MUHAMMAD NAWAZ and others vs MUHAMMAD ASLAM and others
This petition for leave to appeal arose from a pre-emption suit concerning a sale mutation dated 20-4-1974. The suit was instituted on 15-4-1975. The trial court dismissed the suit, finding it time-barred because the court-fee deficiency was made up after the prescribed period. The first appellate court reversed this decision, and the High Court maintained the decree in second appeal. The petitioners sought leave to appeal, raising two grounds: first, that the suit was initially filed in an incompetent court and became time-barred by the time it reached the competent court; and second, that the plaintiffs failed to supply the court-fee deficiency within the limitation period, relying on case law regarding net assets. The Supreme Court refused leave to appeal. Regarding the first ground, the Court held it could not be raised for the first time at the leave stage as it involved unexplored factual content. Regarding the second ground, the Court held that the issue was settled by the authoritative pronouncement in Siddique Khan v. Abdul Shakur Khan (PLD 1984 SC 289), leaving no scope for the petitioners' argument.
- Can a party raise a plea involving unexplored factual content for the first time at the leave to appeal stage?
- Does the failure to make up court-fee deficiency within the limitation period automatically render a pre-emption suit time-barred?
' SHAFIUR RAHMAN, J.---The Petitioners, who are the defendants vendees, seek leave to appeal against the judgment of the Lahore High Court dated 15-5-1989 whereby a Regular Second Appeal filed by them, was dismissed.
2. The sale which was the subject-matter of pre-emption suit had taken place through Mutation No, 98 dated 20-4-1974. The suit was instituted on 15-4-1975 in the Court of Civil Judge 3rd Class,.
Kabirwala who ordered for its fixation for 15-5-1975 on which date the pre-emptors were called upon to file the statement of net assets and to make up the deficiency in court-fee by 12-6-1975.
They did not file the copy of the net assets in Court but made up the deficiency in court-fee on 10- 7-1975. The suit was contested on various grounds and a number of issues were framed. The trial Court by an elaborate judgment held that the deficiency in the court-fee was made up after the period prescribed by the Court and outside the period of limitation prescribed for filing the suit hence the suit was barred by time. The suit was dismissed. On appeal, the finding of the trial Court was reversed and the suit was decreed. In second appeal the High Court maintained the decision of the first appellate Court.
3. The learned counsel for the Petitioners has taken up two grounds for seeking leave to appeal. The first one which has not been taken at any earlier stage was that the suit was instituted on 15-4-1975 in an incompetent Court of Civil Judge 3rd Class, Kabirwala, and it was only on 15-5-1975, after the period of limitation, that the competent Court came to handle it. It was by then time-barred.
Secondly, it is contended that the statement of net assets had already been obtained by the plaintiffs and they could work out the deficiency themselves and supply it before the limitation expired. It was not necessary for the Court to have determined the specific amount itself and call upon the plaintiffs to make up the deficiency. Reliance has been placed on the decision in the case Muhammad Ali v. Allah Ditta and 4 others PLD 1979 Lah.
763.
3. The first ground was not urged before any Court or Authority at any earlier stage and cannot be allowed to be raised at this stage because it has a factual content which remains unexplored and undetermined so far.
4. As regards the second ground, an authoritative pronouncement of this Court in the Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 is forthcoming which leaves no scope for the Petitioners on the question of law raised.
5. Leave to appeal is, therefore, refused.
Cited by 1 case
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