FAZAL AHMAD Versus ZULFIQAR AHMAD

1. MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought by the vendees' side in a pre‑emption matter against the dismissal of their Regular Second Appeal by the High Court.

2. The question involved as stated by the learned counsel is whether the suit of the respondents/ pre‑emptors should have been dismissed on the ground of collusion and the same being 3enami. The facts relied upon by the learned counsel are that the respondent pre‑emptor is the‑ minor son of Allah Ditta vendor and he was at the time of sale and filing this suit living with the vendor. That being so, the fact that he had not filed a suit through his father and had filed it through his mother‑‑wife of the vendor will not make any difference. It goes in favour of the petitioners rather than in favour of the respondents. He has relied on Imam v. Saifur Rehman 19831 SCMR 244.

3. Prima facie, the argument advanced by the learned counsel appears to be attractive. We, therefore, heard him in some detail in elaboration of his argument.

4. Apart from other elements in the case though not noted by the High Court we feel that in the circumstances, the fact that the petitioners had not taken the plea of collusion/ Benami in their written' statement seriously affects the plea subsequently developed. The argument of the learned counsel is that the petitioners/ defendants in such a situation could rely on the admissions made by the mother of the pre‑emptor. That might be so, but in the circumstances of this case, the respondent minor was deprived of a proper opportunity of meeting the plea by the petitioners not taking the same in their written statement. Accordingly in the peculiar circumstances of this case, we refuse to grant leave to appeal.

5. M.B.A./F‑60/S Petition dismissed.