Mst. SEMAN vs BARKAT ALI and others
This petition for leave to appeal was filed by the vendees challenging the dismissal of their Civil Revision by the High Court. The core legal question concerned whether the petitioners, as alleged tenants of the suit land, possessed a superior right to purchase the property, thereby defeating the respondents' claim of pre-emption. The High Court had dismissed the petitioners' contention on two grounds: first, that the argument regarding their status as tenants was not pressed before the lower appellate court; and second, that even if the status of tenancy were considered, the petitioners would still fail because they had joined in the purchase with a person who was not a tenant. The Supreme Court found no infirmity in the High Court's reasoning. The Court held that the factual determination by the High Court regarding the waiver of the argument in the lower appellate court was sufficient to dismiss the petition. Furthermore, the Court affirmed the principle that joining a non-tenant in a purchase transaction defeats the claim of a superior right of pre-emption based on tenancy.
- Does joining a non-tenant in a purchase transaction defeat a claim of superior right of pre-emption based on tenancy?
- Can a party raise an argument in a higher court that was not pressed before the lower appellate court?
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by the vendees' side against the dismissal of their Civil Revision by the High Court.
2. ' Although several questions were raised before the High Court but the learned counsel has pressed only one point--that of prior right of pre-emption of the respondents/pre-emptors. He contended that petitioners/vendees were the tenants of the suit land, therefore, the respondents had no superior right of preemption. This argument was also raised before the High Court but was repelled with the observation and finding that it was not pressed before the lower appellate Court.
3. This statement of fact in the impugned judgment is enough to dismiss this petition for leave to appeal. However, the learned Judge in the High Court dealt with this question on merits also and held that even if the question of some of the petitioners being tenants, would have been examined by the higher Courts the petitioners would still have failed, on account of their having joined in the purchase a person who, according to their own showing, was not a tenant.
4. ' After hearing the learned counsel, we do not find any infirmity in the impugned judgment. Leave to appeal accordingly is refused.