1990SCMR1621 (PLP)
Haji MUHAMMAD NAWAZ‑‑‑Appellant Versus HUSSAIN SHAH‑‑‑Respondent
| Citation | 1990SCMR1621 (PLP) |
| Forum / Court | High Court |
| Bench Members | Shafiur Rahman, Ahdid Qadeer Chaudhry and Rustam S. Sidhwa, JJ |
| Parties | Haji MUHAMMAD NAWAZ‑‑‑Appellant Versus HUSSAIN SHAH‑‑‑Respondent |
Q1: What are the key laws and sections cited in 1990SCMR1621 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1990SCMR1621 (PLP)?
The case was heard and decided by the High Court bench comprising: Shafiur Rahman, Ahdid Qadeer Chaudhry and Rustam S. Sidhwa, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1990SCMR1621 (PLP) (Haji MUHAMMAD NAWAZ‑‑‑Appellant Versus HUSSAIN SHAH‑‑‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Ch. Muhammad Anwar Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellant.
- Munir Peracha, Advocate Supreme Court and Mchr Khan Malik, Advocate‑on‑Record for Respondent.
- Date of hearing: 2nd May, 1990.
Headnotes / Summary
(From the judgment of Lahore High Cpurt, Multan Bench, dated 2‑5‑1989 passed in Civil Revision No.348‑D of 1988). (a) Limitation Act (IX of 1908)‑‑‑ ‑‑‑‑S. 5‑‑‑Constitution of Pakistan (1973), Art.l85‑‑‑Condonation of delay in filing appeal‑‑‑Appeal was filed as a petition for leave to appeal but had been treated as a direct appeal and on that account was barred by twenty‑three days‑‑‑Appellant had sought condonation of delay on ground that he remained under impression that it was a case of leave to appeal but the office informed him that appeal lay as of right‑‑‑Petition for leave to appeal was within time but not as a direct appeal‑‑ Delay was condoned in circumstances. (b) Punjab Pre‑emption Act (I of 1913)‑‑‑ ‑‑‑‑S. 15‑‑‑Pre‑emption suit was decreed by Trial Court on 29‑11‑1987‑‑‑Vendee's appeal failed in Appellate Court but High Court, in revision set aside both judgments on the authority of Sardar Ali's case reported as PLD 1988 SC 287 that no decree could be passed in pre‑emption suit after 31‑7‑1986 on the ground of being co‑owner in estate‑‑‑Leave to appeal‑‑‑Appellant's pica that in fact ground of contiguity and easement had also been taken but no decision had been given thereon and independently of co‑shareship, such ground could still be available to him for claiming superior right of pre‑emption ‑‑‑No such ground had been taken either in memorandum of appeal or mentioned in the judgments filed or other material on record‑‑‑Such ground if taken, required proof which had not been submitted at appropriate stage and same could not be a ground for remand of case‑‑‑Appeal was dismissed in circumstances.
Judgment & Decree
SHAFIUR RAHMAN, J.‑‑‑ This appeal has come up for hearing after notice to parties on an application moved by the appellant for restoration of the status quo order. This appeal was filed as a petition for leave to appeal but has been treated as a direct appeal and on that account held to be barred by 23 days. The appellant has sought condonation of delay on the ground that he remained under the impression that it was a case of leave to appeal but the office informed him that the appeal lay as of right. As a petition for leave to appeal it was within time but not as a direct appeal. We condone the delay.
2. The appellant was the pre‑emptor who succeeded in the trial Court in pre‑empting an ostensible exchange on the ground that he was a co‑owner in the estate where the land sold was situate. The judgment was delivered on 29‑11 1987. The appeal of the vendee failed before the District Judge on 29‑2‑1988. The High Court in revision set aside both the judgments on the ground that in view of the judgment of this Court in Sardar Ali and others v. Muhammad Ali and others P L D 1988 SC 287 no decree could be passed in a pre‑emption suit after 31‑7‑1986 on the ground of being co‑owner in the estate.
3. The learned counsel for the appellant contended that in fact a ground of contiguity and casement had also been taken but no decision had been given on it and independently of co‑sharership, such grounds could still be available to him for claiming superior right of pre‑emption. On an examination of the memorandum of appeal, we find that no such ground has been taken up in the memorandum of appeal, none appears in the judgments filed and from no other material otherwise brought to our notice except the plaint. The assertion in the plaint was clearly denied. It required proof. If proof had not come at appropriate stage that would not justify the remand of the case.
4. In the circumstances no case is made out and the appeal is dismissed with costs. A.A./M‑1375/S Appeal dismissed.