ABDUL HAFEEZ vs AMIR

1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court has arisen out of the following circumstances: ' The respondent's pre-emption suit in respect of the suit house was dismissed by the trial Court but on appeal it was decreed by the District Judge. In the second appeal the High Court affirmed the first appellate judgment.

2. The respondent has based his superior right of pre-emption on the assertion that he was owner of a house, other than the suit house, which is contiguous to the latter house. On the other hand the appellant/vendee's plea was that the house contiguous to the suit house, which the respondent claimed to be his, actually belongs to the appellant, therefore, he had superior right as compared to the respondent/plaintiff who had nothing to do with the said contiguous house. The appellant had also initiated eviction proceedings against the respondent regarding the said contiguous house without any success. He then filed another suit about the title of that contiguous house which was dismissed. His appeal against the said dismissal filed before the District Court was, on account of the earlier decree passed against him in the present pre-emption suit, dismissed. He then filed a revision in the said other case before the High Court which, it is stated at the Bar, is still pending. Its number is Civil Revision No,1706-D of 1983.

3. Leave to appeal was granted to examine the argument as to whether the pre-emption matter, in the above circumstances, could be finally adjudicated separately before final adjudication of the controversy about the ownership of the said contiguous house on the basis of which both sides had claimed superior right of pre-emption.

4. ' At the outset of the arguments two alternatives were discussed. One, whether this appeal could not be kept pending so as to await the decision of the Civil Revision by the High Court. This was abandoned because the thinking so far in the separate round of litigation is that whatever is decided in the present case about the title regarding the contiguous house, might clinch the same issue in the other litigation on the principle of res judicata. It is this very question which is pending before the High Court and the Civil Revision may remain pending till this appeal is decided finally by this Court.

5. ' The other alternative discussed was that the evidence of the parties regarding title to the contiguous .House being available on the record of this appeal, we should decided this question finally so as to curtail the agony of the parties. When we started examination on this line, it was discovered that except for the trial Court neither the first appeal Court not the High Court decided this question on merits. The reason of this omission was one of hyper-technicality.

6. ' Learned counsel for the respondent supported the High Court approach in this behalf by vehemently contending that the question of title regarding contiguous house having been decided in favour of the respondent's side by the trial Court the suit was, however, dismissed on ground other than those on merits. The respondent's appeal regarding those grounds succeeded and because the appellant had not filed any cross-objection, therefore, the District Judge was not obliged to decide the question of title regarding contiguous house. Accordingly, the decree was passed in respondent's favour. The High Court followed the same line of approach. On face the argument of the learned counsel un dobutedly is attractive but this case has another important feature; namely, that in the other independent round of litigation also regarding title, the District Court did not decide this question on its own merits on the ground that it had been decided on merits in the present round of litigation. Although the revision petition in that litigation is still pending in the High Court the fact remains that the question of title has not been examined beyond the trial Court, neither in the present litigation nor in the other litigation.

7. ' On this, we called upon the learned counsel for the respondent to show cause why in exercise of the power to do complete justice this Court should not remand the present case also to the High Court so that the question of the title of the contiguous house as well as the other related similar questions should be decided when hearing together the aforementioned revision and the present case.

8. He halfheartedly supported the suggestion but insisted that reservation should be made that appellant shall not be entitled to raise the question of title of the contiguous house as he had failed to file the cross-objection before the District Court. This amounts to begging the question and arguing in a circle. The concept of complete justice has been invoked in order to avoid all these technicalities. Accordingly, while accepting this appeal the impugned judgment is set aside and the case is remanded to the High Court for fresh decision of the second appeal which shall be deemed to be pending. Both the matters thus pending, the Civil Revision and the other appeal, shall be heard together. The appellant shall be at liberty to raise all available pleas and the High Court shall decide the question of title of the contiguous house on the evidence available on record; unless it decides to admit additional evidence. There shall be no order as to costs.