GULAB vs Mst. MALKANI
This review petition was filed seeking review of a judgment dated 10-9-1988 dismissing a Regular Second Appeal based on the precedent in Sardar Ali v. Muhammad Ali (PLD 1988 SC 287). The core legal question was whether the ratio of Sardar Ali's case applied to a matter where a decree had already been passed prior to the crucial date. The Lahore High Court held that since the pre-emption suit was decreed on 22-12-1965, prior to the crucial date of 31-7-1986, it was not a 'no decree' case and the appeal must be disposed of on merits. The Court also accepted the explanation for the delay in filing the review application as the factual position regarding lack of knowledge was uncontroverted, condoned the delay, accepted the review application, and restored the Regular Second Appeal to its original number for disposal according to law.
- Does the rule in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 apply to pre-emption suits where a decree was passed prior to the crucial date?
- Can delay in filing a review application be condoned when the applicant lacks knowledge of the dismissal and the opposing party files no counter-affidavit?
- What is the legal effect on an appeal when it is incorrectly dismissed on the premise of being a 'no decree' case?
' This petition for review was filed on 20-7-1989 seeking review of the judgment dated 10-9-1988 whereby the Regular Second Appeal was dismissed on the ground that no decree can now be passed in favour of the appellant/applicant in view of the law laid down in the case of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287.
2. It is pointed out that it was not a 'no decree' case and as such the ratio of Sardar Ali's case does not apply to it This appears to be the correct position as the pre-emption suit filed on 26-11-1963 was decreed by the learned Trial Court vide judgment and decree dated 22-12-1965 and the appeal filed by the appellant was dismissed by the learned Additional District Jude vide judgment and decree dated 5-12-1966. The vendee/applicant had then filed the Regular Second Appeal. The suit having thus been decreed prior to the crucial date, the appeal has to be disposed of on merits.
Learned counsel for the respondent/pre-emptor does not controvert this position. He, however, adds that the application for review is barred by time and should be dismissed as .Such:
3. In reply, learned counsel for the applicant/appellant submits that the appellant was neither present in Court when the appeal was dismissed nor the learned counsel who had entered appearance had informed them of the fate of the appeal. He argued that in fact the appeal would not have been dismissed had the learned counsel pointed out to the Court that this appeal was to be argued and disposed of on merits as the suit had been decreed prior to the crucial date i,e. 31- 7-1986. This factual position has not been Controverted by the respondent/pre-emptor by filing a counter-affidavit. The application filed from the date of, knowledge is admittedly within time. For the reasons given above, the delay in filing the application ~is condoned. The application for condonation of delay is accepted.
4. For all these reasons, the. Review Application is accepted with the result that the appeal stands restored at its original number and shall.Be fixed for disposal in accordance with law.
Cited by 2 cases
- Mehmood Khan Mahar vs Qamar Hussain Puri & 5 others 2019 MLD 249, 2018 SHC 805
- MUHAMMAD SHARIF vs GHULAM ALI 1995 MLD 923