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DISPUTED FACTS IN WRIT

PLD 1984 K 269

Art. 199-Constitutional jurisdiction of High Court-High Court when can enter into facts
and arrive at finding in constitutional jurisdiction.

In every case, which comes before High Court by way of a constitutional petition, a
sort of factual dispute is always involved. It must also be stated straightaway that, if a
matter involves substantial questions of fact, which cannot be resolved, except by way
of a factual enquiry, or, proceedings, a writ would normally not issue. On the other
hand, it can be said without hesitation that the High Court in exercise of constitutional
powers can look into all the matters appearing from the record, and then arrive at its
own findings. The rule then is that the High Court will refrain from substituting its own
findings on facts for the findings that have been recorded by the inferior Tribunal. But
to say that, if there is a dispute on facts. The jurisdiction of High Court would be
completely barred, would be stating the law too broadly. Taking such a view may even
persuade a party to set 'up a sort of semblance of disputes on facts, and urge before
the Court that jurisdiction should not be exercised. This obviously could not be the
intention of the Constitution makers. On the other hand, when the High Court calls for
the record of judicial, or, quasi judicial authorities, or, tribunals, it has the full power to
do justice, although it will not ordinarily substitute its own decision for the decision of
the inferior tribunal.

The Court may, in appropriate circumstances, remit the case to the Tribunal
concerned for deciding the question left undecided, or it may itself proceed to
determine the matter if the relevant material is already present in the record and such
determination does not entail an enquiry into, disputed questions of fact.

That there was no bar to the High Court taking evidence or, even additional
evidence at the writ stage in order to consider, whether the impugned order is based
upon relevant evidence, or. when the additional evidence is not of a complicated
nature.

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Art. 199--Writ of mandamus-Mere fact of remedy by way of suit being available, held,
could not be considered to be a complete bar to grant of constitutional remedies-
Exceptions.

It would also seem that in cases, when an order in the nature of mandmaus is
sought, the Court would also have . to see, whether the alternate remedy available is
equally efficacious, inexpensive, speedy and complete. It would be wrong to state that,
if a suit could be filed on the same cause of action, a petition on the constitutional side
shall not lie. If that were so, then in most cases declaratory relief, or a relief for specific
performance would come to be equated with orders normally passed by the High
Court in exercise of constitutional jurisdiction, and it would not be wrong to say that,
by laying down such principle, virtually the High Court would be robbed of its
jurisdiction. No doubt, the High Court would be slow to grant a writ of mandamus, if
an equally efficacious and speedy remedy is available in the ordinary jurisdiction, but
the mere tact of remedy by way of a suit being available has never been considered to
be a complete bar to the grant of constitutional remedies. The matter has to be
considered from the angle, whether the demand is one for mere recovery of money,
or performance of contract, as distinct from the petitioner seeking performance of
public duty.

PLD 1978 K 417

Art. 199-Writ jurisdiction-Disputed questions of fact-Adjudication of-Rule that


adjudication of disputed questions of fact normally falls outside scope of constitutional
jurisdiction-Not of universal application-Questions raised capable of being decided
with reference to documentary evidence on record, or absence of documents required
to be prepared by mandate of law-Held: No question of investigating a complicated
and disputed question of fact involved in such situation and High Court could go into
questions in exercise of its constitutional jurisdiction.-[Writ-Question of fact].

A. H. Minhas r. Ghulam Ahmad 1974 S C M R 394.

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PLD 2010 SC 1066

Constitutional jurisdiction of High Court---Declaration to character of candidate---


Scope---Factual controversy---Educational credential---Genuineness, determination of-
--Nomination papers of respondent were accepted by Returning Officer and after
election he was declared as returned candidate---Petitioner assailed candidature of
respondent before High Court in exercise of Constitutional jurisdiction---Validity--- --
High Court in such cases was not bound to issue writ, especially when there was no
material on record to eminently and conclusively establish inherent lack of candidate's
qualification so that he could be hit by Art.62(f) of the Constitution

(2011) PLC (CS) 596 (SC)

Constitutional petition--- Maintainability--- Factual controversy---Scope---Plea raised


by respondent was that High Court could not undertake a factual inquiry---Validity---
High Court was not recording any new evidence but was proceeding on the basis of
admitted facts and if having examined the admitted facts, it had come to the
conclusion that authority had passed the order in colourable exercise of powers
conferred on it, or an authority having power to promote or appoint to a particular
post had done so against the law or without jurisdiction or while doing so as for mala
fide reasons had not taken into consideration the relevant record, High Court could
come in aid of person aggrieved to redress the wrong

P L D 2017 Islamabad 29

Constitutional petition---Scope---Disputed question of facts---Recording of evidence---


Principle---Respondent in a Constitutional petition cannot expect to have petition
dismissed by making vague and general assertion to the effect that petitioner involves
disputed questions of fact--- For a respondent to succeed on such score, he must
identify disputed questions which cannot be resolved without recording of evidence.

Saad Muhammad Shaheen Ali-Soofi v. Principal and Chairman Academic


Council, Sindh Medical College 1982 CLC 805 and Shamim Khan v. Pakistan Defence
Officers Housing Authority 1999 YLR 410 rel.

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2015 S C M R 595

Art. 199---Constitutional jurisdiction of the High Court---Scope---Questions of disputed


fact---Generally the High Court in the exercise of its constitutional jurisdiction did not
decide questions of disputed facts, but this did not mean that decisions which were
manifestly arbitrary, based on no evidence, or contrary to the record and not justified
by law would be upheld

P L D 2011 Supreme Court 44

Art. 199---Constitutional jurisdiction of High Court---Investigations of disputed


question of fact which necessitate taking of evidence---Scope.

