1. MUHAMMAD AFZAL ZULLAH, CJ.---Leave to appeal has been sought by a vendee in a pre-emption matter arising out of two Constitutional (Writ) Petitions; against the dismissal by the High Court of his writ petitions which had arisen out of the; acceptance by the Board of Revenue of respondent/plaintiff/pre-emptor's Civil Revisions.
2. It being a case relating to exercise of right of pre-emption under the M.L.R.115 on the ground of tenancy, the matter had gone to the Revenue forum rather than to the Civil Court. The respondents' suits were decreed. The price was also reduced from ostensible Rs.1,00,000 to the market value and fixed at Rs.48,000. The petitioner's, appeals, however, were allowed by the Additional Commissioner on the ground of short payment of court-fee which question was linked with the point of limitation and the respondents' suits were accordingly dismissed. In revisions filed by the respondents before the Board of Revenue the decision on court-fee, was reversed and without going into any other.
3. Question relating to the right market value of the property, the Board of Revenue restored the decree passed by the trial Court. The petitioner :hen moved two writ petitions in the High Court. On their dismissal he has now sought leave to appeal.
4. The same question as has been raised now; namely, that after the decision by the Board of Revenue on the question of court-fee the case should have been remanded to the lower forum for further examination of the other points--particularly that relating to market value, was advanced before the High Court but without any success. The learned Judge while dealing with this question remarked as follows:--- "A perusal of the appellate as also revisional judgments revealed that the writ petitioner had consciously abandoned all other points. If he did not feel the necessity of getting them decided by the learned Additional Commissioner, he should have urged those points before the Board of Revenue in his attempt to support the appellate order. The provisions of Order XLI rule 24, C.P.C.
5. Authorise a party to defend a judgment on points which may not have been decided by the lower Appellate Court. Since the indication was that the other points were abandoned, it was held in Allah Ditta v. Ghulam Haider and others 1988 SCMR 964 that once a point was given up at any stage of the proceedings, it could not be reopened subsequently. It was not the petitioner's case that he was not afforded an opportunity of being heard by the Board of Revenue and when he conceded to have availed of such an opportunity, the order passed in his presence was for all purposes."
6. Although the rule relied upon by the High Court with reference to the decision of this Court in the case of Allah Ditta can be regarded as a general one and exceptions can also be visualised, we heard the learned counsel to satisfy ourselves whether, this case would not be an exceptional one.
7. Accordingly, the order of the appellate forum having been perused it has been discovered that the petitioner had taken up only two points--one of court-fee and the other of partial pre-emption. The question relating to market value was not pressed even before the appellate forum. Not only this the order of the Board of Revenue has also indicated that while resisting the revisions filed from the respondent's side the petitioner did not urge any other point on the basis of which the case could be remanded for further examination.
8. Notwithstanding these clear indications from the record learned counsel still thought that the points might have been omitted in the judgments of the said two forums. The language used in the appellate order is so clear that if any other point would have been raised the same must have been noticed but it cannot be said about the revisional order by the Board of Revenue. We, accordingly, asked him to address arguments on the point which the appellant might have raised and the case could have been remanded. The learned counsel touched only the question of the reduction of value from ostensible one lac to the one prevailing in the market.
9. After heating him on this point also we are convinced that there was nothing for the appellant to urge either before the Board of Revenue or before the Additional Commissioner so as to seek modification of the verdict rendered by the trial forum on this issue. The remand would have been an absolutely futile exercise. Accordingly, in the fight of this discussion, and the additional aspects considered above, the High Court rightly refused to exercise its writ jurisdiction in this case. Leave to appeal, therefore, is refused.