HCs can't entertain factual inquiry: SC
"It is the prerogative and privilege of the trial court to examine such controversies so as to be disposed of on merit after taking into consideration the evidence led by the parties," said a five-page verdict authored by Justice Shakeel Ahmad.
Justice Ahmed was part of a three-member bench — led by Chief Justice of Pakistan (CJP) Yahya Afridi — which heard pleas filed against an order of the Balochistan High Court (BHC) with regard to partial payment of the security amount paid by a contractor who built the BHC building in 1986.
The Government of Balochistan's Construction and Works (C&W) Department had blacklisted the contractor in July 1991 on account of unsatisfactory performance and forfeited his security.
The contractor filed a suit in a trial court which issued a judgment and a decree on May 4, 2006. However, due to failure on the part of the C & W department to release the security amount to him, he filed an application before the executing court for implementation of judgment of the trial court.
The executing court dismissed the execution application on May 20, 2009, declaring that there is no mention of release of the security amount in favour of the contractor in the trial court order.
The contractor filed a civil miscellaneous appeal to the BHC, which converted the appeal into a constitution petition and issued notice to the C&W department, directing it to submit details of the amount allegedly paid to the contractor.
After making factual inquiry in this regard, the court on September 7, 2017 partly allowed the petition, directing the C&W Department to pay Rs20,12,668 to the legal heirs of the contractor — who had died by then — out of security amount within a period of thirty days.
The legal heirs of the contractor were of the view that they were entitled to the total security amount — Rs68,67,668. Hence, they filed a civil petition in the Supreme Court. The C&W department was also unhappy with the BHC judgment and also filed a civil petition.
The SC in its verdict noted that clause set out in the plaint reflected that the petitioner had not made any prayer for release of security amount. The C&W department also objected to the BHC order for release of the security amount, stating that it had already released the security to the contractor.
It noted that the high court decided to get the matter examined by summoning official records and carrying out a full-fledged inquiry in presence of the parties. It said this exercise could not have been done in writ jurisdiction.
"The scope and ambit of the proceedings before the high court, in the instant case, was limited to the extent of judgment and decree of the trial court and the order dated May 20, 2009, passed by the executing court, dismissing the execution application on the ground that the claim for recovery of the security amount mentioned in execution application was not decreed in favour of the contractor.
"The high court has not attended to any of the above stated prayers and the judgment and decree passed by the trial court, and order of the executing court, and proceeded to decide the case after making a detailed inquiry.
"Thus, in our view, the high court exceeded in its authority by passing the impugned judgment, calling for interference. In our view, the factual controversy raised by the parties can only be resolved after recording pro and contra evidence through a civil suit," it added.
"[Therefore] the BHC judgment is set aside. The civil petition filed by the legal heirs of the contractor, seeking release of remaining security amount is dismissed and leave refused.
"[The petitioners may] seek relief from the appropriate forum, if so advised, subject to all just and legal objections from the other side. No order as to costs," the order said.
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