Islamabad:
The Supreme Court said that a high court, while exercising its competence under article 199 of the Constitution, cannot entertain questions requiring a factual investigation.
“It is the prerogative and privilege of the court of first instance to examine such controversies in order to be eliminated on the merit after having taken into account the evidence led by the parties,” said a five -page verdict written by judge Shakeel Ahmad.
Justice Ahmed was part of a three -member bench – led by Pakistan Judge (CJP) Yahya Afridi – who heard pleas against a Balutchistan High Court order (BHC) with regard to the partial payment of the security amount paid by an entrepreneur who built the BHC building in 1986.
The Balutchistan Government Department on Construction and Work (C&W) had put the black list to the entrepreneur in July 1991 due to unsatisfactory performance and lost its safety.
The entrepreneur filed a complaint with a court of first instance which rendered a judgment and a decree on May 4, 2006. However, due to a failure on the part of the C&W department to submit the amount of security to him, he filed a request from the Court of execution for the implementation of the judgment of the court of first instance.
The execution court rejected the execution request on May 20, 2009, declaring that there is no mention of the release of the amount of security in favor of the entrepreneur in the order of the court of first instance.
The entrepreneur filed a various civil appeal to the BHC, which converted the appeal into a request in constitution and issued an opinion to the C&W department, ordering him to submit details of the amount which allegedly paid to the entrepreneur.
After doing a factual investigation in this regard, the Court of September 7, 2017 partly allowed the request, ordering the C&W service to pay 20.12,668 of RS at that time – the legal heirs of the entrepreneur – who died by then – out of security within thirty days.
The legal heirs of the entrepreneur were of the opinion that they were entitled to the total amount of security – RS68,67,668. Consequently, they filed a civil request to the Supreme Court. The C&W department was also unhappy with the judgment of the BHC and also filed a civil petition.
The SC in its verdict noted that the clause stated in the complaint reflected that the petitioner had made no prayer for the release of the amount of security. The C&W department has also opposed BHC order for the release of the security amount, indicating that it had already published security to the entrepreneur.
He noted that the High Court decided to have the case examined by summoning official documents and putting a full investigation in the presence of the parties. He said this exercise could not have been done in the court in short.
“The scope and framework of the procedure before the High Court, in the present case, were limited to the extent of the judgment and the decree of the court of first instance and the order dated May 20, 2009, adopted by the execution court, rejecting the request for execution on the ground that the request for the recovery of the security amount mentioned during the request for execution was not decreed in favor of the contractor.
“The High Court did not attend any of the prayers indicated above and to the judgment and the decree adopted by the court of first instance, and the order of the execution court, and decided the case after having made a detailed investigation.
“Thus, in our opinion, the High Court exceeded in its authority by carrying the contested judgment, calling for interference. In our opinion, the factual controversy raised by the parties can only be resolved after having recorded pro proofs and contrasting by a civil prosecution,” he added.
“”[Therefore] The BHC judgment is canceled. The civil petition filed by the legal heirs of the entrepreneur, requesting the release of the remaining security amount, is rejected and the refused leave.
“”[The petitioners may] Ask for a repair of the appropriate forum, if, if necessary, subject to all the right and legal objections on the other side. No costs on costs, “said the order.
