Law:

Section:

(a) Constitution of Pakistan (1973)----Art. 185 (3) Pre emption Leave to appeal granted to consider whether death of vendor in a pre emption appeal could result in its abatement. [Pre emption Abatement]. (b) Punjab Pre emption Act (I of 1913) ----S. 21 Vendor not necessary party in pre emption suit Failure to implead vendor as necessary party, held, not fatal to suit. Hira Lal v. Ramjas I L R 6 All. 57 ; Shiv Charan Singh v. The Secretary of State for India and another 1888 P R 80 ; Harbans Tiwari v. Tota Sahu and others I L R 32 All. 14 and Nasir v. Muhammad v. Fazal P L D 1965 Lah. 434 ref. (c) Constitution of Pakistan (1973) ---Art. 185(3) Point not specifically raised before High Court¬-Permitted to be raised at appeal stage by Supreme Court where High Court had not applied law correctly to case. JUDGMENT M. S. H. QURAISHI, J. This appeal by leave of the Court is directed against the order, dated 13 6 974 of a learned Single Judge of the Lahore High Court whereby the appellant's Regular Second Appeal No. 234 of 1962 was consigned to the record as having abated on his failure to have brought on record the legal representatives of Mst. Sharfan, the vendor in the case. 2. The second appeal before the High Court had arisen out of a suit instituted by M. Hussain, respondent No. 1, to pre empt the sale of a house made by Mst. Sharfan in favour of the appellant. On 13 6 1974 when that appeal came up for hearing, it was shown, by production of a copy of entry in the register of death, that Mst. Sharfan had died on 20 3 1972 and as no application had been made to implead her legal representatives, the impugned order was passed. The appellant then moved a petition before this Court whereupon leave was granted to consider whether the death of the vendor in a pre emption appeal could result in its abatement. 3. Learned counsel for the appellant contends that under Order XXII, rule 4, C. P. C. as then in force read with Article 177 of the Limitation Act, the second appeal could abate only if no application for impleading the legal representatives of the deceased had been moved within 90 days from the date of the death but that as before the expiry of this period the…

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