ABDUL AZIZ KHAN vs Raja MUHAMMAD KHAN
This petition for special leave to appeal arises from a pre-emption suit initiated by the respondent, which was initially dismissed by the trial court on the finding that the respondent had waived his right of pre-emption. Upon appeal, the District Judge reversed this decision and decreed the suit, a judgment subsequently maintained by the High Court in second appeal. The petitioner sought leave to appeal before the Supreme Court, primarily arguing that the respondent had waived his right of pre-emption and that the disputed property, being commercial in nature, was not subject to pre-emption. The Supreme Court examined the evidence and found the petitioner's plea of waiver unsubstantiated, noting the respondent's categorical denial of any offer or waiver. Furthermore, the Court held that the argument regarding the commercial nature of the property could not be entertained as it was not raised before the trial court and thus not put to trial. Consequently, the Supreme Court dismissed the petition, affirming that new legal pleas cannot be introduced for the first time at the appellate stage.
- Can a plea regarding the nature of the property as commercial be raised for the first time in an appellate court?
- Is a finding of waiver of the right of pre-emption sustainable when the evidence supporting the waiver is found to be unsatisfactory and contradicted by the respondent?
- Does an appellate court have the authority to entertain a new legal argument that was not raised or put to trial in the court of first instance?
ORDER
' SAAD SAOOD JAN, J.--This petition for special leave to appeal arises out of a pre-emption suit filed by the respondent. It was dismissed by the trial Court with the finding that he had waived his right.
In the first appeal the District Judge reversed this finding and decreed the suit. In second appeal by the petitioner the High Court maintained the decree of the first appellate Court. The petitioner seeks leave to appeal from this Court.
2. In support of this petition the learned counsel has again pressed the plea of waiver. He points out that while appearing as his own witness at the trial the petitioner had stated that the respondent had assured him that he would not exercise his right of pre-emption. The respondent did not care to challenge his assertion in this regard. In the circumstances, the Courts below should have accepted his assertion.
3. After going through the evidence of the parties we are unable to accept the contention of the learned counsel. It is to be noticed that when the respondent appeared in the witness-box he categorically denied that the land was offered to him before its purchase by the petitioner. Apart from that, the evidence led by the petitioner in support of his plea is extremely unsatisfactory.
Consequently, both the High Court and the District Judge were justified in rejecting it.
4. The learned counsel for the petitioner has next argued that the property in dispute was of commercial nature and as such it could not be a proper subject for the exercise of the right of pre- emption. This contention is again without merit. It was not raised before the trial Court and for that reason it was not put to trial. It could not, therefore, be advanced at the appellate stage for the first time.
5. This petition is without any merit and is hereby dismissed.
Cited by 1 case
- FAIZ BAKHSH vs MUHAMMAD RAMZAN 1999 YLR 584