HAMAD AND Another vs KHUSHI MUHAMMAD AND ANOTHER
This is a petition for special leave to appeal arising from an order of the Lahore High Court dismissing a review application in a pre-emption suit. The core legal questions involve whether the discovery of a pre-existing mortgage status constitutes new and important evidence for review under procedural law, whether a mortgagee-purchaser acquires ownership status at the relevant time to compete with a pre-emptor, and whether a new point of law can be raised for the first time before the Supreme Court. The Supreme Court held that the review application was misconceived as the petitioner must have known of his own mortgage and that a new legal plea not raised in the lower courts cannot be entertained at the apex stage. The Court established that time spent pursuing a misconceived review petition cannot be condoned for limitation purposes, and dismissed the petition on both merits and limitation grounds.
- Does the discovery of a pre-existing mortgage held by the vendee constitute new and important evidence for the purposes of review?
- Can a new point of law be raised for the first time before the Supreme Court of Pakistan?
- Can time spent pursuing a misconceived review petition in the High Court be excluded for the purpose of condonation of delay in filing a petition for special leave to appeal?
- Order XLVII Rule 1, Code of Civil Procedure 1908
1. HAMOODUR RAHMAN, C. J.-This is a petition for special leave to appeal from an order of a division Bench of the Lahore High Court dismissing an application for the review of a judgment passed by the same Court in second appeal.
2. This second appeal arose out of a suit for pre-emption. The suit was resisted inter alia on the ground of limitation. The Courts below the High Court rejected that plea and decreed the suit.
3. Before the High Court the plea of limitation was again pressed, but the High Court rejected it holding that the suit filed on 17-3-69 for the pre-emption of a sale evidenced by an attes--tation of mutation made on 31-3-68 was within time. The second appeal was, accordingly, dismissed in limine. An application was filed for the review of this order on the ground that the vendee--- defendant in the suit had since discovered that he had an equal right as compared with the pre- emptor, because, he was also a mortgagee of the land at the relevant time.
4. The discovery of such a fact could not be said to be a discovery of a new and important evidence which, after the exercise of due diligence, could not be within his knowledge or could not be produced by him at the time when the decree was passed within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure. Surely, the petitioner must have known of the mortgage if he was, in fact, a mortgagee. The High Court also took the view that even if such a mortgage did exist, the mere fact that the mortgagee subsequently became a purchaser would not make him an owner at the relevant time so as to enable him to compete successfully against a pre-emptor.
5. The petitioners now seek special leave to appeal. This petition is barred by 27 days if it is sought by this petition to challenge the order dismissing the second appeal in limine on the 1st of May 1970. It is, however, within time if it seeks to challenge only the order dismissing the review petition on the 22nd of June 1970.
6. Learned counsel appearing in support of this petition first contended that he would only press his petition so far as the dismissal of the review petition was concerned. But when it was pointed out to him that the review could not be possibly granted upon the ground it was sought he endeavoured to argue that since the pre-emptor belonged to a different caste, he could not, in any event, pre- empt a sale by a vendor belonging to another caste. This, however, is an entirely new point of law which was not raised in any of the Courts below nor has it been taken in the petition for special leave. The learned counsel very frankly conceded that this point struck him only last night when he was preparing this petition.
7. We are unable to allow the learned counsel to raise such point, even though it be of law, for the first time in this Court. It is true that this Court has sometimes permitted a question of law relating to the jurisdiction of the Court to be raised for the first time in this Court but this does not mean that any and every question of law can be raised for the first time in this ultimate Court.
8. In this view of the matter this petition must fail both on merits as well as on the ground of limitation.
9. The only ground made out for condonation of the delay is that the petitioner was pursuing his review petition in the High Court but since the review petition was itself wholly misconceived, the time spent in pursuing such a misconceived proceeding cannot be allowed to be deducted.
10. This petition is, accordingly, dismissed.