The superior Courts should not involve themselves into investigations of disputed
question of fact which necessitate 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 enquiry into complicated or disputed facts.
Controverted questions of fact, adjudication on which is possible only after obtaining
all types of evidence in power and possession of parties can be determined only by
courts having plenary jurisdiction in matter and on such ground constitutional petition
was incompetent.

2011 S C M R 1813
Art. 199---Constitutional petition---Adequate or alternate remedy, determination
of---Test and guidelines for High Court.
The words "adequate remedy" connotes an efficacious, convenient,
beneficial, effective and speedy remedy. It should be equally inexpensive and
expeditious. To effectively bar the jurisdiction of the High Court under Article 199
of the Constitution the remedy available under the law must be able to accomplish
the same purpose which is sought to be achieved trough a petition under Article

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199. The other remedy in order to be adequate must be equally convenient,
beneficial and effective. The relief afforded by the ordinary law must not be less
efficacious, more expensive and cumbersome to achieve as compared to that
provided under the Article. This depends on the circumstances of each case.
High Court will have to consider in each case the following test to be applied
to determine the adequacy of the relief:--
(i) If the relief available through the alternative remedy in its nature or extent
is not what is necessary to give the requisite relief, the alternate remedy is
not an "other adequate remedy" within the meaning of Article 199.
(ii) If the relief available through the alternate remedy, in its nature and extent,
is what is necessary to give the requisite relief, the "adequacy" of the
alternate remedy must further be judged with reference to a comparison of
the speed, expense or convenience of obtaining that relief through the
alternate remedy with the speed, expense or convenience of obtaining it
under Article 199. But in making this comparison, those factors must not be
taken into account which would themselves alter if the remedy under
Article 199 were used as a substitute for the other remedy.
(iii) In practice the following steps may be taken:
(a) Formulate the grievance in the given case as a generalized category;
(b) Formulate the relief that is necessary to redress that category of grievance;
(c) See if the law has prescribed any remedy that can redress that category of
grievance in that way and to the required extent;
(d) If such a remedy is prescribed, the law contemplates that resort must be
have to that remedy;

(e) If it appears that the machinery established for the purpose of that remedy
is not functioning properly, the correct step to take will be a step that is
calculated to ensure, as far as lies in the power of the court that that
machinery begins to function as it should. It would not be correct to take
over the function of that machinery. If the function of another organ is
taken over, that other organ will atrophy and the organ that takes over will
break down under the strain;

(f) If there is no other remedy that can redress that category of grievance in

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that way and to the required extent or if there is such a remedy but
conditions are attached to it which for a particular category of cases would
neutralize or defeat it so as to deprive it of its substance, the court should
give the requisite relief under Article. 199.

(g) If there is such other remedy, but there is something so special in the
circumstances of a given case that the other remedy which generally
adequate, to the relief required for that category of grievance is not
adequate to the relief that is essential in the very special category to which
that belongs, the court should give the required relief under Article 199.

(h) If the procedure for obtaining the relief by some other proceedings is too
cumbersome or the relief cannot be obtained without delay and expense or
the delay would make the grant of the relief meaningless, High Court would
not hesitate to issue a writ if the party applying for it is found entitled to it,
simply because the party could have chosen another course to obtain the
relief which is due.

Art. 199---Constitutional jurisdiction of High Court---Scope---High Court could not


investigate disputed questions of fact---Principles.

Disputed questions of facts cannot be investigated while exercising


constitutional jurisdiction.

It is incumbent upon party seeking constitutional remedy to show that such


party had a clear legal right and that such right is so clear as not to admit of a
reasonable doubt or controversy. High Court will not go into disputed questions of
fact in constitutional jurisdiction. This is more so when it is supported by attending
circumstances and relevant record. Constitutional jurisdiction of High Court cannot
converted into that of an Appellate Court. Disputed questions of fact cannot be
entertained or allowed to be re-agitated in writ jurisdiction, when the relevant law
provides other forums for the purpose. It follows that finding of fact recorded by
Appellate Court below on appraisal of evidence cannot be disturbed in writ
jurisdiction. In constitutional jurisdiction, court does not go into a question
involving minute details nor can it decide facts of which no foundation is

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laid, unless it is shown that such controversy is devoid of supporting record or
perverse.

The superior courts should not involve themselves into investigations of


disputed questions of fact, which necessitate 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 enquiry into complicated or
disputed facts. Controverted questions of fact, adjudication on which is possible
only after obtaining all types of evidence in power and possession of parties can be
determined only by courts having plenary jurisdiction in matter and on such ground
constitutional petition is incompetent

PLD 1986 Q 214

Art. 199-Constitutional jurisdiction--High Court, in its constitutional jurisdiction can


probe into a question of fact if same does not require a detailed inquiry and dictates of
justice demand doing so.

Generally the High Court in exercise of constitutional writ jurisdiction does not probe
into the co complicated disputed questions of fact, and for resolving the same, the
proper forum is a civil Court or any other legal forum provided by any other special
law, but at the same time, there is no law prohibiting the High Court from probing into
a question of fact in a writ petition if the same does not require a detailed inquiry and
the dictates of justice demand doing so.

1974 S C M R 196

Art. 199-High Court exercising writ jurisdiction-Additional evidence-Investigation into


complicated questions of fact-Normally should be left to be done by authorities
concerned-No bar, however, to High Court taking evidence or even additional evidence

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at writ stage when such evidence is taken to consider whether impugned order of
authority below based on relevant evidence.

P L D 1973 Supreme Court 24

The term 'law' is not confined to `statute' and in holding the inquiry the superior
Courts are not restricted to an examination of record of the case. The Court may even
record evidence to determine the legality of the act done or the proceedings
undertaken.