Find a Lawyer

Civil Appeal No. 50 of, 1966, decided on 23rd October 1967.

(In the matter of clarification of the judgment of the Supreme Court, dated the 12th April 1967).

, r. 6‑Application for deletion/clarification of certain observations made in judgment Observations not in nature of findings‑Application dismissed but Supreme Court nevertheless indicated in order that observations made should not be treated as findings by Court below to which case had been remanded for re‑hearing.

'Mahmud Ali Qasuri, Senior Advocate Supreme Court instructed by M. Siddiq, Senior Attorney for Respondent Applicant.

Peer Bakhsh Khan, Advocate Supreme Court instructed by Iftikharuddin Ahmed, Attorney for Appellants.

Date of hearing : 23rd October 1967.

This is an application by the respondent under Order XLIX, rule 6 of the rules of this Court for deletion and/or clarification of certain observations made in the judgment of this Court delivered on the 12th of April 1967.

The three observations sought to be deleted are at pages 2 and 3 of the judgment of this Court . to the following effect .‑

(a) that the words "and forfeit any premium paid by the lessee" occurring in the last 2 lines of the second paragraph at page'2,

(b) the words "the respondent took no steps for the construc tion of the cinema house within the stipulated period" occurring in the first two fines of the third paragraph at page'2, and

(c) the words "as time was of the essence of the contract" occurring in lines 5 and 6 at page 3.

These observations are contained in the portion of the judg ment reciting the facts of the case arid were, by no means, findings recorded by this Court.

Learned counsel for the said respondent, however, contends that since these are observations of the highest Court in the coun try they might have the. effect ,of influencing the Court below to which the appeal has been remanded for hearing and might cause embarrassment to the said Court.

It is his contention that he has throughout been contending that there was no clause in the contract providing for forfeiture of the premium, that he had taken diligent and reasonable steps for starting the construction and that, according to his client, time was not of the essence of the contract. In support of this he has also drawn our attention to certain findings recorded by the learned District Judge in first appeal. To avoid the possibility of its being contended in the High Court that this Court had held to the contrary it is prayed on behalf of the respondent that these observations, which were not necessary for the decision of the case before this Court, might be deleted or at least it should be clarified that these were not intended to be findings recorded by this Court and should not be treated as such.

Learned counsel appearing for the appellants, on the other hand, argues that this application was wholly unnecessary, as no one reading the judgment as a whole would be likely to treat these observations as findings.

However, in order to avoid any misunderstanding we feel that it will be sufficient to indicate that these observations should not be treated as findings recorded by this Court and that the High Court should in hearing the appeal come to its own independent decision on these questions.

With these observations this petition is dismissed but there will be no order as to costs.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.