FANOOS KHAN Versus ABDUL MUNAF
MUHAMMAD NAEEM ANWAR, J.---- This appeal is directed against the judgment and order dated 10.06.2010 of learned Additional District Judge-II, Swabi, whereby the review petition filed by respondents against the judgment and decree dated 17.05.2010 was allowed.
2. Facts, in brief, are that the predecessor of appellants Said Qurash has filed a suit for declaration that the property bearing khasra No. 5077 and 4360, measuring 08 kanals and 16 marlas, vide Jamabandi 1959-60, situated in the estate of Kalu Khan of Tehsil Swabi is his ownership in possession, status of which is still joint holding as the same is un-partitioned, thus, the respondents/ defendants without its partition and will of others cannot change its nature by making construction thereon. It was also prayed that they be permanently restrained from altering its nature and at last recovery of possession through legal partition was also sought.
3. After proper contest before the trial Court, ultimately, it was decreed to the extent of declaration and injunction and under the provisions of Order XX, Rule 12(1), C.P.C to the extent of recovery of possession through partition, preliminary decree was passed by the learned trial Court vide its judgment and decree dated 31.07.2007. The decree holders/appellants filed an application before the civil court, Swabi, for conversion of preliminary decree into final decree, through Civil Miscellaneous Application bearing No. 80/06, wherein the learned trial court/executing court has appointed a local commission with following terms of reference.
1. To ascertain nature of suit property,
2. To determine the possession of parties,
3. To measure the respective possessed area,
4. To draw site plan and
5. Propose mode of partition.
4. The local Commission visited the post and conducted the proceedings at the spot and submitted his detailed report, which was objected to by the respondents. Statement of local Commission was recorded as CW-1 and report of commission was marked as Exh.CW 1/1. After hearing both the parties, the learned executing court accepted the application of appellants, confirmed the commission's report, turned down objections of the respondents and, consequently, preliminary decree was converted into final decree, vide its judgment and order dated 31.07.2009. The said judgment and decree was assailed by the respondents before the appellate Court and after hearing both the parties, the learned appellate court has dismissed the appeal on 17.05.2010.
5. Thereafter, an application for review of judgment and decree dated 17.05.2010 was filed by the respondents by taking the plea that they are in possession of 04 kanals 03 marlas land while one Alamzeb son of Maltan is in possession of 08 marla and 06 sarsaies and that 07 marlas property included in the property of petitioners having a boundary wall whereas the local commission has wrongly suggested the decretal property to be separated. It was also added that judgment and decree is the result of clerical mistake and the property which is in their possession has been wrongly measured and calculated.
6. Being served with notice, the appellants put their appearance before the court and after hearing the parties, the learned Additional District Judge-II, Swabi, vide order dated 10.06.2010, accepted the review application, judgment and decree was set aside and the case was remanded to the learned trial court for appointment of fresh local commission hence, this appeal.
7. Learned counsel for appellants submitted written arguments whereby it was contended that the matter of hearing of appeal and review are totally different from each other. The former is the continuation of original proceedings, being the statutory right, confers the right of re-hearing the whole dispute where the entire case is reappraised whereas in the latter when an important matter or evidence is discovered which after the exercise of due diligence was not within the knowledge, or could not be produced by him at the time when decree or order was passed. In addition to above, when there is a mistake or error apparent on the face of record. According to him, while deciding the review application the learned lower court decided the same as if it was an appellate court and as such, travelled beyond its jurisdiction.
8. As against that, learned counsel for the respondents contended that while deciding the appeal the learned lower court has miscalculated the shares of the parties and as the report of commission was not according to the respective possession of the parties, thus, when vires of commission report was elaborated before the reviewing court the clerical and arithmetical mistake were came into the knowledge of the court, thus, the judgment and decree was rightly set aside and the matter was remitted to the learned trial court for appointment of fresh local commission is in the best interest of justice.
9. I have considered the arguments of the learned counsel for the parties and perused the record.
10. It appears from the record that vide order sheet No. 10 on 03.02.2009, the learned lower court has settled the terms of reference and appointed Mr. Ibrar Khan, Advocate, to visit the spot and to submit the report, who proceeded to the spot and submitted his detailed report. The learned lower court directed both the parties to submit their objection, if any, in response to which the respondents submitted their objection and then local commission was examined as CW-1 and his report was placed on record as Exh. CW 1/1. Learned local commission was cross-examined by the counsel for the respondents and, thereafter, the commission report was confirmed and final decree was passed against which the respondents filed appeal and in the memorandum of which at Paras Nos.4 and 5, it was asserted as such:-
When the appeal was dismissed, the review was filed wherein No.3 points and 4 are of worth perusal and reproduced as such.
"3. That, the 7 marlas plot included in the property of petitioners, having a boundary wall and the local commissioner has wrongly suggested the decretal property to be separated in the said plot, but in the impugned judgment it is incorrectly observed that the said plot is situated outside the land measuring 4 kanals 3 marlas.
4. That, there are some clerical mistakes in the impugned judgment regarding measurement/calculation of land in possession of the petitioners and on the basis of which appeal of the petitioners has wrongly been rejected which mistake needs correction."
