Law:

Section:

Constitution of Pakistan (1973)---Art. 185 (3) read with Civil Procedure Code (V of 1908), O. XLI, r. 27 Finding of first appellate Court not challenged before High Court nor petitioner mentioning in his petition his in fact having raised such plea at hearing and High Court having failed to advert to same ¬Petition for leave to appeal dismissed. JUDGMENT MUHAMMAD AKRAM, J. Muhammad Musa petitioner herein and Jamal Muhammad respondent No. 1 filed two rival suits in the trial Court for possession of the land in dispute by pre emption on the ground that they were co owners in the village. The proceedings in the two suits were consolidated and tried together. On the 13th of November 1975, the trial Court observed that respondent No. 1 had failed to produce the latest Jamabandi to establish that he was an owner of the estate on the date of the impugned sale and also found that he had failed to make up the deficiency in the court fee on the plaint within time and consequently rejected his plaint and dismissed the suit. The trial Court, however, decreed the suit of Muhammad Musa petitioner. On this respondent No. 1 went up in appeal against the order and decree passed by the trial Court. The Additional District Judge, Dera Ghazi Khan, allowed the requested of respondent No. 1 herein for permission to produce additional evidence in the form of the latest Jamabandi for the year 1973 74 in proof of his superior right to pre empt the sale and also observed that the trial Court had failed to issue any specific direction to him to deposit a specific amount of court fee by the given date and therefore, was not justified in applying the punitive provisions contained in rule 11, Order VII of the Code of Civil Procedure. In consequence in accepting the appeal of the respondent the lower appellate Court remanded the case to the trial Court for a fresh decision in accordance with the law. Muhammad Musa petitioner preferred an appeal against the order which was, however, dismissed in limine in Chambers by a learned Single Judge of the Lahore High Court at Lahore on the 1st of February 1978. He was of the opinion that the lower appellate Court was justified in allowing additional…

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