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Constitution of Pakistan (1973)--- Art. 185 read with Civil Procedure Code (V of 1908), S. 96­Appeal-Suit for pre-emption dismissed by trial Court on ground of waiver-Judgment of High Court setting aside finding of fact on ques­tion of waiver based on misreading of pleadings and evidence-Held, liable to be set aside by Supreme Court. JUDGMENT MUHAMMAD AFZAL ZULLAH, J -This appeal is directed against judgment and decree of the Lahore High Court dated 16-10-1978 whereby a first appeal filed by the respondent/plaintiff in a suit for pre-emption, was allowed, the judgment of the trial Court dismissing the suit on ground of waiver was set aside and the suit was decreed with usual conditions in matters of pre-emption. Respondent/pre-emptor is the son of Hussain Bakhsh, one of the vendors, other vendors are his close relations within first degree. He wanted to pre-empt the sale in question made in favour of the appellants on 11-7-1973 by his father and other relations, on the ground of relationship. Amongst other pleas, the appellants/defendants, in their written statement, set up waiver on the assertion that prior to the transaction of sale, the respondent had waived his right to pre-empt and thus was estopped from bringing the suit. The learned trial Court relying on the depositions of Ghulam Rasool (D.W. 1) one of the defendants and their witnesses, Sher Muhammad and Muhammad Anees (D.Ws. 2 and 3) came to the conclusion that the respondent had not only by his conduct but also through a positive representation made by him prior to the transaction of sale, bad lost the right to pre-empt the sale. On appeal by the respondent, the learned Judges of the High Court on reconsideration of merits of the plea came to the conclusion that the case set up in the defendant's written statement was totally different from that sought to be established at the trial, therefore, they could not be succeeded in non-suiting the respondent. Similarly, it was also concluded that the depositions of the defendants' witnesses (D. Ws. 2, 3 and 4) being directly in conflict with the case set up in the written statement, could not be relied upon. Accordingly, the trial Court judgment on a…

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