GHULAM MUHAMMAD Versus IMAM BAKHSH

1. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by the pre‑emptors' side against the acceptance of the Regular Second Appeal of the respondents‑vendees.

2. The trial Court had taken note of point of limitation without objection from the respondents' side in their written statement and had dismissed the suit of the petitioners as time‑barred.

3. The first Court of appeal reversed the trial Court's decision and decreed the petitioners' suit. The High Court allowed respondents' second appeal, and remanded the case to the trial Court for adjudication "afresh on all points".

4. The only point raised by the learned counsel before us is of limitation. Relying on Allah Yar Khan v. NIst. Sardar Bibi and others (1986 S C M R 1957) learned counsel has contended that the respondents not having taken any objection regarding limitation in their written statement, it was not open to the High 7ourt to examine this question. The judgment relied upon by the learned counsel no doubt prima facie supports him; but on proper reading thereof it has to be remarked that although it has been ruled in the cited judgment as also in some other recent judgments of this Court that the High' Court would not be obliged to examine the question of limitation vis‑a‑vis institution be ore a lower Court if not raised by the party concerned before the lower Court; it would, however, be open to it if, in the circumstances of a particular case, it is deemed proper to notice and examine the question of limitation. Such was the type of case reported in Muhammad Buta v. Habib Ahmad (P L D 1985 SC 153). In similar circumstances, the Supreme Court refused to interfere, when the High Court had examined the question of limitation.

5. In the light of what has been stated above, we find no force in this petition and the same is dismissed.

6. M.B.A/G‑114/S Petition dismissed.