1996SCMR1021 (PLP)

IRSHAD HASAN KHAN, J.

Leave to appeal is sought against the judgment dated 7-4-1993 passed by the learned Judge of the Lahore High Court in Writ Petition No. 166 of 1985.

2. The facts in brief are that the land measuring 10 Kanals 1 Maria was sold by Ali Ahmad Shah to the petitioner for a sum of Rs.1,75,000 through a registered sale-deed dated 20-12-1977. Ghulam Haider respondent No.l filed a suit on 5-10-1978 to pre-empt the sale being tenant. The suit was resisted by the petitioner giving rise to various issues. The Collector, in the light of pleadings of the parties, issues arising therefrom and the evidence produced by the parties, dismissed the suit through judgment dated 29-10-1979 holding inter alia that respondent No.1 had waived his right of pre-emption. The issue regarding correctness of the price in the sale-deed was decided in favour of the petitioner. Appeal filed by respondent No.l was accepted by the Additional Commissioner (Revenue), Sargodha Division, Sargodha vide order dated 16-8-1981 inter alia holding that the plea of waiver had not been established. The plaintiff was not entitled to pre-empt a portion of the land as his son was tenant in respect thereto. An amount of Rs.1,36,210 was assessed as price of the land measuring 78 Kanals 8 Marlas for which the decree was passed. This excluded the price of the stamp paper and the Local Bodies tax paid by the petitioner. The revision petition filed by the petitioner against the said order was also dismissed by the learned Member, Board of Revenue. The learned Judge of the High Court after thorough examination of the material on record dismissed the writ petition on the ground that the impugned orders did not suffer from any legal infirmity or jurisdictional defect. The respondent was, however, directed to deposit a further amount of Rs.5,560 and Rs.2,047.50 within two months, failing which the suit would stand dismissed.

3. Malik Talib Hussain Awan, learned, counsel for the petitioner vehemently argued that the Additional Commissioner (Revenue) decreed the suit of the respondent in violation of Order XX, rule 5, C.P.C. without recording his findings on issues Nos. 2, 3 and 4 because the Collector while deciding the suit, had decided all the issues. Regarding issue No.2, the learned Judge of the High Court, after scrutinising the evidence on record, observed that the Additional Commissioner found that waiver had not been established. As to issue No.3 regarding entitlement of the petitioner to recover an amount of Rs.7,000 and Rs.2,625 towards High Court in the exercise of its Constitutional jurisdiction or before this Court. The Constitutional jurisdiction is discretionary in nature and, in $he circumstances of the present case, the High Court rightly declined to exercise that jurisdiction for the purpose of interfering with the judgment of the Additional Commissioner/Board of Revenue merely due to their alleged omission to answer any particular issue in clear terms. The impugned order is based on good grounds warranting no interference. The petition, therefore, fails and is hereby dismissed and the leave is refused. A.A./F-347/S Leave refused