1. ' MUHAMMAD AFZAL ZULLAH, C.J.--Leave to appeal has been sought by the defendant in a suit for pre-emption; against the dismissal by the High Court, of his Regular Second Appeal.
2. ' The respondents/plaintiffs/pre-emptors filed a suit in respect of sale affirmed in a Court consent decree passed in petitioner's favour. The petitioner/ defendant raised various pleas including that of limitation and also relating to the effect of the Court decree, vis-a-vis, the respondents' right of pre-emption. The suit, however, was decreed. The petitioner's First Appeal and Second Appeals having been dismissed he has now sought leave to appeal.
3. ' There was two ways resistance from the petitioner's side to the respondents' claim for pre- emption. One, that the sale had been completed on 20th December, 1972 and not on 14-6-1973 when the declaratory decree was passed in his favour. The reason for this defence was that according to learned counsel for the petitioner the sales in the locality concerned were not pre- emptible till 2-3-1973, on which date a certain notification on earlier exemption was rescinded. If that would have been accepted, the present sale allegedly made in December, 1972 would not be pre-emptible. The second main defence was that even if the sale was completed on the date of the decree; namely, 14-6-1973, the suit having been filed after the period of one year from that date, was time-barred.
4. ' The learned Courts below have on facts held that the sale was completed on 14-6-1973 as certain formalities regarding completion would be deemed to have been fulfilled on the said date. Thus the sale being of that date and preemptible the respondents' suit was competent. Regarding limitation it was found on facts that the petitioner's action in obtaining the decree in the affirmation of the sale transaction was collusive and fraudulent act, therefore, by application of section 18 of the Limitation Act the respondents' suit was treated as within limitation.
5. ' Learned counsel for the petitioner has raised three contentions before us. One, that the declaratory decree by itself in petitioner's favour could not be treated as amounting to sale, therefore, the transaction was not pre-emptible. Secondly, and in the alternative that in case the sale was treated as completed without the Court decree, then it took place on 20-12-1972 on which date under the relevant law the sale was not pre-emptible in the locality concerned. And lastly, that in either case whether the sale took place on 20-12-1972 or on 14-6-1973, the suit was time- barred.
6. ' It is not one of those cases in which the plaintiff seeks specific performance. A decree passed as a result of that type of suit could be further examined so as to see: whether, the sale shall be treated as having taken place by the passing of the decree or on subsequent completion of formalities. In this case although the copy of the plaint has not been placed on record of this petition the learned counsel admitted that whether the sale is to be treated as completed on 20-12-1972 or on 14-6- 1973 the relief claimed was not that of specific performance. On the contrary the petitioner's plea was that the sale had been completed in every respect including the transfer of possession and it was only through the declaration that the affirmation of the completion of the sale was prayed for by the petitioner in the civil suit filed by him. Thus the first argument; namely, that the sale was not complete and thus not pre-emptible has no force.
7. ' The alternative argument also is without any force rather it is a contradictory plea and thus not admissible. Be that as it may, the 3 Courts below have held that althugh the claim of the petitioner was that the sale had been completed on 20th December, 1972, the evidence and the circumstances had established beyond doubt that in fact the sale was completed on 14-6-1973 on which date the decree was also passed in petitioner's favour. Accordingly, the latter being the date of the sale, on that day such a sale was pre-emptible, according to law then prevailing in the locality. Hence the second argument also fails. The third argument need not be discussed in detail.
8. There are definite findings of collusion and fraud against the petitioner. The respondents/plaintiffs had intentionally been kept in dark so as to save the transaction from a suit for pre-emption. For this and other reasons which prevailed with the learned lower Courts, we do not find any justification for interference with the findings of fact against the petitioner in this behalf. Otherwise too none of the findings of fact by the learned Courts below suffers from any infirmity of law or principle. Leave to appeal, therefore, is refused.
9. ' Before closing this order it needs to be clarified that in the facts and circumstances of this case it is on account of findings of fact by the learned lower Courts that the sale has been assumed by this Court to have taken place on the date of the decree passed in the suit for declaration seeking affirmation of the sale. Otherwise it will depend upon the circumstances of each case, whether a similar prayer with regard to a previous sale if granted by the Court decree would create a new transaction of sale, or would assume the date of decree as the date of affirmation of the sale or a previous date is affirmed; or, held to be the date of sale.
