P L D 1990 Supreme Court 1086 (PLP)

MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑Leave to appeal has been sought by the defendant side in a suit for redemption of mortgaged property; against the remand of a case on acceptance of petitioner's Regular Second Appeal. The suit of the respondents' side was decreed. The petitioner's First Appeal failed and his Second Appeal as noted‑above was only partially allowed. It was only on the plea of the petitioner himself that the final decree for redemption had been passed without passing a preliminary decree ‑‑ reliance was also placed then on Muhammad Snamshad v. Haji Allah Rakha 1980 SCMR

397. Thus the remand order is not only lawful but the petitioner cannot challenge the same because of the aforestated position. In the same judgment the High Court gave findings on the other objections raised from the petitioner's side to challenge the judgments impugned before the High Court against him. For example the locus standi of the plaintiff/respondent to file a suit on the plea that he had already transferred his rights in the property in favour of his wife, was rejected on various grounds including that the wife never raised any objection. Similarly the plea that the petitioner being a co‑sharer in the property would bar a suit for possession and that suit for redemption simpliciter only might have been competent. This plea was also rejected by making reference to the nature of the share and interest of the petitioner in the property. Learned counsel has contended that although the remand order on account of the plea raised from the petitioner's side could be justified but the decision on the other questions going against the petitioner, can be chal?lenged by him before this Court. There seems to be some amount of contradiction in the two positions. If leave to appeal is granted in this case and ultimately the position taken by the petitioner side is upheld it might also affect the remand order which on the point noted by the High Court, it is not denied, was fully justified. In these circumstances it was suggested to the learned counsel that this petition might be withdrawn with a request for permission to refile the same A in case the remanded case ultimately culminates against the petitioner. In principle he had no objection but it seems that he could not take an independent decision. In this behalf he only made reference to his client present in Court. Understandably he might have some difficulty on account of client‑counsel relationship but there is no impediment in this Court passing the same order without his request as being just and proper. We accordingly, dismiss this petition as premature and permit the petitioner to refile it if the remanded case ultimately culminates against him. This of course is in aid of justice and is not barred by the Rules of this Court. M.B:A./A‑806/S????????????????????????????????????????????????????????? Appeal dismissed.