WALI MUHAMMAD AND Another vs GHULAM RASOOL
This petition for leave to appeal calls in question a judgment of the High Court passed in second appeal arising out of a pre-emption suit. The petitioner-vendees resisted the suit on the grounds that the sale of evacuee property was not pre-emptible and that the court-fee was deficient. The trial court decided both issues against the petitioners, who subsequently abandoned the contention regarding evacuee property during their first appeal before the District Judge. When the petitioners sought to re-agitate both points in second appeal, the High Court disallowed the plea regarding the non-competency of the suit due to prior abandonment and ruled against them on the court-fee issue. The core legal question was whether a party can re-raise in second appeal an issue expressly abandoned before the lower appellate court. The Supreme Court held that the High Court acted within its powers in refusing to permit the petitioners to agitate an abandoned matter. The petition was accordingly dismissed, establishing that points abandoned in an intermediate appellate court cannot be revived in second appeal.
- Whether a party can re-agitate in second appeal an issue that was expressly abandoned before the lower appellate court?
- Is the sale of an evacuee property subject to pre-emption under the law?
- Whether the High Court has the power to refuse leave to raise a point abandoned in the intermediate appellate forum?
1. SAJJAD AHMAD, J.-This petition calls in question the judgment of a Division Bench of the High Court made in second appeal which arose out of a pre-emption suit. The petitioner --vendees resisted the respondent's pre-emption suit on the ground that the sale being of an evacuee property, was not pre-emptible and secondly that the court-fee had not been properly axed on the plaint. Both these issues were decided against the petitioners by the first Court. The petitioners filed an appeal to the District Judge wherein they had abandoned their contention about the sale being non-pre-emptible as it related to an evacuee property. In the second appeal in the High Court, both the points were re-agitated. The learned Judges disallowed the petitioners to rake up the question of the non-competency of the pre-emption suit on the ground that they had abandoned that issue in the lower appellate Court. The objection as regards insufficiency of court-fee was also decided against the petitioners.
2. The learned counsel for the petitioners has not touched the question of the court-fees before us but has argued that the suit was incompetent for the reason that it related to the pre-emption of an evacuee property.
3. The High Court has acted within its powers to refuse leave to the petitioners in agitating a matter which they had abandoned in the lower appellate Court and we feel that the petitioners cannot justifiably make any grievance out of it.
4. There is no merit in this petition which is dismissed.
Cited by 2 cases
- Mubarak Masih vs Muhammad Yaqoob & others 2019 CLC 321, 2018 SHC 667
- MANZOOR AHMAD vs GHULAM NABI 2001 CLC 1455