DOST MUHAMMAD and another vs MOMAND and another
This matter arises from a petition for leave to appeal filed by the vendees against the dismissal of their Regular Second Appeal in a pre-emption suit. The core legal question was whether an appellate court is obliged to examine a question of limitation regarding prior physical possession raised for the first time in appellate proceedings when it was not pleaded before the trial court. The Supreme Court held that neither the first appellate court nor the High Court is obliged to examine a question of limitation not raised before the trial court. The key principle laid down is that pleas of limitation involving questions of fact, such as prior physical possession in pre-emption cases, cannot be raised for the first time in appellate forums if omitted before the trial court.
- Whether an appellate court is obliged to examine a question of limitation not raised before the trial court?
- Can a plea of limitation involving a question of fact like prior physical possession be raised for the first time in the High Court?
- Is a party entitled to amend its written statement at the appellate stage to raise a new plea of limitation?
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the vendees' side in a pre- emption matter against the dismissal of their Regular Second Appeal. They have lost throughout.
2. ' Learned counsel has contended that the respondents' suit should have been dismissed as time- barred, on account of prior physical possession obtained by the vendees' side. He, however, admitted that this question of fact was raised for the first time in the High Court (when an earlier Regular First Appeal had been filed which was, later decided by the District Court as first appeal).
3. He further stated that the point was raised through an application for amendment of the written statement which was ultimately dismissed by the District Court while dismissing the first appeal.
4. When pointed out to the learned counsel that the first appeal Court or for that matter, the High Court, is not obliged to examine the question of limitation which was not raised before the trial Court as held by this Court in Muhammad Ishaq v. Shah Muhammad (1985 SCMR 799), and Allah Yar Khan v. Mst. Sardar Bibni (1986 SCMR 1957) he did not press the petition any further. The same is accordingly dismissed.
Cited by 1 case
- NOOR MUHAMMAD vs HAKIM BIBI 1989 CLC 1584