ANWAR KHAN and others vs BAKHSHEESH AH MAD and others
This petition for leave to appeal is directed against the order of the Lahore High Court dismissing the petitioners' Regular Second Appeal, which arose from a suit for possession of land through pre-emption that was decreed in favor of the respondents and upheld by the District Judge. The core legal question concerns whether the respondents had waived their right of pre-emption. The Supreme Court held that the petition must be dismissed because the issue of waiver was explicitly conceded and not pressed by the defendants' counsel before the trial Court, and was not argued before the lower appellate Court or raised as a ground in the Regular Second Appeal. The key principle laid down is that a party cannot be permitted to reagitate an issue in a higher forum that was explicitly conceded or abandoned as not pressed before the trial Court and omitted from grounds of appeal in intermediate appellate courts.
- Can a party raise an issue in the Supreme Court that was conceded or not pressed before the trial Court?
- Whether a Regular Second Appeal can be maintained on a point not argued before the lower appellate Court and omitted from the memorandum of appeal?
ORDER
1. ' JAVID IQBAL, J.--This petition for leave to appeal is directed against order, dated 21st September, 1988 of the Lahore High Court, Lahore whereby R.S.A. Of the petitioners was dismissed.
2. ' Briefly the facts are that the respondents filed a suit for possession of the disputed land through pre-emption on the ground that they were the owners of land in the estate where the land in dispute sought to be pre-empted was situate. The suit was decreed by the trial Court. The appeal of the petitioners against the judgment and decree of the trial Court was dismissed by the District Judge, Toba Tek Singh. Thereafter their R.S.A. Was also unsuccessful as stated above. Hence the present petition.
3. ' Learned counsel for the petitioners argued before us that the respondents had waived the right of pre-emption and that issue to that effect although framed was not correctly decided by the Courts below and evidence on the said issue produced by the petitioners was not properly appreciated.
4. We note that although issue No,3 regarding waiver of right of pre-emption by the respondents was framed but in the judgment of the trial Court under the said issue it is stated as follows: "This issue has been conceded by the learned counsel for the defendants vide his statement got recorded on 17th July, 1983."
5. ' In the High Court order it is mentioned by the learned Judge that even before the lower appellate Court this matter was not argued. Furthermore even in the R.S.A. No ground had been taken that the observation of the trial Court to the effect that the said issue was not pressed was wrong or that it had been duly pressed and argued. It is evident that learned counsel before us is raising issue No,3 regarding waiver of the right of pre-emption by the respondents which was certainly not pressed before the trial Court as correctly observed in the impugned order of the Lahore High Court. Since this is the position no ground is made out for interference. The petition is accordingly dismissed.