondent No. 1 and his sons for consideration of Rs. 4,00,000/-. Earnest money amounting to Rs. 2,10,000/- was received by Respondent No. 1 and his sons from the petitioner. The balance amount has to pay by the petitioner to the Respondent No. 1 and his sons at the time of registration of sale-deed. Respondent No. 1 and his son handed over possession of land in question to the petitioner. Respondent No 1 and his sons subsequently changed their mind and decided to sell the land to a third party and requested the petitioner to hand over the possession of the land in question to them. Petitioner refused to hand over possession of the land to the Respondent No. 1 and his sons. Petitioner being constrained by the aforesaid circumstances filed a suit for Specific Performance in the Civil Court Pattoki. Civil Court passed the restrained order in favour of the petitioner on 4.6.1999 in the following terms:

"Defendants arc restrained from alienating the suit land in any manner."

Respondent No. 1 being aggrieved by the aforesaid action of the petitioner submitted an application before Respondents Nos. 2 and 3 to initiate proceedings against the petitioner U/S. 145 Cr.P.C. Respondents Nos. 2 and 3 visited the premises of the petitioner on 8.6.1999 at about 3.00 p.m and informed him that his factoiy is being sealed by the Respondent No. 2.

Learned counsel for the petitioner contended that petitioner informed the respondents that the factory is owned by the petitioner and therefore there is no apprehension of breach of peace and ingredients of Section 145 is not attracted. He further stated that petitioner also informed the respon­dents that the petitioner has obtained the restraining order in his favour qua the land in question from the Civil Court but the Respondents Nos. 2 and 3 insisted that he should receive the notice U/S. 145 Cr.P.C. and should be remained at the premises and Respondent No. 2 will again visit the factory on 12.6.1999. Hence the present writ petition with the following prayer:

"So keeping in view the above mentioned circumstances, it is very humbly prayed that the Respondent No. 2 may very kindly be directed, not to seal the factory of the petitioner situated at Jamler Khurad Tehsil Pattoki and proceedings already initiated against the petitioner may also be declared unlawful, uncalled for and without any legal justification."

Learned counsel for the petitioner stated that there is no apprehension for breach of peace and the ingredients of Section 145 Cr.P.C. is not attracted. Therefore, proceedings initiated by the respondents is without lawful authority. He further stated that it is the duty and obligation of the public functionaries to act in accordance with law. Dispute between the petitioner and Respondent No. 1 is of a civil nature. Competent Civil Court has already taken cognizance of the matter. Therefore Respondent No. 2 has no jurisdiction to initiate the proceedings against the petitioner U/S. 145 Cr.P.C. He relied upon PLD 1996 S.C. 541 (Qazi Grain's case).

2. I have given my anxious consideration to the contention of the learned counsel for the petitioner and perused the record myself. It is admitted fact that the petitioner did not append application filed by the Respondent No. 1 before Respondent No. 2 U/S. 145 Cr.P.C. with the writ petition. He also did not append the following documents with the writ petition:-

(i)    Order   of  the   Respondent   No.   2   on   the   application- of Respondent No. 1 and subsequent orders if any passed by him.

(ii)   Report of Respondent No. 3.

It is also admitted fact as alleged by the petitioner that Respondents Nos. 2 and 3 visited the factoiy of the petitioner on 8.6.1999 but the petitioner did not filed any objection petition before Respondent No. 2 that the application filed by Respondent No. 1 is not maintainable as the ingredients of Section 145 Cr.P.C. is not attracted as the matter is already subjudice before the Civil Court regarding the land in question. He also did not attach notice issued by Respondent No. 2 to the petitioner alongwith writ petition. The case cited by the learned counsel for the petitioner is distinguished on facts and law. The relevant observation is as follows:

"In this case, proceedings remained pending for a long time but there was no breach of peace."

It is pertinent to mention here in the aforesaid case, the magistrate sent the application to the SHO concerned for inquiry and report. The SHO submitted his report. The Magistrate directed the parties to file written statement with regard to their claim. Respondent filed written statement denying the correctness of the application U/S. 145 Cr.P.C. and controverted the allegations levelled in the application U/S. 145. The Magistrate did not dismiss the application and directed the parties to produce the evidence. Respondent being aggrieved filed a revision petition against the order of the Magistrate before the Sessions Judge who accepted the same. The applicant being aggrieved by the order of the learned Sessions Judge preferred petition U/S. 561-A Cr.P.C. in the High Court which was also dismissed. The complainant filed appeal before the Hon'ble Supreme Court which was also dismissed. Petitioner did not file written statement before the Magistrate with the prayer that the application U/S. 45 Cr.P.C. be dismissed. Petitioner filed this writ petition without adopting the aforesaid procedure on apprehension that Respondent No. 2 must have passed the order against the petitioner. It is settled proposition of law that mere anticipation of penal action by the respondent does not give rise to cause of action for invoking Constitutional jurisdiction. I am fortified by the judgment of the Hon'ble Supreme Court reported as 1968 SCMR 317(2). Petitioner has alternative remedy to agitate the matter before the Respondent No. 2 under the provisions of the Criminal Procedure Code or agitate the matter before the Sessions Judge. Therefore, writ petition is not maintainable as the principle laid down by the Hon'ble Supreme Court in Ismail's case PLD 1996 S.C. 246. It is also settled principle that Section 145 is self-contained and self explanatory and the Magistrate has to confine himself to the section only. I am of the view that at this stage the learned Magistrate has only issued notice to the parties and the petitioner has yet filed written statement before him. The evidence has not been recorded. Therefore it is too early to say that proceedings are illegal. No irregularity or illegality has been pointed out as the petitioner has not attached of the aforesaid documents with his writ petition. Meaning thereby petitioner has concealed the material facts from this Court. It is settled proposition of law that he who seeks equity must Come with clean hands. In view of what has been discussed above, the writ petition is not maintainable and the petitioner has alternative remedies as mentioned above to agitate the matter before the Respondent No. 2 or before the Sessions Judge, Therefore, the writ petition has no merit and the same is disposed of in the aforesaid terms.

(MYFK)                                                                       Petition disposed of.