DILAWAR Versus GHULAM MUSTAFA
This petition for leave to appeal arises from a pre-emption suit where the trial court's decree was initially reversed by the Additional District Judge on the ground that the suit was time-barred due to a deficiency in court-fee paid after the prescribed limitation period. The High Court subsequently set aside the appellate judgment and restored the trial court's decree. The petitioners, who were the vendees, challenged this decision before the Supreme Court on two grounds: the incorrect application of the principle of sinker regarding the pre-emptor's superior right, and the issue of limitation concerning the court-fee. The Supreme Court dismissed the petition, holding that the petitioners failed to challenge the finding on the principle of sinker in the lower appellate court or the High Court, and thus could not raise it at the leave-to-appeal stage. Regarding limitation, the Court affirmed the High Court's decision, relying on established precedent that the suit was within time despite the delayed court-fee payment.
- Can a party raise a legal ground in the Supreme Court that was not challenged in the lower appellate court or the High Court?
- Does the payment of court-fee after the expiry of the limitation period for filing a suit render the suit time-barred?
ORDER
SAAD SAOOD JAN, J This petition arises out of a pre‑emption suit. The suit was decreed by the trial Court but on appeal it was dismissed by the Additional District Judge who held that as the deficiency in the court‑fee had been made after the expiry of the period prescribed for filing the suit, it was barred by time. In second appeal, .the High Court set aside the judgment of the Additional District Judge and restored that of the trial Court: The petitioners who are the vendees seek leave to appeal from the judgment of 'the High Court..
2. In this petition two grounds have been taken. Firstly, it is urged that the trial Court erred in applying the principle of sinker while holding that the pre‑emptor had a superior right in relation to the petitioners. Secondly, it is contended that the High Court was not right in holding that the suit of the pre‑emptor was within time. As regards the first ground, it may be mentioned that the petitioners did not challenge the finding of the trial Court on the question of sinker before the Additional District Judge or even before the High Court. In the circumstances, we are not prepared to let them resurrect this controversy at this stage. So far as the question of limitation is concerned, the decision of the High Court finds support from a judgment of this Court reported as Siddique Khan v. Abdul Shakoor Khan P L D 1984 S C 289: This petition is thus without any merit and is hereby dismissed.
S.Q. /D‑18/S Petition dismissed: