RUSTAM vs AURANGZEB and others
This matter arose from a petition for leave to appeal before the Supreme Court of Pakistan concerning a suit for pre-emption. The petitioner contended that he was a Shafi-Shureek (co-sharer) in the suit land, pointing to evidence (Exh.P.W.3/1) produced by the respondents themselves, which had been overlooked by all three lower courts. Relying on precedent and Section 20 of the N.-W.F.P. Pre-emption Act 1987, the petitioner argued that the court is competent to take notice of a co-ownership plea and decide the case on its merits even if such plea was not explicitly raised in the written statement. The Supreme Court found that the contention raised by the petitioner warranted consideration. Consequently, the Supreme Court granted leave to appeal and ordered the parties to maintain status quo pending the proceedings.
- Can the court take notice of a plea of being a co-sharer in suit land under Section 20 of the N.-W.F.P. Pre-emption Act 1987 if it was not raised in the written statement?
- Should leave to appeal be granted when lower courts overlook evidence establishing a party's status as Shafi-Shureek in a pre-emption suit?
- Section 20, N.-W.F.P. Pre-emption Act 1987
ORDER
' ANWAR ZAHEER JAMALI, J.---Learned Advocate Supreme Court for the petitioner, inter alia, contends that the petitioner was Shafte-Shureek in the suit land regarding which suit for pre- emption was instituted by the respondents and this fact is confirmed from a document Exh.P.W.3/1 produced in the evidence by the respondents as well, but this important legal aspect of the case has escaped the sight of all the three courts below. He refers to the judgment in the case of Faizullah Khan v. Hall Abdul Hakeem Khan (2011 SCM R 1802) and submits that in view of section 20 of the N.-W.F.P. Pre-emption Act 1987 even if the plea of being co-sharer in the suit land has not been taken by a party in the* written statement, this Court is competent to take notice of this fact and decide the case on merits in this regard. In the same context he has also placed reliance upon the earlier judgment of this Court in the case of Khan Gul Khan v. Daraz Khan (2010 SCM R 539).
2. Contention raised needs consideration. Leave , to appeal is, therefore, granted.
3. Notice of C.M.A. No,2888 of 2013 be issued to the respondents but in the meantime parties shall maintain status quo.
Cited by 2 cases
- Sakhi Jan and another vs Qamar Ali Khan 2022 PLJ SC 86
- SAKHI JAN Versus QAMAR ALI KHAN 2022 SCMR 422