MUHARNMAD KHAN Versus YAQOOB ALI
1. MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought by the vendees' side in a pre‑emption matter against the acceptance of an F.A.0. by the High Court. The respondents) pre‑emptors's side had failed before the trial Court. Their appeal was dismissed by the Additional District Judge for non‑prosecution. Their application for restoration was also dismissed. The High Court reversed the order of the first appellate Court, set aside the refusal to restore the appeal and remanded the case for a fresh decision on merits.
2. The learned counsel states that in the meanwhile after the filing of this petition for leave to appeal in this Court, the respondents/ pre‑emptors' suit has been decreed and an appeal against that decree is pending. Nevertheless, he insisted that this Court should set aside the impugned judgment of the High Court whereby the respondents' first appeal stood restored so as to help the petitioners' side to achieve success without a contest.
3. Although the learned counsel tried to argue that the provisions contained in Order XVII, rule 5 C.P.C. require interpretation and an authoritative pronouncement by this Court. We after hearing him are of the view that the controversy raised before us is essentially one of fact ‑ whether sufficient cause was shown for the restoration of‑ an appeal or not. This by and large is within the field of the Courts below. The High Court's judgment in this behalf does not suffer from any infirmity, jurisdictional or otherwise. Moreover, the question now is only of academic nature, a decree having ultimately been passed against the petitioners, same is stated to be, under challenge in appeal. That being so, the principle of merger enunciated' by this Court in Khalique Ahmed v. Abdul Ghani P L D 1973 S CI 214 would at least indirectly be attracted to the petitioners' case. Looked at from whatever angle, this is not a fit case for the grant of leave to appeal. The petition is, therefore, dismissed.
4. M.I. /M‑485/5 Petition dismissed.