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Civil Petition for Leave to Appeal No. 172/R of 1985, decided on 2nd February, 1986.

(On appeal from the judgment and order of Peshawar High Court, Abbottabad Bench, dated 2‑12‑1984 in Civil Revision No. 168 of 1983).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), 5.115‑‑Issues not pressed /abandoned at trial‑‑Not allowed to be agitated before High Court in Revision against judgment of trial Court‑‑Plea raised in Supreme Court that counsel who made this contention was never permitted to press material issues and that it being a pure question of law, be permitted to be re‑agitated, disallowed‑‑Petition being devoid of merits, dismissed.

Maulvi Siraj‑ul‑Haq, Advocate Supreme Court and M. Afzal Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Dated of hearing: 2nd February, 1986.

‑By this petition leave is sought to appeal against the judgment and order of the Peshawar High Court, Abbottabad Bench, date 2‑12‑1984 passed in Civil Revision No. 168 of 1983.

2. Muhammad Habibullah Khan, then minor, through Muhammad Ayub Khan, his next friend, filed a suit against the petitioners for possession by pre‑emption of 52/54 share out of total area measuring 2 Kanals and 14 Marlas situate within the limits of Haripur Town Committee. Fazal Dad was added as defendant in the amended plaint as the first vendees Khudadad and Mansabdad had allegedly transferred the property to Fazal Dad (now dead) represented by petitioners Nos. 3 to 7. In the joint written statement the defendants in the suit, raised several legal and factual objections to the maintainability of the suit. The trial Court framed as many as 8 issues, and decreed the suit of the pre‑emptor Muhammad Habibullah Khan on payment of Rs.36,000 as sale consideration. In appeal filed by the defendants /vendees against the judgment and decree of the trial Court only issue No. 6 i.e. whether a sum of Rs.36,000 was fixed in good faith or paid was pressed before the learned Additional District Judge while the rest of the issues were either not pressed or abandoned. The learned Additional District Judge, agreeing with the finding of the trial Court, dismissed the appeal. Revision petition filed before the High Court was dismissed, vide the impugned order with the following observation:

"In this revision petition the learned counsel wanted to address his arguments on the other issues, decided against: the defendant, vendees in the trial Court, and maintained by the learned District Judge. When the learned counsel was pointed out that before the learned District Judge, findings given over the rest of the issues, had not been challenged so he was not entitled under the law, to re‑agitate the findings on those issues, in this revision petition. Reference may be made to sub‑pare. (2) of para. 5 of the judgment of the learned District Judge which reads as under:‑

'During the course of arguments the learned counsel for the appellant, just confined his arguments on issue No. 6 only i.e. fixation of sale consideration and its payment. to the vendor, and he did not press or argue any of the remaining issues framed by the learned trial Court'.

Faced with the situation the learned counsel was unable to cite any authority in support of his contention that issue not pressed and abandoned at the trial, can be re‑agitate in appeal or revision against the judgment of the trial Court. No other point was argued."

3. The learned counsel when asked to support his arguments with any authority on the point that he can, after having abandoned or having not pressed certain issues, re-agitate the same before this Court, answered that in fact the counsel who made this contention was never permitted to press the material issues and that it is a pure question of law, and, therefore, may be permitted to re‑agitate or to raise contention in this behalf. In the circumstances of the case, we would not allow him ' to do so now. Otherwise also the points covered by other issues are also not of any assistance to the case of the petitioners. We find no merit in the petition which is, consequently, dismissed.

M .I . Petition dismissed.

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