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Civil Petition for Special Leave to Appeal No. 963 of 1975, decided on 24th February, 1981.
(On appeal from the judgment and order of the Lahore High Court, dated 12‑8‑1975 in R. S . A . 499 of 1975).
‑‑‑Art. 185(3)‑‑Leave to appeal, grant of‑‑Plea of waiver dropped in trial/first appellate Courts‑‑Supreme Court refused leave to examine same.
Talib Hussain Rizvi, Advocate Supreme Court and M.A. Qadri, Advocate‑on‑Record for Petitioner.
As the petitioner purchased some land from one Ahmad Khan, the first respondent to whom we will refer as the respondent, filed a suit to pre‑empt the sale. Although the pleadings have not been filed, Mr. Naqvi stated that the petitioner had contested the suit on two grounds. The first was that the respondent did not have a superior right of pre‑emption as he was not an owner in the village in which the petitioner had purchased the land in dispute. The second was that the respondent had participated in the negotiations of this sale and was responsible for a reduction of the sale price. Therefore, it was submitted that the suit was barred by waiver. It would also appear from the judgment of‑ the trial Court that the suit was resisted on the further ground that the land in dispute was owned by the State. This objection was decided against the petitioner by the Lahore High Court and for the purpose of this petition it is sufficient to state that the respondent's suit was decreed by the Civil Judge, Bhakkar on 23‑9‑1974, and, in decreeing the suit, the learned Civil Judge pointed out that the copy of the relevant Jamabandi proved the respondent's claim that he was the owner in the same so obvious that learned counsel pressed the petition only on the ground of waiver and the plea in this respect was that the respondent had taken part in the negotiations of the sale. But, the question whether he had done so or not was a question of fact. Secondly, the Civil Judge has stated in his judgment that the issue of waiver was not pressed by the petitioner. There is no averment in the memorandum of appeal in the first appellate Court that this statement by the Civil Judge was wrong or that finding thus given on the issue of waiver was wrong. Indeed to our surprise, we found that the memorandum of appeal in the first appellate Court does not even refer to the plea of waiver. Obviously, therefore, this plea was dropped in the trial Court and in the first appellate Court, and leave cannot be granted to examine it. But, according to learned counsel, the petitioner had developed the land, therefore, it would cause great hardship if he were evicted and he sought time till 28th February, 1981 to produce rulings in support of the contention that this Court gives leave to examine questions of fact even though they were not pressed at the appropriate stage. Although we have waited for almost another week, learned counsel has not cared to supply us any rulings in support of his contentions. Accordingly, we would only observe that it is not a fit case for the grant of special leave to examine pleas which was dropped in the Courts below.
The petition is without merit and is dismissed.
M.I. Petition dismissed.
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