10. Order accordingly.
11. 1990 PLD Supreme Court 924 Present: Muhammad Afzal Zullah, C.J. and Abdul Qadeer Chaudhry, J MANZOOR HUSSAIN--Petitioner versus Mst. ZOHRA BIBI--Respondent Civil Review Petition No, 32-R of 1990, decided on 23rd May, 1990.
(a) Constitution of Pakistan (1973)--- ----Art.188---Supreme Court Rules, 1980, 0. XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1- --Review petition---Advocate who argued the appeal on behalf of the petitioner and who also drafted the petition for review and issued certificate was present in the Court but stated that he was not feeling well---Another Advocate on the instructions of ailing Advocate, was permitted by the Supreme Court, to argue the petition. [p. 925] A
(b) Constitution of Pakistan (1973)--- ----Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Review---Contention that following sentence in the judgment under review did not correctly represent the High Court's judgment under appeal before the Supreme Court: "Lot many things were either wrongly assumed or ignored and as held by the High Court it was a classic case of sacrifice of reason at the altar of good language"---Held, words and 'expression "it was a classic case of sacrifice of reason at the altar of good language" was the representation of what the High Court had "held" and not what it "said" in its judgment. It was pointed out that the following sentence in the judgment under review does not correctly represent the High Court's judgment under appeal before Supreme Court. "Lot many things were either wrongly assumed or ignored and as held by the High Court it was a classic case of sacrifice of reason at the altar of good language" Held, If the sentence quoted above or any part thereof was not an exact reproduction of any sentence used in the High Court judgment that did not mean that the High Court's findings were not to the effect as was stated in the above quotation.
12. This was supported by the analysis of the High Court judgment in this behalf as was apparent from the next following sentence which reads as follows:- The High Court duly pointed out the defects in that judgment and restored the trial Court judgment as it did not suffer from any such infirmity". Thus the words and expression; "it was a classic case of sacrifice of reason at the altar of good language", was the representation of what the High Court "held" and not what it "said" in its judgment; therefore, the argument of the petitioner being hypertechnical was of no help to him. [p. 925] B
(c) Constitution of Pakistan (1973)- ----Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1-- -Review can not be granted for merely reexamination of the same arguments. [p. 926] C Abid Hasan Minto, Senior Advocate Supreme Court, Sh. Attaullah Sajjad, Senior Advocate Supreme Court and Hamid Aslam Qureshi, Advocateon-Record for Petitioner.
13. M. Hanif Niazi, Advocate Supreme Court and Rana MA. Qadri, Advocate-on-Record (absent) for Respondent.
14. Date of hearing: 23rd May, 1990.
15. ' MUHAMMAD AFZAL ZULLAH, C J.--This petition seeks review of our Order dated 4-4-1990; whereby the petitioner's Civil Appeal No, 171 of 1982 was dismissed.
16. 'Sh. Atta Ullah Sajjad, Senior Advocate, who argued the said appeal on behalf of the petitioner and who also drafted the petition for review and issued the required certificate is present and states that he is not feeling well. Mr. Abid Hasan Minto on his instructions, who has been permitted by the Court, argued this petition.
17. ' Learned counsel to start with pointed out that the following sentence in the judgment under review does not correctly represent the High Court's judgment under appeal before this Court: "Lot many things were either wrongly assumed or ignored and as held by the High Court it was a classic case of sacrifice of reason at the altar of good language."
18. ' If the sentence quoted above or any part thereof is not an exact reproduction of any sentence used in the High Court judgment that does not mean that the High Court's findings are not to the effect as is stated in the above quotation. This is supported by the analysis of the High Court judgment in this behalf as is apparent from the next following sentence which reads as follows: "The High Court duly pointed out the defects in that judgment and restored the trial Court judgment as it did not suffer from any such infirmity."
19. ' Thus the words and expression; it was a classic case of sacrifice of reason at the altar of good language', is the representation of what the High Court "held" and not what it "said" in its judgment; therefore, the argument of the learned counsel for the petitioner being hypertechnical is of no help to him.
20. ' With regard to the remaining arguments of the learned counsel there is no need to reproduce them here because they are repitition of what Sh. Atta Ullah Sajjad had argued on 4th April, 1990 when the appeal was dismissed. The review cannot be granted for merely re-examination of the same arguments. Accordingly, this review petition is dismissed.