FAQIR HUSSAIN vs SHAH NAWAZ
This appeal arises out of a pre-emption suit concerning a haveli in Pindigheb, District Attock. The appellant filed a suit for possession through pre-emption based on contiguity. The trial court dismissed the suit, while noting that the vendee's claim for incidental expenses of Rs. 290 was not pressed and was decided in the negative. Upon appeal, the Additional District Judge allowed the pre-emption suit, directing the pre-emptor to deposit the sale price by a specific date, alongside the disputed incidental amount. The appellant deposited the principal amount on time but delayed the deposit of the additional sum, leading the High Court to dismiss the second appeal in limine due to late deposit. The Supreme Court granted leave and held that since the vendee had expressly not pressed the claim for incidental expenses before the trial court, the appellate court erred in imposing that requirement without proper basis. Consequently, the Supreme Court allowed the appeal and set aside the judgments of the lower courts.
- Whether an appellate court can award an amount for incidental expenses that was expressly not pressed by the vendee before the trial court?
- Does the failure to deposit an unpressed incidental amount within the original deadline invalidate a pre-emption decree?
- What is the effect of an issue being abandoned or not pressed before the trial court?
' MIAN BURHANUDDIN KHAN, J.-The dispute in this appeal relates to a haveli constructed on a plot of about 4 Marlas in Pindigheb, District Attock. The said haveli was owned by one Muhammad Khan who, per registered sale-deed dated 6-8-1974, sold it to the respondent for a sum of Rs, 5,000. The appellant filed a suit against respondent in the Court of Civil Judge, Pindigheb on 28-7-1975 praying there for possession of the said haveli on the ground of his preferential right on account of its contiguity to his own house and further that both the properties had a common entrance. The suit was contested by the respondent and in the written statement he not only denied the right of pre-emptor/appellant but also set up the plea that he had incurred an expenditure of Rs, 240 on account of registration of the sale-deed and Rs, 60 which he paid to the Town Committee under the relevant rules and in case the suit is decreed, he will be entitled to this amount as well. The learned trial Court, after recording the evidence of the parties, dismissed the suit of the appellant.
The Judgment, however shows that issue No, 7 which relates to the claim of the respondent for the recovery of Rs, 240 as registration charges of the sale-deed and sum of Rs, 50 which he had paid to the Town Committee was not pressed on his behalf and, therefore, the same was decided in the negative.
2. Aggrieved of the judgment of the trial Court the petitioner filed an appeal in the Court of learned Additional District Judge, Attock which was allowed vide judgment dated 12-7-1978 holding that the pre-emption amount of the suit was to be deposited by the petitioner before 31-7-1978. The record would show that the pre-emption amount of Rs, 5,000 was deposited by the appellant within time but when he obtained a certified copy of the judgment of appellate Court he discovered that he was required to deposit Rs, 290 on account of the claim made by the respondent incurred for the registration of the sale-deed and for making payment to the Town Committee. The case of the appellant is. That since in the trial Court the claim on that account had not been pressed by the respondent, obviously, therefore, he did not expect the learned Additional District Judge to give a finding in that behalf. However, by way of abundant caution he made an application to the appellate Court to allow him to deposit the said amount beyond the target date of 31-7-1978. This request was granted with the observation that "he may deposit the said amount at his own risk.
Aggrieved of the judgment of the learned Additional District Judge the appellant filed S. A. In the High Court but the same was dismissed by a learned Single Judge in limine with the following observation : "The argument is that the learned trial Court had found the issue about this amount (issue No, 7) against the vendee/respondent. But the learned Additional District Judge, without giving any finding on it, has made the appellant responsible for this amount. On a probe from the learned counsel, it was found out that the appellant did deposit after the date fixed in the decree by the learned Additional District Judge. The date so fixed was 31-7-1978 whereas the deposit of this amount was made on 20-8-1978 with the result that the appellant suit stands dismissed."
' The learned counsel contended that the learned Judge of the High Court has misconceived the true scope and nature of the grievance urged by the appellant in the R. S. A. He argued that in the trial Court the respondent had not pressed his claim of Rs, 290 relating to the expenses incurred by him on registration of the sale-deed and making payment to the Town Committee, and, consequently, the learned Additional District Judge had no jurisdiction to reconsider the said question and award the respondent the said amount of Rs, 290.
4. Leave was granted by this Court to consider the contentions raised' by the learned counsel.
Having gone through the record and carefully considered the contentions of the learned counsel, we find that the learned High Court Judge seems to have misconceived the true scope and nature of the grievance urged by the appellant before him in R. S. A. In the trial Court the respondent had not pressed his claim for Rs, 290 relating to the expenses incurred by him on the registration of the sale-deed and making payment to the Committee. The findings on issues Nos. VI to VIII are as follows: "These issues have not been pressed by the learned counsel for the respondent. Hence, decided in the negative. . . ."
' Accordingly, we allow this appeal with costs and set aside the judgment of the Courts below.