AZIZ AHMAD vs MUHAMMAD TUFAIL and another
This petition for leave to appeal arose from the dismissal of the petitioner vendee's constitutional writ petition by the High Court in a pre-emption dispute. Although the petitioner's right of pre-emption was admittedly weaker than that of the respondent pre-emptor, the primary controversy concerned whether the pre-emptor was estopped by conduct from exercising his pre-emption right. Specifically, upon gaining knowledge of the transaction, the pre-emptor allegedly sought time from the vendor on the ground of lacking funds instead of concluding the bargain immediately. The Supreme Court observed that the Additional Commissioner's finding on the bar of estoppel prima facie appeared correct. Consequently, it required determination whether the Member, Board of Revenue, was justified in overturning that decision in revision, and whether the High Court ought to have intervened under its constitutional jurisdiction. Finding that substantial legal questions required consideration, the Supreme Court granted leave to appeal subject to security.
- Whether a pre-emptor is estopped by conduct from claiming a right of pre-emption if, upon gaining knowledge of the sale, he seeks time from the vendor due to lack of funds instead of concluding the transaction immediately?
- Whether the Member, Board of Revenue, properly exercised revisional jurisdiction in reversing a finding of estoppel against a pre-emptor?
- Whether the High Court ought to exercise its constitutional jurisdiction to set aside an order of the Member, Board of Revenue that improperly reversed a finding on estoppel?
ORDER
' MUHAMMAD AFZAL ZULLAH, J.--This petition by a vendee in a pre-emption matter calls in question the dismissal of his writ petition by the High Court.
2. There is no more dispute about the weaker right of the petitioner as compared to the respondent-pre-emptor's side.
3. The petitioner, in person, sought adjournment on account of absence of his counsel. The same having been refused, we have examined the case as was sought to be made out from the petitioner's side before the lower forum and before the High Court.
The controversy now revolves around the issue whether the transaction having come to the knowledge of the plaintiff, he was not estopped by his conduct when he instead of taking the bargain forthwith (regarding which another agreement was also allegedly drawn), sought time from the vendor because he had no money with him.
4. Prima facie the decision in this behalf by the Additional Commissioner to the effect that the bar of estoppel will apply to the pre-emptor's case was correct; and, it needs to be examined whether the learned Member, Board of Revenue, was right is upsetting that decision in his revisional jurisdiction. It also needs to be examined whether the High Court could not have set aside the judgment of the Member, Board of Revenue, in its Constitutional jurisdiction.
' Leave to appeal, accordingly, is granted. Security Rs,5,000 ' The appeal shall be prepared on the present record with direction to the parties to file all necessary documents.