NASIRA vs CHULAM HUSSAIN AND Other
The respondents filed a pre-emption suit against the petitioner claiming preferential rights as co-sharers and estate owners, which was dismissed by the trial court both on merits and on the ground that evacuee property was not pre-emptiable. The District Judge accepted the respondents' preferential claim but upheld the dismissal on the non-maintainability of pre-emption against evacuee property. In second appeal, the Lahore High Court allowed the respondents' claim relying on precedent. The petitioner sought special leave to appeal before the Supreme Court, contending that the appellate court should have remanded the matter for fresh trial rather than deciding on merits once it found the suit not maintainable. The Supreme Court held that since both parties had led evidence on all issues and the petitioner had not filed cross-objections regarding the findings on preferential claims, the petition lacked merit. The Supreme Court dismissed the petition in limine, affirming that a remand was unnecessary under such circumstances.
- Whether a pre-emption suit is competent in respect of evacuee property?
- Should an appellate court remand a suit for fresh trial when the lower appellate court dismissed it on a preliminary legal point after parties had already led evidence on all issues?
- Does the failure to file cross-objections regarding adverse findings preclude a party from challenging those findings on further appeal?
ORDER
1. ABDUL KADIR SHAIKHJ-The respondents filed a pre-emption suit against the petitioner basing the claim on their being co-sharers in the suit land as well as owners in the estate. The trial Judge dismissed the suit for the reason3 that the plaintiffs had not only failed to prove the preferential right claimed by them and the property being an evacuee property was not pre---emptiable. On appeal, the District Judge, Mianwali accepted respondents' claim of preferential right but upheld the view that the property was not pre-emptiable, and therefore, dismissed the appeal. In second appeal before Lahore High Court, the respondents, however, succeeded in view of the decision of this Court in Sultan Mahmood v. Muhammad Siddiq (PLD 1973 SC 347), that that pre-emption suit in respect of evacuee property is competent.
2. The petitioner now seeks special leave to appeal, from the judgment of the High Court and Mr. S. M.
3. Zaidi, learned counsel appearing for him submits that on the view that prevailed with the learned District Judge that the pre-emption suit was not maintainable, be should not have given decision on the merits of the case. In other words, the suit should have been at best remanded by the High Court for fresh trial on the remaining issues framed in the suit.
4. We are not impressed with this submission, for, both the parties proceeded with the trial and led evidence on all the issues framed in the suit, and no cross-objections were filed by the petitioner in the High Court as regards the findings of the District Judge in respondent's favour on the issue regarding their preferential claim.
5. This petition has no merit and it is accordingly dismissed in limine.