Mst. KHARO and 2 others vs SHER AFZAL alias SHERAY
This petition for leave to appeal arises out of a pre-emption matter wherein the defendants/vendees challenged the dismissal of their civil revision by the High Court. The core legal question was whether a court is duty-bound to examine a factual question such as the performance of Talabs even when the counsel for the party has expressly given up that plea during the proceedings. The Supreme Court of Pakistan held that the question of Talabs is essentially a question of fact depending on the circumstances of each case, and it is the will and choice of the defendant/vendee to raise or give up such a plea. The Court ruled that if a party knowingly gives up a factual plea, the court is not under a legal duty to examine it on its own. Consequently, the petition for leave to appeal was refused, affirming that parties may waive factual contentions based on their assessment of the case's realities.
- Is it the duty of a court to examine a factual question regarding Talabs in a pre-emption suit if the party has expressly given up that plea?
- Whether the question of whether requisite Talabs were made is a question of fact depending on the circumstances of each case?
- Can a defendant or vendee choose to give up a plea regarding Talabs in a pre-emption matter?
- North-West Frontier Province Pre-emption Act 1987
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, defendants/vendees' side in a pre-emption matter has through this leave to appeal petition called in question the dismissal by the High Court of their Civil Revision.
2. ' Learned counsel for the petitioners in the very outset stated that this being a case under the 1987 Pre-emption Act, it was necessary for the plaintiff/respondent to satisfy the conditions regarding Talabs and the sathe not having been satisfied, the suit filed against the petitioners' side was liable to be dismissed.
3. ' The learned counsel categorically stated that the other points including the ground regarding the respondent's right to seek pre-emption on the qualification of contiguity are not being raised now.
4. He stressed only the ground regarding Talabs.
5. ' The High Court recorded the following observation and note on the questions which the learned counsel sought to be raised in support of this petition: "It may be mentioned at the outset that the learned counsel for the vendees only assailed the findings of the learned lower Courts in regard to the plaintiffs right of pre-emption and did not question the findings in respect of the demands of pre-emption and the sale consideration."
6. ' When faced with this learned counsel argued that he was conscious of this hurdle but notwithstanding the same it was the duty of the High Court to examine this question being one of great importance in the pre-emption matter which is to be decided under the Muslim Law as it is contained in the 1987 Preemption Act of N.-W.F.P.
7. There is no cavil with the proposition that the question of Talabs is the basic and fundamental issue in every pre-emption case under the Islamic dispensation but depending upon the facts and circumstances of each case, it is essentially a question of fact whether or not the requisite Talabs were made by the plaintiff and all the conditions regarding thereto were satisfied. That being so, it is the will and the choice of the defendant/vendee in such a matter to raise or to give up the plea regarding Talabs which otherwise can be raised without any hindrance subject again to the availability of such a plea on merits. In this case the learned counsel for the petitioners having given up the contest on the basis of the points regarding Talabs, and the High Court having proceeded on the said assumption, it cannot be said that the judgment rendered as a result of the giving up the plea regarding Talabs, suffered from any infirmity. We do not agree with the learned counsel that if a party gives up a plea regarding facts of the case, it is still the duty of the Court to examine the same. For example, the learned counsel for the petitioners has given up the plea of the petitioners regarding contiguity when arguing the petition, it cannot be said that it is the duty of this Court despite his having given up the said point, to examine it.
8. Before closing this order it needs to be clarified that when a party gives up a point particularly which relates to facts and circumstances of the case which are best known to the parties themselves, it is always possible to assume that such conduct of the parties might have been influenced by a realization about the actual realities, rather than what is stated in the formal pleadings.
9. ' With the foregoing observation, leave to appeal is refused.
Cited by 6 cases
- HASSAN ABBAS Versus MUHAMMAD MUKARRAM 2017 CLCN 33
- Hassan Abbas vs Muhammad Mukarram, etc 2015 LHC 3400
- MUHAMMAD RAEES vs SABZ ALI and others 2011 CLC 1054
- MUHAMMAD RAEES vs SABZ ALI KHAN etc. 2011 PLJ Peshawar 244
- Mian TAHIR SHAH And Another vs LAIQ ZAMAN And Other 1997 MLD 3201
- RASTA BAZ KHAN vs NASRULLAH JAN K.L.R. 1993 Revenue Cases 87