Mst. SARDARAN BIBI and others vs ISLAM KHAN and others
This matter arises from a petition for leave to appeal filed by the vendee side against the dismissal of their regular second appeal by the High Court in a pre-emption suit. The High Court had dismissed the appeal in limine on the ground that the question of limitation, having been denied by the Additional District Judge as having been argued before him, was deemed to have been abandoned. Before the Supreme Court, the learned counsel for the petitioners conceded, in light of subsequent binding precedent of the Supreme Court in Allah Yar Khan v. Mst. Sardar Bibi and others (1986 SCMR 1957), that he was unable to press the petition. Consequently, the Supreme Court refused leave to appeal. The key principle governing the matter relates to the treatment of points raised in memorandum of appeal but not addressed or verified as argued before the lower appellate court.
- Whether an appellate court is justified in treating a point of limitation as abandoned when the trial or lower appellate judge denies that it was argued?
- Does the failure to press a petition for leave to appeal in light of settled subsequent case law result in the refusal of leave?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the vendee side in a suit for pre-emption against the dismissal by the High Court of their regular second appeal. The impugned order reads as follow:- "This R.S.A. Arises out of the judgment dated 10-10-1982 of the learned Additioal District Judge Sialkot in a pre-emption suit. The only question urged by the learned counsel for the appellants in this appeal is that the . Suit was barred by time. Learned Additional District Judge Sialkot failed to advert to this aspect of the matter notwithstanding the fact that it was specifically taken in the memorandum of appeal as well as argued by Malik Amjad Pervaiz Advocate before the learned appellate Court.
2. ' Report was called for from the learned Additional District Judge Sialkot. He has specifically denied that the learned counsel addressed any arguments on the question of limitation in support of his appeal. This being so the question raised in this appeal is deemed to have been abandoned and I have no reasons to disbelieve the learned Additional District Judge. No other point has been urged before-me. In view of the above the appeal fails and is hereby dismissed in limine."
3. Learned counsel in fairness to the absence of respondents party has stated that the point of law involved in this case has been resolved by the Supreme Court after the filing of this petition for leave to appeal. He has cited Allah Yar Khan v. Mst. Sardar Bibi and others (1986 SCM R 1957).
4. ' Accordingly on account of this compulsion he was not able to press the petition. Leave to appeal, therefore, is refused.