2004 PLP 160 (YLR)

This petition for leave to appeal has been filed against the judgment and decree passed by the High Court on 21-6‑2003. The facts leading to the present petition for leave to appeal are that the petitioner filed a pre‑emption suit in respect of the suit‑land in the Court of Civil Judge, Pallandri. It was claimed that the suit‑land was alienated against a consideration of, Rs.6,00,000 but the same was shown as Rs.9,45,

000. The suit after its conclusion was decreed against a consideration of Rs.9,45,000 in addition to sale‑deed expenses. The petitioner filed an appeal challenging the sale consideration before the District Judge, Pallandri which was dismissed. A further appeal before the High Court also failed. Hence this petition .for leave to appeal.

3. Mr. Asghar Ali Mallick, the learned counsel for the 'petitioner, raised sole point that necessary issue with regard to the sale consideration was not framed. It was explained that the petitioner s claim was that after making the payment of the sale consideration Rs.3,45,000 were returned to the vendee therefore an issue on the controversy was not framed. The learned counsel laid a stress that after allowing the leave the case may be remanded to the trial Court for the purpose. The learned counsel relied upon the cases reported as Arif Din v. Badar Din and others PLD 1961 Azad J&K 16 and Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180.

4. Sardar Abdul Hamid Khan, the learned counsel representing the opposite side, while controverting the arguments addressed on behalf of the petitioner, argued in the following manner:‑‑ That the issues were framed in presence of the counsel for the parties with their assistance and then petitioner never raised any objection for framing the aforesaid issue. (ii) That till the decision of the case by the trial Court the petitioner did not raise this point; and (iii) That in presence of an issue with regard to the payment of sale consideration after its determina tion in good faith, the striking off an issue as desired by the petitioner would be redundant. The learned counsel referred to the following authorities in support of his assertions:‑‑‑ (1) Muhammad Lal v. Mokho and 2 others PLD 1979 SC (AJ&K) 15. (2) Tanveer Hussain Shah v. Maqbool Begum and 23 others 2000 MLD 1618.

5. I have heard the learned counsel for the parties and also gone through the record carefully. The controversy confines to the sale consideration only. It was argued by the learned counsel for the petitioner that after the payment of sale consideration the vendor returned Rs.3,45,000 for which the petitioner specifically claimed in the suit but the trial Court failed to frame the issue on the controversy, therefore without an issue the same cannot be resolved. It may be stated that the trial Court framed a comprehensive issue in the terms "whether the sale consideration of Rs.9,45,000 was fixed in good faith which was paid by the vendee". The petitioner‑pre‑emptor could rebut the evidence brought on record by the defendant to disprove the aforesaid issue therefore it was not required to frame another issue on the subject which would have been a redundant issue. The case‑law referred to by the learned counsel for the petitioner reported as Arif Din v. Badar Din and others PLD 1961 Azad J&K 16 though does not fully support the case of the petitioner as the issue was framed in consideration of other implications, however, for clarification I would like to observe that in such eventuality there is no need for framing any other issue. The other authority reported as Ch. Abdul Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180 has no application with its distinct facts to the case in hand.

6. It may also be mentioned that the petitioner never objected for framing any other issue at the time the issues were struck by the trial Court and the point was raised only before the Appellate Courts therefore, he cannot be allowed to raise at this stage of the case. Reliance in this regard may also be placed on Muhammad Lal's case reported as Muhammad Lal v. Mokho and 2 others PLD 1979 SC (AJ&K) 15 where the proposition was resolved in the following words:‑‑ "The contention of the learned counsel that Muhammad Lal, the second vendee, in absence of an issue on the point, was not alive to prove that he is a Mangla Dam displaced` affected person, does not seem to be well‑founded. In this context it is to be seen whether a person who omits to ask for a specific issue can at the stage of appeal be allowed to demand such an issue. It is true that basically it is the duty of the Court to frame issues which arise out of the pleadings of the parties. But it is also the duty of the counsel to get proper issues framed. The appellant never asked for framing of the issues. Therefore, it cannot be said that non‑framing of the issue has prejudiced the case of the appellant. AIR 1935 Lah. 251 (a Division Bench case) is to the same effect. In that case it was held `True that it is the duty of the Court to frame issues which arise out of the pleadings of the parties, but it is also the duty of the counsel to get the proper issues framed'. In view of the matter, it cannot be said that non‑framing of the issues has prejudiced the appellant and this fact is not sufficient for remand of 'the case."

7. In view of` the above discussion, the petition for leave to appeal is merit-less which is dismissed and the leave is refused. Consequently, the stay order issued earlier through a miscellaneous application also stands cancelled. However, the plaintiff‑petitioner shall make the payment of decretal amount of Rs.10,16,032 as determined by the trial Court within thirty days i.e. till 7‑9‑2003 otherwise the suit shall be deemed to be dismissed. H.B.T./383/S Petition dismissed.