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Civil Appeal No. 45 of 1984, decided on 25th March, 1984.

(On appeal from the judgment, dated 19th December, 1981 of the Lahore High Court, Lahore in R. F. A. 200 of 1981).

‑‑‑ Art. 185(3)‑Pre‑emption suit ‑Vendee‑appellant's appeal before High Court challenging decree of trial Court in respect of four out of ten issues‑Appeal admitted only to consider appellant's entitle ment to compensation for improvements‑Leave to appeal granted to consider whether admitting order amounted to dismissal of appel lant's appeal in regard to pleas other than that of compensation for improvements without assigning any reason for such dismissal.

‑‑ Art. 185(3)‑Appeal before Supreme Court‑Question raised in appeal found to be subject‑matter of review before High Court Appellant's counsel informing that they intend to press their review petition before High Court‑Appeal dismissed in circumstances of case.

Muhammad Saghar Bhatti & Sons v. Federation of Pakistan P L D 1958 S C 221 and Abid Hussain v. Afsar Jahan Begum P L D 1973 S C 1 cited but not examined.

Ch. Mushtaq Ahmad Khan, Advocate Supreme Court and S. Wajid Hussain, Advocate‑on‑Record (absent) for Appellants.

C. A. Rehman, Advocate Supreme Court and Rana Maqbool Ahmad, Advocate‑on‑Record (absent) for Respondents.

Date of hearing : 25th March, 1984.

This appeal with leave of this Court is direct ed against the judgment of a Division Bench of the Lahore High Court dated 19‑12‑1981, admitting the appeal filed by the appellants to consider just one of the several questions agitated in the appeal.

The relevant facts briefly are that the appellants who are vendees/heirs of vendees, filed a Regular Appeal in the High Court against the decree passed against them by the trial Court in a pre‑emption suit. As many as ten issues had been framed and decided in regard to the controversy between the parties, of which the findings on Issues Nos. 1, 2, 9 and 10 had been specifi cally challenged in the memorandum of appeal. However, the appeal was admitted only "to consider the question of appellants' entitlement to com pensation for the improvements alleged to have been effected by them". The High Court also did not allow them any interim relief in regard to the possession of the disputed land for the reason that the appellants will have to part with the disputed land in any case.

Although the appeal of the appellants was still pending in the High Court, leave to appeal was sought from this Court (by filing a petition for leave to appeal ‑C. P. S. L. A. No. 145 of 1982) alleging that the admitting amounted to a dismissal of the appeal filed by the appellants in regard to their pleas, other than that of compensation for the improvements with out the High Court having assigned any reason for such dismissal. The dismissal of the appeal on those other pleas was, therefore, bad in law. Reliance was placed, inter alia, on this Court's decision in Muhammad Saghir Bhatti & Sow v. Federation of Pakistan (P L D 1958 S C 221) and Abid Hussain v. Afsar Jehan Begum (P L D1973 S C 1).

Leave to appeal was granted to consider the above point on 6‑2‑1984.

When the appeal came up for hearing today, we were informed that the appellants had after filing a petition for leave to appeal in this Court against the order of the High Court dated 19‑12‑1981, also filed a review petition in the High Court against the same order and along with the slid review petition had also prayed for the grant of a stay order. We were further informed that when these matters came up before the High Co on 21‑2‑1983, the learned Judges of the said Court, so far as the review petition is concerned, directed that the same shall be considered along with main appeal but granted an interim stay order, subject to notice, to order side. On 5‑3‑1982, however, the said stay order was not confirmed and the application for stay dismissed. The appellants whereupon filed a miscel laneous application (C. M. P. No. 116 of 1983 in C. P. S. L. A. No. 145 1982), for maintenance of status of quo till the disposal of the petition p leave to appeal; this request was allowed and an order for maintenance status quo issued by this Court on 9‑3‑1983, of The appeal has been put up for hearing today.

After hearing learned counsel for the parties, we feel that the question, raised in this appeal, namely, whether the admitting order passed on 19‑12‑1981, confined as it is to only one question amounts to dismissal of the appeal preferred by the appellants before the High Court in regard to their pleas other than the plea noticed therein and, if so, whether the said other pleas could be dismissed without assigning any reason in that behalf, s now the subject‑matter of a review and the High Court can undoubtedly while hearing the appeal, decide to consider the other pleas which were agitated in the memorandum of appeal, but did not find favour, without assignment of reasons, at the time of the admission of the appeal, while disposing of the appeal final.

We also observe that the learned counsel for the appellants has informed us that the appellants intend to press their review petition before the High Court. In these circumstances, we would ‑not, in the above situation, lice to pre‑empt the decision of the High Court on the point raised before as which is presently also before the High Court.

This appeal must, therefore, fail on the ground that the question being agitated before us is also being pressed in the review petition pending before the High court.

The appellants, however, prayed that their possession may be protected until the final disposal of the appeal by the High Court.

Since the appeal preferred before this court is being dismissed, the said court becomes functus officio with regard to this matter. The learned counsel for the appellants stated that he proposes to move the High Court again for the issuance of a stay order. He is at liberty to do so. The learned counsel for the respondents gave an undertaking before us that the appellants shall not physically be evicted from the area in dispute for a period seven clear days from today.

The upshot is that this appeal stands dismissed, but the parties will be left to bear their own costs.

S.Q. Appeal dismissed.

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