AMIR MUHAMMAD and others vs SARDAR and others
This matter concerns a petition for leave to appeal filed by vendees against the dismissal of a Regular Second Appeal by the High Court in a pre-emption case. The petitioners raised two primary contentions: first, that the suit was barred by the principle of partial pre-emption because the plaint failed to specifically mention a 1/6th share in an irrigation well included in the sale transaction; and second, that the respondents lacked a superior right of pre-emption as they were not owners in the village. Regarding the first issue, the Court held, relying on precedent, that an unintentional omission to mention a portion of the subject matter in the plaint does not constitute partial pre-emption. Concerning the second issue, the Court noted that the argument was not raised before the trial court and, being a question of fact, did not warrant interference by the Supreme Court. Consequently, the Court refused to grant leave to appeal, affirming the lower court's decision.
- Does an unintentional omission to mention a portion of the subject matter in a pre-emption plaint constitute partial pre-emption?
- Can a question of fact not raised before the trial court be agitated for the first time in the Supreme Court?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the vendees' side in a pre- emption matter against the dismissal of Regular Second Appeal by the High Court.
2. ' Their learned counsel has pressed two points; (i) bar of partial preemption against the respondents and (ii) that respondents were not owners in the village and, therefore, they have no suprerior right of pre-emption.
3. Regarding the first point, the only argument advanced by the learned counsel is that although 1/6th share in an irrigation well is also the subject-matter of transaction of sale, no mention thereof was specifically made in the plaint. Such an unintentional omission, it has already been held by this Court, does not amount to partial pre-emption--See Naeeam-ur-Rehman v. Muhammad Anwar (1986 SCM R 1488).
4. With regard to the second point, it would suffice to observe that it was not, as admitted by the learned counsel, urged before the trial Court. Be that as it may, it being a question of fact, no justification has been made out for interference by this Court. Leave to appeal accordingly is refused.