ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

C.P.No.D-839 of 2015.

Date of hearing

Order with signature of Judge

For orders on office objection at flag ‘A’.

For Katcha Peshi.

25.01.2017.

Mr. Ashfaque Hussain Abro, Advocate for Petitioner.

----------------

The petitioner, a Government Contractor, through instant petition has sought the following relief(s):-

a) direct the respondents to make payment/clear the dues/arrears of the petitioner amounting to Rs.25,00,000/- without any further delay, as the said amount is undisputed and admitted by the respondents;

b) direct the respondents to produce the record viz. MB and budget detail of 2011.

c) Award costs of the petition to the petitioner.

d) Grant any other equitable and appropriate relief in view of the above stated facts and circumstances of the case.

In view of order passed by Division Bench of this Court reported as Habib-ur-Rehman Unar and others v. Government of Sindh through Secretary Irrigation and Power Department and others (PLD 2004 Karachi 728) the prayer clause ‘A’ cannot be granted by this Court in exercise of its constitutional jurisdiction. The relevant observations from the said judgment are as under:-

19. On the question of order of Mandamus, the basic authority is of the Hon’ble Supreme Court of Pakistan delivered by a Bench of 4 Hon’ble Judges in a case Mehrajuddin (supra). In this authority the Hon’ble Supreme Court has given the scope and object of the order of Mandamus in the following words:

“Its object usually is to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers when there is no other adequate and specific legal remedy and without which there would be a failure of justice. A mandamus could not confer a new authority and is neither a law nor a source of law”.

20. As to who can claim the order of Mandamus, it has been explained in the following words:--

“The person claiming a mandamus, in order to be entitled to receive it must at least have a clear legal right to the performance by the respondent of the particular duty sought to be enforced and a right founded purely on private contract, however, clear it might be, is not enforceable by mandamus.”

21. About the duties which are to be enforced through order of Mandamus it has been clarified in the following words:

“In the case of a public officer the duty must be one which is clearly defined, imposed or enjoined by law as a duty resulting from the office”.

39. The third and last point for consideration is that no other adequate and specific remedy is available and without which there would be a failure of justice. Adequate and specific remedy is provided by filing a suit for recovery of amount, specific performance of contract or damages. In the present Constitution petitions the petitioners have prayed for the recovery of amounts. By filing such petitions the petitioners have avoided to make the payment of Court Fees, which are usually to be paid for the suit of recovery of amount or damages. Reliance is placed on a case of Musaffaruddin v. Chief Settlement Commissioner (1968 SCMR 1136).

40. In the above case the High Court had dismissed the petition with a short order on the ground that the writ petition could not be invoked for the enforcement of a contract. Hon’ble Supreme Court of Pakistan observed:

“On hearing the learned Advocate for the petitioner we found ourselves in complete accord with the view adopted by the learned Judges in the High Court that the only appropriate remedy open to the petitioner was to file a civil suit for the specific performance of the contract if so advised”.

41. In case of Shamshad Ali v. Commissioner 1969 SCMR 122. It has been observed:

“We feel that the writ petition filed by the petitioner was misconceived. At the highest it was a case of breach of agreement for which the remedy did not lie in the writ jurisdiction of the High Court. The petition is dismissed.”

42. Thus all the points which are required to be proved for the issuance of order of Mandamus have not been proved to exist, as such, no order of Mandamus can be issued.

43. The main question in these petitions is whether the breach of contract or contractual obligations are enforceable through writ petition. On this point the law is clear and settled as a Bench of 5 Hon’ble Judges of Supreme Court of Pakistan in a case of Momin Motor Co. v. R.T.A. Dacca reported in PLD 1962 State Counsel 108 at page 112 has observed as under:

“learned counsel then attempted to argue that his client had contractual rights, because he had been made to spend a lot of money on making the road bus-worthy and the understanding was that no other permit-holder would be introduced in this route. The short answer to this contention is that contractual rights, if any, are not enforceable by recourse to writ jurisdiction”.

47. Analyzing the above legal position, we are of the considered view that it is a unanimous opinion of the Hon’ble Supreme Courts of Pakistan and India that a petition to enforce the contractual obligations does not lies, therefore, the petitions are not maintainable.

In view of above this petition is not maintainable, the same stand dismissed accordingly with no order as to cost.

J U D G E

S.Ashfaq