2005 PLP 1018 (CLC)

‑‑‑‑S. 42‑‑‑Appeal to Supreme Court‑‑‑Point not taken before Court below could not be taken for the first time before Supreme Court. Mujahid Hussain Naqvi, Advocate for Appellant. Ch. Muhammad Ibrahim Zia, Advocate for Respondents. Date of hearing: 9th March, 2005. CHAUDHARY MUHAMMAD TAJ, J.‑‑‑ This appeal has been filed against the judgment and decree of the High Court, dated 23‑10‑2003 whereby the appeal was dismissed.

2. The facts are that the appellant filed a suit for possession by pre emption in the Court of Civil Judge, Kotli. The suit was decreed against a consideration of rupees fifteen lac. The pre‑emptor appellant filed an appeal before the High Court challenging the consideration amount as claimed rupees two lac in the trial Court. The High Court dismissed the appeal. Hence, a direct appeal before this Court.

3. Before the arguments on behalf of the appellant in support of the appeal, the learned counsel representing the respondents, Ch. Muhammad Ibrahim Zia, raised a preliminary objection that the trial Court passed a decree conditionally subject to the payment of consideration amount for which a date was fixed but the appellant did not make the payment of aforesaid amount nor got issued any stay order from the High Court. It was also argued that in view of the aforesaid facts the High Court while dismissing the appeal did not determine the date for making payment of the consideration amount. Similarly, this Court also did not issue any stay order in this regard, therefore, according to him, the suit was dismissed by operation of law as such the appellant is not entitled to any other relief. 3‑A. Mr. Mujahid Hussain Naqvi, who appeared on behalf of the appellant, argued that the preliminary objection raised by Ch. Muhammad Ibrahin Zia, is of no legal validity as, according to him the point was not raised before the High Court nor before this Court at any stage of the proceedings. It was also argued by him that the trial Court and the High Court failed to resolve the important points arising out of the controversy which included that another case pending; before the trial Court should have been consolidated with this case and thereafter the same were to be decided. The learned counsel also argued that there are number of other legal points which necessitate for remand of the case.

4. We have heard the learned counsel for the parties and also gone through the record. The trial Court passed a decree in favour of the appellant on 12‑9‑2002 against a consideration amount which included the sale‑deed expenses as Rs.16,58,309 to be paid within 30 days till 12‑10‑2002 otherwise the suit would be dismissed. Against the aforesaid judgment and decree the appellant herein filed an appeal before the High Court challenging the consideration amount. The learned Judge in the High Court issued a stay order, dated 1‑10‑2002 in the terms that status quo shall be maintained. However, the High Court failed to determine the time for making payment of consideration amount at the time the appeal was dismissed. The order was further challenged before this Court through a direct appeal where the order passed by the High Court was suspended. Therefore, we do not agree with the learned counsel representing the respondents that the suit stood dismissed as condition of payment of consideration amount was not satisfied.

5. Mr. Mujahid Hussain Naqvi, the learned counsel, apart from arguing that consideration amount was fixed against the evidence on record, also raised number of other points as asking for consolidation of other suit with the suit under discussion and thereby remanding the matter to the trial Court. It may be mentioned that no other point except the point of consideration amount was involved for which the appeal was directly filed before the High Court against the judgment and decree passed by the Civil Judge, Kotli. Therefore, after dismissal of the appeal by the High Court the appellant could file the appeal against the controversy involved before the High Court. It appears that the appellant has consolidated number of other points along with the point involved in the appeal. It does not require any elaborate discussion that the point not taken before the Court below cannot be taken first time before this Court. Therefore, it is held that those points are not legally required to be resolved herein as such are not allowed to be taken.

6. So far as the question of determination of the consideration amount is concerned, the trial Court after receiving evidence and hearing the parties determined the same. The order was upheld by the High Court in an appeal filed on behalf of the appellant after taking into consideration the factual as well as legal aspects of the case through a well‑reasoned judgment. We have also gone through the evidence; though we were not obliged to appraise the evidence at this stage of the case but for the safer administration of justice, the same was done. Therefore, arrive at a conclusion that the consideration amount has been fixed in accordance with law, therefore, there is nothing which may warrant interference of this Court in the order passed by the High Court. The appeal, therefore, dismissed. The appellant is directed to deposit consideration amount along with the sale‑deed expenses determined by the trial Court within 60 days with no order as to costs. 7 Before parting with the order it may be mentioned here that Ch. Muhammad Ibrahim Zia, the learned counsel for respondents, after the arguments prayed to consider authority title Muhammad Shamoon v. Mohabat Khan PLD 1984 SC (AJ&K)

94. The aforesaid citation to view of its distinct facts, in our estimation is not applicable to the case in hand, therefore, the same is not discussed. H.B.T./149/SC(AJ&K) Appeal dismissed.