1989 SCMR 1542 (PLP)
NOOR AHMAD and others Petitioners Versus NAWAZISH ALI Respondent
| Citation | 1989 SCMR 1542 (PLP) |
| Forum / Court | High Court |
| Bench Members | Muhammad Afzal Zullah and Saad Saood Jan, JJ |
| Parties | NOOR AHMAD and others Petitioners Versus NAWAZISH ALI Respondent |
| Primary Law | Civil Procedure Code (v of 1908)‑ |
Q1: What are the key laws and sections cited in 1989 SCMR 1542 (PLP)?
This judgment primarily cites: Civil Procedure Code (v of 1908)‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1989 SCMR 1542 (PLP)?
The case was heard and decided by the High Court bench comprising: Muhammad Afzal Zullah and Saad Saood Jan, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1989 SCMR 1542 (PLP) (NOOR AHMAD and others Petitioners Versus NAWAZISH ALI Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Shahzad Jahangir, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.
- Nemo for Respondent.
- Date of hearing: 21st May, 1988.
Headnotes / Summary
(From the judgment, dated 25‑4‑1983 of the Lahore High Court, Multan Bench, in Civil Revision No.163‑D of 1981). ‑‑‑O.XLI, R33‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Question agitated before Supreme Court was whether or not under Rule 33 of O.XLI, C.P.C. the appellate Court could vary the terms of the decree in the absence of cross objections‑‑Leave to appeal granted to interpret R. 33 of O. XLI, C. P. C.
Judgment & Decree
SAAD SAOOD JAN, J.‑‑The respondent filed a suit for pre‑emption. One of the issues before the trial Court was whether the ostensible consideration of Rs.45,000 was fixed in good faith and actually paid. The trial Court recorded a finding in the affirmative on this issue and called upon the respondent to pay Rs.45,000 as the purchase price. The vendees filed an appeal before the District Judge. The pre‑emptor did not elect to file any cross‑objections. Nevertheless, while dismissing the appeal of the vendees, the learned District Judge reduced the purchase price to Rs38,
000. The vendees preferred a revision petition before the High Court. Their case was that in the absence of cross objections the learned District Judge was not competent to vary the terms of the decree so as to reduce the purchase price. A learned Single Judge in the High Court dismissed the revision petition holding that even in the absence of cross objections the appellate Court had the power under Rule 33 of Order XLI, civil Procedure Code, to vary the terms of the decree. The vendees now seek leave to appeal from this Court.
2. In Khairati v. Aleem‑ud‑Din (P L D 1973 S C 295) this Court took the view which has been canvassed by the petitioners that in the absence of cross objections the appellate Court could not vary the terms of the decree. On the other hand, in Province of West Pakistan through the Secretary Revenue Department v. Associated Hotels of India Ltd. (1973 S C M R 367) and in some later judgments a different view has been taken on the language of Rule 33 of Order XLI which reads as follows:‑‑ "The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties may not have filed any appeal or objection Provided that the Appellate Court shall not make any order under section 35‑A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." The interpretation of this rule needs further consideration. Leave to appeal is granted. Security for costs in the sum of Rs.5,
000. The appeal may be made ready for hearing on the present record with permission to the parties to file additional documents, if necessary. M.A.K/N‑158/S Leave granted.