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Petitioner: AMANAT ALI VS Respondent: MUHAMMAD ALI
1988 S C M R 1409
1988 S C M R 1409
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ.
AMANAT ALI and others‑‑Petitioners
versus
Haji MUHAMMAD ALI ‑‑Respondent
Civil Petitions Nos.1264 and 1265 of 1983, decided on 23rd May, 1988.
(Against the judgment and order of the Lahore High Court, Lahore, dated 23‑10‑1958 in R.S.A. 376 of 1978 and R.S.A. 377 of 1978).
Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑S.21‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Pre‑emption suit‑‑ Estoppel‑‑Vendees not raising issue of estoppel before First Appellate Court but raising other points‑‑First Appellate Court thus not examining the point of estoppel‑‑Second Appellate Court not considering question of estoppel as it was not raised before First Appellate Court‑‑,Matter being that of record and statement of facts, what happened in the Court being a part of the judgment of the Court, could not be brushed aside lightly‑‑Petition dismissed.
Muhammad Ilyas Khan, Senior Advocate Supreme Court instructed by. Ch. M.Z. Khalil, Advocate‑on‑Record for Petitioners (in C.P. No.1264 of 1983).
Waheeduddin Virk, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑ on‑Record for Respondent (in C.P. No. 1264 of 1983).
Muhammad Ilyas Khan, Senior Advocate Supreme court instructed by Ch. M‑Z_ Khaki. Advocate‑on‑Record for Petitioners (in C.P. No.1265 of 1983).
Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent (in C.P. No.1265 of 1983).
Date of hearing: 23rd May, 1988.
ORDER
MUHAMMAD AFZAL ZULLAH, J.‑‑These petitions by vendees in pre‑emption matters are directed against the dismissal of their Regular Second Appeals by the High Court.
The learned counsel for the petitioners vehemently contended that the petitioners having established the bar of estoppel against the respondent. pre‑emptor the High Court should have dismissed the suits. Although, technically speaking, the petitioners have failed throughout in the Courts below on the question of estoppel the learned counsel has rightly contended that the decision on merits in this behalf was rendered only by the trial Court. The District Court did not examine the question because as stated in the First Appellate Court's judgment the learned counsel did not raise the point and the second appellate judgment having noticed this observation in the first appellate judgment did not examine the point either in second appeal.
It is specifically noted in the judgment of the District Judge that the learned counsel appearing for the petitioners did not raise the point regarding the issue involved on estoppel. He had no doubt raised the other points. This being a matter of record and statement of facts what happened in the Court being a part of the judgment of the Court, cannot be brushed aside lightly. The argument of the learned counsel that in a similar third case no such failure on the part of the petitioners' counsel is discoverable is also of no help to the petitioners because it would depend upon the judgment and the attitude of the counsel concerned‑‑whether or not to press a point in one or the other case.
After hearing the learned counsel at some length, we do not consider it a fit case for the grant of leave to appeal on the point raised by the learned counsel. The petitions are, therefore, dismissed.
M.B.A./A‑242/S Petitions dismissed.