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Petitioner: MUHAMMAD IQBAL VS Respondent: ALLAH RAKHA
1988 S C M R 1815
1988 S C M R 1815
Present: Muhammad Afzal Zullah and Javid Iqbal, JJ
MUHAMMAD IQBAL and others‑‑Petitioners
versus
ALLAH RAKHA and others‑‑Respondents
Civil Petition No.751 of 1981, decided on 17th July, 1988.
(Against the judgment and order of the Lahore High Court. Lahore, dated 12‑4‑1981 in C.R. No.423‑D of 1981).
Civil Procedure Code (V of 1908)‑‑
‑‑S.115‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Acquiescence‑ Question of estoppel‑‑Trial Court striking off issue regarding estoppel with consent of counsel for both parties‑‑None of them felt aggrieved nor challenged order by way of appeal, revision or review‑ Subsequently suit dismissed by trial Court on ground of estoppel‑‑ Order reversed on appeal on the ground that trial Court was not justified to pass. a different order on same issue when it was declare to be redundant‑‑Decision upheld in revision‑‑ If to appeal‑‑Plea that notwithstanding statements of counsel for 'parties, it was duty of the Court to examine whether the controversy regarding estoppel really existed or not, repelled‑‑Petitioners' counsel having led respondents' side and Trial Court to believe that question of estoppel was no, more relevant for discussion /decision, they would not ordinarily be permitted to reagitate the matter unless some special circumstance is pleaded in this behalf, and particularly so when the point was not pressed in High Court either‑‑Nothing having been said about conduct of petitioners' counsel before trial Court and High Court, nor any other special circumstance having been pleaded, petitioners not permitted to re‑open the question which stood closed by statement of their counsel‑‑Leave to appeal refused.
Javaid Buttar, Advocate Supreme Court and M. Aslam Chaudhry, Advocate‑on‑Record for Petitioners.
Sanaullah Bajwa, Advocate Supreme Court and Ch.Mehdi Khan Mehtabr, Advocate‑on‑Record for Respondents.
Date of hearing: 17th July, 1988.
ORDER
MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought by defendants' side in a declaratory suit, against the dismissal of their Civil Revision by the High Court.
According to the learned counsel, the respondent‑plaintiffs' suit was dismissed as time‑barred and also on ground of estoppel. These findings were reversed by the District Court on respondents' appeal and the suit was decreed. The petitioners having failed in the High Court in its revisional jurisdiction, have now sought leave to appeal.
Learned counsel initially raised two points; one of limitation and the other of estoppel. After some arguments, he specifically gave up the point of limitation and pressed only the question of estoppel.
The learned Judge in the first appellate Court dealt with the question of estoppel as follows:‑
"The learned counsel for appellants has contended that the learned trial Judge has wrongly decided issue No.4 without taking into consideration the earlier order dated 13‑7‑1971 passed by his learned predecessor with the consent of the parties. My attention was invited by the learned counsel for the appellants to the order dated 13‑7‑1971 passed by the then learned Civil Judge. For the convenient disposal of this appeal the said order is reproduced as under:‑
The aforesaid order was passed in presence of the parties and their learned counsel. None of the parties felt aggrieved as such they did not challenge it by way of appeal, revision or review. Therefore, the learned trial Judge was not justified to pass a different order on issue No.4 when it was earlier declared to be redundant."
Learned counsel has contended that notwithstanding the statements of the counsel for the parties, it was the duty of the Court to examine whether the controversy regarding estoppel really existed or not.
We do not agree with him. The petitioners' counsel having led the respondents' side and the trial Court to believe that issue No.4 was no more relevant for discussion or decision, they would not ordinarily be permitted to reagitate the matter unless some special circumstance is pleaded in this behalf. It is particularly so when the point was not pressed in the High Court either. Nothing has been said about the conduct of the petitioners' counsel before the trial Court and the High Court nor any other special circumstance has been pleaded by the learned counsel. We accordingly refused to permit him to re‑open the question which stood closed by the statement of their counsel.
There is no force in this petition. Leave to appeal, therefore, is refused.
M.I. /M‑528/S Petition dismissed.