2000CLC52 (PLP)

Through this order I intend to dispose of Writ Petition No.4149 of 1999 and Writ Petition No.4150 of 1999 as both of them are between the same parties and involve common question of law and facts.

2. These Constitutional petitions are directed against the order of learned Additional District Judge, Kasur dated 8‑10‑1998 whereby he reversed the judgment of the trial Court, dated 15‑10‑1995 dismissing the application of respondents under section 35 of the Punjab Pre‑emption Act, for restoration, of their suit.

3. Brief facts of the case are that respondents filed a pre‑emption suit against the petitioner in the Court of Civil Judge, Kasur on 12‑5‑1988. It was dismissed as not maintainable on 11‑4‑1989. They filed an appeal which met the same fate on 2‑7‑1989. On further revision this Court vide order, dated 4‑2‑1990 remanded the case. The suit was again dismissed on 25‑7‑1990. The' appeal against said judgment met the same fate on 24‑1‑1991. Further, revision was preferred in this Court which too was dismissed on 1‑6‑1991. Further, petition for leave to appeal filed by the respondents was dismissed on 12‑2‑1992. Respondents filed a review petition before the Honourable Supreme Court of Pakistan which was dismissed on 26‑5‑1992 with the observation that if so advised, the respondents may file an application under section 35 of the Punjab Pre‑emption Act, 1991 consequently, respondents filed another petition under section 35 of the Punjab Pre‑emption Act, 1991 which was dismissed by the learned Civil Judge on 15‑10‑1995. Respondents preferred an appeal whereupon the order of learned Civil Judge was reversed through impugned order, dated 8‑10‑1.998.

4. Learned counsel for the petitioner contends that the application of the respondents under section 35 of the Punjab Pre‑emption Act was dismissed on 25‑4‑1991. Said order was not challenged in appeal or revision. The second application for restoration of the suit submitted by them on 8‑5‑1991 was also dismissed on 16‑10‑1991. This order was also not further challenged. Third application, dated 27‑6‑1992 on the same subject was not maintainable and the learned Civil Judge has rightly dismissed the same on 15‑10‑1995. The learned Additional District Judge was not justified to set aside the aforesaid order and remand the case.

5. Learned counsel for the respondents who has appeared on pre‑admission notice submits that the petitioner had not pressed issues Nos, 1 to 3 before the trial Court. The only issue contested by the respondents was issue No.4 which relates to sufficient cause for restoration of the suit and prays for dismissal of the writ petition.

6. I have heard the learned counsel for the parties and perused the record. The issue about the maintainability of the petition having not been pressed before the trial Court petitioner cannot be permitted to raise these objections in this petition for the first time. This point was. not urged even before the lower Appellate Court. Petitioner is estopped by his own conduct to argue the case on a point abandoned in the lower Courts. Since the case has been remanded by restoring the suit and it is for the respondents to establish that the suit is maintainable and is in confirmity with provisions of the Punjab Pre‑emption Act, 1991. Petitioner has not been able to show any error in the impugned order calling for interference. The petitions have no force and are dismissed with no order as to costs. H.B.T./Q‑22/L Petition dismissed.