BOSTAN Versus SAHIB SHAH ALI

ORDER

KARAM ELAHEE CHAUHAN, J.‑Respondent/plaintiff filed a suit for pre emption of the land described more fally in the relevant plaint. The suit was dismissed by the learned Civil Judge on 28‑2‑1968.

2. The respondent/plaintiff filed an appeal which also met the same fate and was dismissed by the learned Additional District Judge on 15‑I1‑1969.

3. The plaintiff/pre‑emptor then filed a further appeal being R. S. A. 551;0 which succeeded and was accepted by the High Court vide its judgment and decree dated 20‑5‑1979, whereby the judgments of the Courts below were set aside and the suit of the plaintiff/respondent was decreed as mentioned therein.

4. Thereafter, it appears that 9‑5‑1979 the petitioner/defendant/vendees filed a Review Application No. 64/79. Para. 2 of the High Court judgment in the review application in relevant and reads an follows :‑

"The review is sought on the main ground that during the pendency of the appeal, on 31‑1‑1977, respondent No. 1 Sahib Shah Ali applied to the Senior Civil Judge, Mardan, for the withdrawal of his preemption money which he had deposited during the trial of the suit thereby not disclosing the fact that the second appeal against the judgments and decrees of both the lower Courts is pending decision in the High Court and that as the money was not in deposit, the appeal of the pre‑emptor was liable to be dismissed under section 23 (5) (a) of the N: W. F. P. Pre‑emption Act, 1950. which is a mandatory provision of law."

The review application was dismissed by the High Court on 24‑5‑1980, as it found no force in the point above‑quoted.

5. The petitioner has come up in a petition for special leave to appeal against the aforesaid order of refusing to review, to this Court.

6. It is argued that the view of the High Court as contained in its order dated 24‑5‑1980 wherein it has been held that withdrawal of Zare Panjum during the pendency of the second appeal in the High Court (which Zare Panjum had been deposited during the pendency of the suit in the trial Court) was not fatal to the continuation or success of the appeal of the plaintiff‑respondent is not correct. For this proposition the learned counsel refers to Prem Singh v. Lakha Singh and others (1), Ismail and another v. Muhammad Aslam and 2 other (2) The learned judge on the other hand had preferred to rely on Sanwal Das v. Jalgo Mal and others (3) and Mt. Bibi Aisha v. Shadi Khan (4).

7. We do not feel that this is a fit case or occasion to resolve the abov controversy, and would as such, leave it open for consideration in some more proper and live case. We are of the view that as this point was no raised before the High Court during the course of the hearing of the Regular Second Appeal, therefore, it could not have been allowed to be raised o introduced through a review application, and was, from that point of view, beyond the scope of review, as envisaged in Order XLVII, rule 1, C. P. C. When confronted with this situation learned counsel submitted that as his client had no notice or knowledge of the aforesaid development or point at that time, therefore, he was well within his rights to raise it subsequently in review, because, it came to his notice after the decision of the R. S. A. The contention has no merit, as in our opinion, review jurisdiction is not intended to introduce such plea or pleas which if allowed to be raised, will enable a suitor to introduce what may be called at the most a "debatable point" or a "controversial point" of the kind and type involved harein on B which there are views of another High 1Court or High Courts, sometime different from and sometimes in line with, the High Court in which the anneal was heard and decided.

8. The result is that this is not a fit case for grant of special leave to appeal. The petition is consequently dismissed as such. ,, s. A. H. . . Petition dismissed.

(1) A I R 1929 Lab. 387 (2) P L D 1980 Lah,. 104

(3) A I R 1924 Lab. 68 (4) A I R 1935 Posh: :143