Before Abdul Aziz, C. J, and Mahmood J.
GHULAM MUHAMMAD SHAH-Petitioner
FATEH MUHAMMAD SHAH-Respondent
Civil Application for a certificate to appeal to Judicial Com¬mittee, decided on 26th November, 1949.
(a) High Court (Baghdad-ul-Jadid) Constitution, cl. 9¬Court of Single Judge of High Court whether “immediately below” High Court-Civil Procedure Code, S. 110.
The position of a Single Judge of the High Court at Baghdad-ul-Jadid is different from the position of a Single Judge of the Lahore High Court. Where, therefore, a decree of a Single Judge had been affirmed by a decree of the High Court in Con¬stitutional Appeal, a certificate under section 110, Civil Proce¬dure Code could be granted only if the appeal involved a sub¬stantial question of law.
If the framers of the Letters Patent of the High Court at Baghdad-ul-Jadid had not their intention different from cl. 10 of the Letters Patent of the Lahore High Court, then the language in cl. 9 of the Constitution of High Court at Baghdad¬ul-Jadid would not have been different from the language of cl. 10 of the Letters Patent of the Lahore High Court [p. 3 ]
(b) Civil Procedure Code, S. 110-Question of existence of custom-Whether “substantial”.
Findings of the Court deciding the appeal were in the following terms: “Now the accumulative effect of all this discussion is that will by a widow governed by the customary law is voidable at the instance of the reversioners and if assented to by her next reversioners and relating to self-acquired property it becomes operative, the next reversioner who assents to such a will is therefore incompetent to challenge it by his own conduct when he survives the widow. After the death of the widow the re¬moter reversioner who derives his title through the next reversioner stands debarred from challenging the validity of the alie¬nation.” [pp. 3-4.]
Held, that the findings clearly lead to the conclusion that the point involved is not purely a point of fact but is evidently a point mixed of facts and law [p. 4.]
1917 P. C. 33 referred to.
1935 P. C. 71; 31 All. 457, & 32 All. 247, distinguished.
(c) Civil Procedure Code, S. 110-Ruling adopted by Court-Alleged by petitioner to have been wrongly applied to case -Question of law.
The petitioner in his grounds of appeal alleged that a cer¬tain ruling was wrongly applied to his case in deciding the con¬stitutional appeal against him
Held, that that itself was a question of law and that it could not be said that purely question of fact was involved in the case.
Mustafa Khan, for Petitioner.
Kaikaus, for Respondent.