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Civil Petition for Special Leave to Appeals Nos. 1094 and 1095 of 1985, decided on 8th April, 1986.
(From the judgment of the Lahore High Court, Lahore, dated 16‑11‑1985, passed in Civil Revisions Nos. 2159 and 2160 of 1985 respectively).
‑‑Art. 185(3)‑‑Punjab Pre‑emption Act (I of 1913), Ss. 4 & 15‑‑Civil Procedure Code (V of 1908), S. 11, cl. (b)‑‑Petition for leave to appeal‑ ‑Pre‑emption suit‑‑Two grounds, namely; lack of jurisdiction of Trial Court and improper appointment of guardian ad‑litem for minor defendants, ur6ed by petitioners‑defendants before High Court in its revisional jurisdiction, not raised before appellate Court‑‑Point of technical defect regarding appointment of guardian‑ad‑litem if raised before appellate Court same could have been removed‑‑Ground that suit had been filed initially before a Court having no jurisdiction, S.11, cl. (b), Civil Procedure Code, held, was a complete answer‑‑Point having not been raised before appellate Court chance for remedial measures, therefore, was lost on account of conduct of petitioner himself‑‑Leave to appeal refused.
C.A. Rahman, Advocate Supreme Court with Ch. Ghulam Mujtaba, Advocate‑on‑Record (absent) for Petitioners.
Bashir Ahmad Ansari, Advocate Supreme Court (In Civil Petition No. 1095 of 1985) with S. Inayat Hussain, Advocate‑on‑Record (absent) (In both Civil Petitions) for Respondent.
Leave to appeal has been sought in these two petitions from judgment, dated 16‑11‑1985 of the Lahore High Court; whereby two Civil Revisions arising out of two suits for pre‑emotion, were dismissed.
The respondent filed two pre‑emotion suits in the Court of Civil Judge, Second Class, who allegedly had no pecuniary jurisdiction to hear the same. However, they were transferred to the Civil Judge, First Class, (learned counsel does not know how and when) who ultimately dismissed the same. On appeals filed by the respondent, however, the suits were decreed by the District Court. The petitioners (defendants) then filed two Civil Revisions in the High Court which having been dismissed, they have now sought leave to appeal, on two grounds which were also urged before the High Court: One, that the suit having been filed initially before a Court which had no jurisdiction the decrees in favour of the respondent is a nullity; and secondly, that some of the defendants were minors whose guardian‑ad‑litem were not appointed properly. Learned counsel in the High Court dealt with both the points and, inter alia, observed that the pleas were not raised before the appellate Court, therefore, they were not fit points to be examined in revisional jurisdiction of the High Court. However, the learned Judge also made observations about the merits of the pleas.
We, after hearing the learned counsel, also do not find any force in any of the arguments of the learned counsel. It is not denied that the appointment of guardian‑ad‑litem did take place if there was any technical defect and had it been raised before the appellate Court it would have been removed.
On the second point section 11, clause (b) is a complete answer to the question raised by the learned counsel. Otherwise too, the same not having been raised before the appellate Court the chance for remedial measures has been lost on account of the conduct of the petitioners. It is not a fit case for grant of leave to appeal which accordingly is refused.
M. Y. H. Leave refused.
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