Mst. ROBINA and anothers vs IJAZ HUSSAIN KAZMI and others
This appeal arose from a pre-emption suit where the appellants' decree was conditional upon depositing pre-emption money by a specific date, failing which the suit would be dismissed. Their subsequent appeal and civil revision were dismissed. Leave to appeal was granted by the Supreme Court on the assumption that the Additional District Judge, in the first appeal, had not applied his mind to the appellants' request for an extension of the deposit period or suspension of the order. However, the respondent's counsel pointed out that the Additional District Judge had, in fact, considered the application for suspension and, while admitting the appeal, only restrained the respondents from drawing the pre-emption money if deposited, without suspending the deposit requirement itself. The Supreme Court found that the Additional District Judge had applied his mind, contrary to the premise for granting leave. Consequently, the appeal was dismissed, as the ground for granting leave was found to be factually incorrect.
- Can leave to appeal be sustained if the factual premise upon which it was granted is found to be incorrect?
- Does an order restraining respondents from withdrawing pre-emption money equate to a suspension of the decree-holder's obligation to deposit the money?
- Is it necessary for an appellate court to explicitly state its reasoning when declining to suspend a lower court's order?
' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances:--
1. Appellants' suit for pre-emption was decreed on 3-1-1984 on condition of deposit of Rs,37,815 minus 1/5th pre-emption money already deposited before 8-2-1984 failing which the suit was to stand dismissed. The appellants filed an appeal which was dismissed by the learned Additional District Judge, II, Sahiwal vide judgment and decree dated 14-3-1984. The appellants filed a Civil Revision which too was dismissed by a learned Judge of the Lahore High Court vide order dated 16- 1-1985. The appellants sought leave to appeal on the ground that "even though the question whether extension should be granted or not was within the discretion of the learned Additional District Judge, yet he did not exercise his discretion in this regard one way or the other, for, his judgment does not indicate that he had applied his mind to this aspect of the case". Leave was granted on 31-5-1988.
2. Learned counsel for the respondent has pointed out that when the appeal in the first instance came up before the learned Additional District Judge, II, Sahiwal with an application for suspension of the order dated 3-1-1984, directing deposit before 8-2-1984, the appeal was admitted and it was directed that "the respondents are restrained from drawing the preemption money, if deposited by the decree-holder in Court within time till the decision of this appeal". This is vide order dated 29-1- 1984. Learned counsel submitted that the Additional District Judge II, Sahiwal had applied his mind to the request of the appellants for suspension of the order dated 3-1-1984 but had not acceded to.
He only directed that the respondents shall not withdraw the amount till the hearing of the appeal.
3. Since leave was granted on the assumption that the learned Additional District Judge had not applied his mind which he had done as is apparent from his order dated 29-1-1984. There is no force in this appeal. It is accordingly dismissed but in the circumstances the parties are left to bear their own costs.