Find a Lawyer

Civil Petitions for Special Leave to Appeal Nos. 196, 236 and 238 of 1971, decided on 3rd May 1972.

(On Appeal from the judgment and order of the High Court, Lahore, dated the 22nd September 1971, in R. S. As. Nos. 186, 187 and. 160 of 1970, respectively).

Civil Procedure Code (V of 1908),

S. 100‑Question not urged in Courts below‑High Court, held, right in not permitting such question to be raised for first time in second appeal.

S. M. Zamir Zaidi, Advocate Supreme Court instructed by S. Wajid Hussain, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 3rd May 1972.

These three petitions are from three different orders of the High Court at Lahore passed in Regular Second Appeals, and similar questions of facts and law are involved in them. They are, therefore, disposed of by one order.

The respondents' suit for pre‑emption was decreed against the petitioner vendee by the trial Court subject to the condition of payment of Rs. 1,650.

The petitioner preferred an appeal before the learned Additional District Judge and pressed objections with regard to issues Nos. 5 and 6 only. These issues related to the payment of Rs. 2,000 in good faith by the vendee and to the question of the market value of the property in dispute. The appeal was dismissed.

The petitioner preferred a Second Appeal before the High Court and sought to raise questions which were not raised by him in the first appellate Court. These questions were whether the property was evacuee property and whether it was pre‑emptible, what was the valuation of the property for purposes of court‑fee and improvements. The High Court did not permit the petitioner to argue these points on the ground that although those ques tions find mention in the memorandum of appeal, they were not argued before the first Appellate Court and therefore, could not be raised for the first time in second appeal.

The High Court rejected for good reasons the contention that the suit was barred by limitation.

Before this Court the same questions have again been sought to be raised on the ground that they were in fact raised before the first appellate Court and in support of this contention an affidavit has for the first time been filed. This affidavit should have been filed before the High Court. In the absence of any such affidavit the High Court acted rightly in not permitting the petitioner to raise those questions.

This Court for similar reasons cannot permit the petitioner to raise those very questions for the first time.

It appears that the trial Court, while passing the decree directed that the respondents should pay the deficient court‑fee. It has, therefore, been contended that the Court had no jurisdic tion to pass such an order as it become functus officio as soon as it passed the decree.

This contention is misconceived as it fails to take notice of the fact that the order to pay deficient court‑fee was passed contemporaneously with the decree and indeed formed part of it.

There is no substance in the three petitions and they are accordingly dismissed.

Leave refused.

Find a Lawyer Near You

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