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Civil Petition No. 753 of 1980, decided on 23rd November,1985.
(On appeal from the judgment dated 22‑3‑1980 of the Lahore High Court in R.S.A. No. 376 of 1972).
‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S.100‑‑Evidence Act (I of 1872), S.115‑‑Second appeal‑‑Admitted facts‑‑Inferences arising from admitted facts does amount to question of law in certain cases‑ Question whether facts of case could be said to constitute waiver of a right, in circumstances, held, would not merely a question of fact and could be examined in second appeal.
Shahid Hussain Kadri, Advocate Supreme Court and M. Aslam, Advocate‑on‑Record for Petitioner.
Abid Nawaz, Advocate‑on‑Record for Respondent.
Date of hearing: 23rd November, 1985.
The question involved in this case was whether the petitioner, who was a pre‑emptor, could be considered to have abandoned his right, through waiver
The learned Judge in the High Court very carefully considered this aspect of the matter and after discussing the entire evidence on the record reached the conclusion that the circumstances of the case "amply support an inference of waiver against the respondent" (before it and petitioner herein). He, accordingly, dismissed the pre‑emptor's suit.
This petition is directed against the said order of the High Court.
Mr. Shahid Hussain Kadri, learned counsel for they petitioner, has submitted that a finding of fact recorded by the Additional District Judge was reversed by the High Court in this case and that this was not possible in a second appeal.
This submission is based on a misconception. The learned Judge has based his impugned finding on the basis of admitted facts. The inference arising from the admitted facts does, in certain cases, amount to a question of law. Thus, the question whether the admitted facts in this case could be said to constitute waiver of a right. In the circumstances, is not merely a question of fact and could have been examined in a second appeal dismissed.
M . Y . H . Petition dismissed.
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