ASHIQ HUSSAIN Versus MUHAMMAD NAWAZ KHAN

ORDER

1. MUHAMMAD AFZAL ZULLAH, J.‑‑ This is a pre‑emptor's petition for leave to appeal against the judgment of the High Court whereby his writ petition was dismissed. The petitioner had filed a suit for pre‑emption on ground of tenancy. Two points now involved are: (i) whether the petitioner could have been non‑suited on the ground of deficiency in court‑fee; and (ii) whether the petitioner has failed to establish the ground/claim of tenancy.

2. The first point has to be decided in favour of the petitioner on account of the judgment of this Court in the case of Siddique Khan P L D 1984 S C 289. On the second point, there is a finding of fact against the petitioner. However, the learned counsel for the petitioner has strenuously argued that the Courts below have committed an error in rendering that finding against the petitioner. The precise 1 argument is that the previous statement of the petitioner which has been used against him was not put to him in cross‑examination and that being so no opportunity was available to him so as to neutralize the effect of that statement.

3. In the questioned statement, the petitioner had admitted that he amongst others, was the owner of the suit land and no question of payment of rent would arise (and thus it ,vas admitted that he was not a tenant).

4. It is a hypertechnical argument. The statement was placed on record. It was the duty of the petitioner also to explain it as the same was in fact total negation of his claim for pre‑emption on the ground of tenancy.

5. Be that as it may, we asked the learned counsel as to what would have been possible explanation of the petitioner if the questioned statement would have been put to him. He remained unable to put forward any cogent explanation except that the plaintiff could have denied having made it. Such a position will be inconsistent with the very contents of the statement the reading of which shows that it was made by the petitioner.

6. In the light of the foregoing discussion we do not find it a fit, case for the grant of leave to appeal. The petition is, therefore, dismissed.

7. M.I./A‑252/S Petition dismissed.