Haji MUHAMMAD NAWAZ vs HUSSAIN SHAH
This direct appeal before the Supreme Court of Pakistan arose from a judgment of the High Court which had set aside concurrent judgments of the lower courts in favor of the pre-emptor appellant. The core legal question was whether the appellant's pre-emption suit could be sustained on alternative grounds of contiguity and easement after the right based on co-ownership was extinguished pursuant to the rule in Sardar Ali and others v. Muhammad Ali and others (PLD 1988 SC 287), which barred pre-emption decrees based on co-sharership after 31-7-1986. The Supreme Court held that the appeal lacked merit because the alternative grounds of contiguity and easement were not raised in the memorandum of appeal or considered in the lower forums, and mere assertion in the plaint without proof did not justify a remand. The appeal was accordingly dismissed with costs. The key principle laid down is that an appellant cannot raise new factual grounds for pre-emption at the apex court stage if those grounds were not urged in the memorandum of appeal or substantiated by evidence below.
- Whether delay can be condoned when a petition for leave to appeal is treated as a direct appeal and becomes barred by time?
- Can a pre-emption suit be maintained on alternative grounds of contiguity and easement if they were not raised in the memorandum of appeal?
- Does the failure to prove alternative grounds of pre-emption at the appropriate stage justify the remand of the case?
ORDER
' SHAFIUR RAHMAN, J.--- This appeal has come up for hearing after notice to parties on an application moved by the appellant for restoration of the status quo order. This appeal was filed as a petition for leave to appeal but has been treated as a direct appeal and on that account held to be barred by 23 days. The appellant has sought condonation of delay on the ground that he remained under the impression that it was a case of leave to appeal but the office informed him that the appeal lay as of right. As a petition for leave to appeal it was within time but not as a direct appeal. We condone the delay.
2. The appellant was the pre-emptor who succeeded in the trial Court in pre-empting an ostensible exchange on the ground that he was a co-owner in the estate where the land sold was situate. The judgment was delivered on 29-111987. The appeal of the vendee failed before the District Judge on 29-2-1988. The High Court in revision set aside both the judgments on the ground that in view of the judgment of this Court in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 no decree could be passed in a pre-emption suit after 31-7-1986 on the ground of being co-owner in the estate.
3. The learned counsel for the appellant contended that in fact a ground of contiguity and easement had also been taken but no decision had been given on it and independently of co- sharership, such grounds could still be available to him for claiming superior right of pre-emption.
On an examination of the memorandum of appeal, we find that no such ground has been taken up in the memorandum of appeal, none appears in the judgments filed and from no other material otherwise brought to our notice except the plaint. The assertion in the plaint was clearly denied. It required proof. If proof had not come at appropriate stage that would not justify the remand of the case.
4. In the circumstances no case is made out and the appeal is dismissed with costs.
Cited by 6 cases
- Mst. GUL JAN Versus NAIK MUHAMMAD 2012 PLD 421
- MAHMOOD HUSSAIN LARIK and others vs MUSLIM COMMERCIAL BANK LIMITED 2009 SCMR 857
- MAHMOOD HUSSAIN LARIK and 2 others vs MUSLIM COMMERCIAL BANK 2011 PLC 307
- ZULFIQAR and others vs SHAHDAT KHAN 2007 PLD Supreme Court 582
- ZULFIQAR and others vs SHAHDAT KHAN & others 2008 PLJ SC 172
- BP PAKISTAN EXPLORATION AND PRODUCTION INC. through its Attorney vs SHER ALI KHAWAJA and another 2008 PLJ SC 1077