11. Before dilating upon the question as to whether the appellate court was justified to set aside its own findings given in the judgment by exercising the powers of review, it would be advantageous to reproduce section 114, C.P.C. which is reproduced as under:-
"114. Review.-(1) Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, or from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit."
(2) Nothing contained in subsection (1) shall apply to a review of any judgment pronounced or order made by the Supreme Court.
The ibid section shall be read in juxtaposition with Order XLVII, Rule 1, C.P.C, which is reproduced as under:-
"Application for review of judgment.-(1) any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order."
12. Though, through review application the respondents intended to review of the judgment but on the points which were alien to the controversy as set forth since the settlement of terms of reference for the local commission i.e., 03.02.2009 till the filing of application for review i.e., 21.05.2010 what happened in between these dates. The local commission proceeded to the spot on 10.04.2009, submitted his report on 30.04.2009, the local commission was examined on 07.07.2009, arguments of the parties were heard on 16.07.2009, appeal was filed on 05.09.2009 and was decided on 17.05.2010, but for the first time it was contended that 07 marla plot included in the property of respondents, having a boundary wall and the local commission has wrongly suggested the decretal property to be separated in the said plot, whereas the other points that respondents are in possession of 04 kanals 03 marlas and the same plea was taken in the objection application, none of the above fall within the parameters of review. The review is permissible only when some mistake or error, apparent on the face of record but when the point already raised and considered by the court could not be re-agitated in review jurisdiction. Similarly, a point which never remained the controversy cannot for the first time be placed before the court for reviewing the judgment or order. To that extent the respondents were stopped by their own conduct when they acquiesced by raising the very plea at proper time in due cause. By invoking the review jurisdiction, one cannot make a new case before the court and, similarly, the court would not sit as that court of appeal against his own judgment. Wisdom is drawn from the case law Haji Muhammad Botta and others v. Member (Revenue) BOR and others (PLD 2010 SC 1049) wherein it has been held that:-
"The principles upon which a review can be granted are well settled i.e., there must be some new point based upon discovery of new evidence which could not with diligence, have been found out on the previous occasion. A review petition is not competent where neither any new and important matter or evidence has been discovered nor is any mistake or error apparent on the face of the record. Such error may be an error of fact or of law but it must be self evident and floating on surface and not requiring any elaborate discussion or process of ratiocination. Orders based on erroneous assumption of material facts, or without adverting to a provision of law, or a departure from undisputed construction of law and constitution, may, amount to error apparent on face of the record. Error, on the other hand, must not only be apparent but must also have material bearing on fate of case and be not of inconsequential import. If judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable notwithstanding error being apparent on the face of the record. Where order under reviews did not appear to have been vitiated by any error on face of the record nor any other good and sufficient reason was given for review of order. Petition for review was dismissed. "Nawab Bibi v. Hamida Begum 1968 SCMR 104, Master Tahilram v. Lilaram 1970 SCMR 622, Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner Pakistan 1969 SCMR 800, Rehmatullah v. Abdul Majid 1968 SCMR 838, Hassan Din v. Claims Commissioner 1969 SCMR 1047 (2), Qamar Din v. Maula Bakhsh 1968 SCMR 1042 (1), Muhammad Akram v. State 1970 SCMR 418, Muhammad Akram v. State 1970 PCr.LJ 909, Zulfikar Ali Bhutto v. The State 1979 SCMR 427, Rizwan Co-operative Society Ltd. Custodian of Evacuee Property 1978 SCMR 449, Farzand Ali v. Muhammad Arif 1979 SCMR 281, Rashiduddin Qureshi v. State 1979 SCMR 99."
13. It was also pleaded by the respondents in their review application that the impugned judgment is not in accordance with law. To this extent the ambit and parameters of review has been settled by the apex court in case titled Mehmood Hussain Lark and others v. Muslim Commercial Bank limited and others (2010 SCMR 1036), wherein it has been observed that:-
"We have given due consideration to the arguments advanced by the petitioners in person, gone through the judgment sought to be reviewed. We are of the view that before an error can be a ground of review, it is necessary, that it must be one which is apparent on the face of the record and that it must be so manifest, so clear, that no court could permit such an error to remain on record. Incorrectness of a conclusion arrived at after a conscious perusal of record and in depth examination of evidence cannot be made a ground for review because to permit a review on the ground of incorrectness would amount to granting the court jurisdiction of re-hearing appeals against its own judgment."
Reliance can also be placed on the case law reported as PLD 2004 SC 801, 2007 SCMR 755, PLD 1991 SC 905, 2003 MLD 02 and PLD 2005 K 327.
14. The learned lower court while hearing the review application has reappraised the entire record and scanned the record in such a manner as a court of appeal, as such, travelled beyond the scope of review as provided under section 114 read with Order XLVII, Rule 1, C.P.C in juxtaposition with the interpretation as made by the august apex court and principles enunciated in the above referred cases. As such, the learned lower court has committed an illegality therefore, this appeal is accepted, judgment impugned herein dated 10.06.2010 is hereby set aside, resultantly, the judgment and decree dated 17.5.2010 is restored.
ZC/114/P Appeal allowed.