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Civil Petition for Special Leave to Appeal No. 299 of 1975, decided on 26th October, 1980.

(On appeal from the judgment of the Lahore High Court dated 5‑3‑1975 in R. S. A. 4/66).

Constitution of Pakistan (1973)‑

‑‑ Art. 185(3)‑Leave to appeal‑Contention that District Judge having held suit to be not maintainable he should not have given decision on merits‑Both parties having proceeded with trial, led evidence on all issues and no cross objection having. been filed by petitioner in High Court as regards finding of District Judge in respondent's favour on issue in question, contention, held, not correct.

Sultan Mahmood v. Muhammad Siddiq P L D 1973 S C 347 ref.

S. M. Zamir Zaidi Advocate and Syed Wajid Hussain Advocate‑on‑Record for Petitioner.

Nemo for Respondents

Date of hearing, 26th October, 1980.

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‑The respondents filed a pre‑emption suit against the petitioner basing the claim on their being co‑sharers in the suit land as well as owners in the estate. The trial Judge dismissed the suit for the reason3 that the plaintiffs had not only failed to prove the preferential right claimed by them and the property being an evacuee property was not pre -emptible. On appeal, the District Judge, Mianwali accepted respondents' claim of preferential right but upheld the view that the property was not pre-emptible, and therefore, dismissed the appeal. In second appeal before Lahore High Court, the respondents, however, succeeded in view of the decision of this Court in Sultan Mahmood v. Muhammad Siddiq (P L D 1973 S C 347), that that pre‑emption suit in respect of evacuee property is competent.

The petitioner now seeks special leave to appeal, from the judgment of the High Court and Mr. S. M. Zaidi, learned counsel appearing for him submits that on the view that prevailed with the learned District Judge that the pre‑emption suit was not maintainable, be should not have given decision on the merits of the case. In other words, the suit should have been at best remanded by the High Court for fresh trial on the remaining issues framed in the suit.

We are not impressed with this submission, for, both the parties proceeded with the trial and led evidence on all the issues framed in the suit, and no cross‑objections were filed by the petitioner in the High Court as regards the findings of the District Judge in respondent's favour on the issue regarding their preferential claim.

This petition has no merit and it is accordingly dismissed in limine.

Petition dismissed.

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