KH USH I MUHAMMAD vs SAJJAD HUSSAIN and another
This civil appeal arises from a pre-emption suit where the trial court decreed the suit in favor of the respondent. The District Court initially set aside the decree on technical grounds regarding the deposit of Zar-e-Panjum, though it upheld the trial court's findings on merits like superior right of pre-emption and estoppel. The High Court subsequently set aside the appellate order and restored the trial court's decree without addressing the remaining merits. Before the Supreme Court, the appellant argued that the High Court erred by restoring the decree without deciding the other outstanding issues on merits. The Supreme Court observed that the controversy regarding Zar-e-Panjum had been settled by its earlier precedent in Malik Barkat Ali Dogar v. Muhammad Shafi. Consequently, the Court held that it was improper for the High Court to restore the trial court's decree without adjudicating the remaining factual controversies. The Supreme Court set aside the High Court's order and remanded the case for a fresh decision, while granting the appellant leave to file a formal appeal or cross-objection regarding the merits to ensure complete justice.
- Can a High Court restore a trial court's decree in a pre-emption suit without deciding all outstanding issues on merits?
- Is it appropriate for the Supreme Court to remand a case to the High Court for a fresh decision when the High Court failed to address all factual controversies?
- Does the Supreme Court have the authority to permit the filing of a formal appeal or cross-objection to ensure complete justice in a remanded matter?
1. ' MUHAMMAD AFZAL ZULLAH, C.J.----This direct appeal arises out of a pre-emption case. The appellant is the vendee/defendant. The respondents' suit was decreed in 1985. On appeal the decree in respondents' favour was set aside on technical ground regarding deposit of/security for the Zar-e-Panjum. However, the District Court had upheld the judgment of the trial Court on other questions on merits relating, for example, to the superior right of pre-emption and estoppel. On respondents' appeal against the order of remand, before the High Court, the same was set aside on the finding that the approach of the learned trial Judge regarding the question relating to the deposit of Zar-ePanjum and/or substitution of the order for deposit by an order for security, was unexceptionable. The High Court, however, without determining any further issues relating to the merits of the case other than the question of Zar-e-Panjum while setting aside the appellate order, restored the judgment and decree passed by the trial Court in favour of the respondent/pre- emptor.
2. ' During the course of the arguments it transpired that the controversy in this case regarding Zar-e- Panjum has since been set at rest in a similar case in Malik Barkat Ali Dogar v. Muhammad Shafi and others (PLD 1990 Supreme Court 60). Learned counsel for the appellant realising that the said controversy being no more alive and the said judgment going against the appellant raised the question of the prejudice to the appellant caused by the restoration of the trial Court's judgment and decree, by the High Court without hearing and decision on merits regarding the issues other.
3. Than Zar-e-Panjum.
4. ' Learned counsel for the respondents in principle did not disagree; but requested that this Court may decide those issues and save the parties from further litigation through a remand order.
5. ' After hearing both of them, in the peculiar circumstances of this case, we feel that it would be proper that in order to obtain the opinion of the High Court on factual controversies involved in the other relevant issues, this Court should remand the case to the High Court. Accordingly, while setting aside the order of restoration of the trial Court judgment and decree passed by the High Court on accepting this appeal, we remand the matter to the High Court for decision afresh.
6. ' In order to remove the formal difficulty regarding any technical objection, we in order to do complete justice, permit and direct the appellant to file a formal appeal/cross objection against the judgment and decree passed by the learned Additional District Judge on 12-12-1988 in so far as the finding on facts and merits ot the case were rendered against the appellant. In this context and the above explained circumstances, we further order the condonation of the delay and other formalities in this behalf. There shall be no order as to costs.