ABDUL QUDDUS BIHARI Versus MEMBER (LAND UTILIZATION), BOARD OF REVENUE, SINDH

ORDER

1. This is an application under Order 47, Rule 1, C.P.C. read with 151, C.P.C., seeking review of the order passed on 16‑1‑1992 by our learned brother Justice Syed Abdur Rehman Shah (as he then was) dismissing the petition. Since Justice Syed Abdur Rehman Shah has retired, by the order of the Acting Chief Justice this Review Petition was ordered to be heard by a Division Bench and today we have heard the learned counsel for the petitioner and the learned A.A.‑G. for the respondents. In the order dated 16‑1‑1992 it was observed that transfer of the property in dispute in favour of the petitioner (late Moulana Abdul Quddus Behari, through his L.‑Rs.) had been set aside by a judgment and decree passed by lInd Senior Civil Judge, Karachi dated 23‑12‑1979 and it was declared that one Sher Muhammad was entitled to transfer of the Chapra (meaning thereby the property in dispute). It was also observed that since the order of the transfer of property in favour of the petitioner dated 20‑8‑1975 was declared void and without legal authority by the judgment of the IInd Senior Civil Judge, Karachi, no merits were found in the petition and the same was dismissed. It was also observed in the order dated 16‑1‑1992 of this Court that in case Legal Heirs of the petitioners Moulana Abdul Quddus Behari were able to get the decree of the Lower Court set aside, they could again pray the High Court for the necessary relief. The learned counsel for the petitioner has argued that the Legal Heirs of the petitioner have now moved the trial Court for setting aside the judgment and decree dated 23‑12‑1979 passed by the IInd Senior Civil Judge, Karachi and they are apprehending that observation of the High Court in its order dated 16=1‑1992 might influence mind of the Trial Court. This observation is to the effect "it was declared that Sher Muhammad was entitled to transfer of the Chapra". Obviously these words in the order of High Court denote that such mention is made in the Order of the trial Court. The learned counsel for the petitioner has contended that this observation of the High Court in its order dated 16‑1‑1992 was a patent error apparent on the face of the record inasmuch as the judgment of IInd Senior Civil Judge, Karachi, dated 2~‑12‑1979, did not contain these words. On the contrary the judgment shows that the declaration to that effect in favour of Sher Muhammad could not be granted, and was refused. Learned counsel for the petitioner drew our attention to the operative part of the judgment dated 23‑12‑1979. The operative part of the judgment is reproduced as under:

2. "The defendants are called absent though served, therefore, on 16‑12‑1979 it was decided to proceed ex parte against them.

3. 'Since the plaint is on oath, therefore, contents of plaint are admitted as correct. The suit of plaintiff is decreed and it is declared that order of defendants Nos.2 and 3 in favour of defendant No.4, about the transfer of suit property is void, therefore, cancelled. Further, prayer of Mandatory Injunction, that the defendants Nos.2 and~3 be directed to transfer the said property to plaintiff is rejected since it is not warranted by any law."

4. Sher Muhammad was plaintiff and Moulana Abdul Quddus Behari was defendant No.4, while defendants Nos. 2 and 3 were officer of Settlement Department in the above‑quoted judgment.

5. Mandatory injunction was being sought by the plaintiff Sher Muhammad against the respondents Nos.2 and 3 for the transfer of the disputed property to him. The judgment shows that it was refused. However, in the order of this Court dated 16‑1‑1992 it was observed that the judgment dated 23‑12‑1979 of the IInd Senior Civil Judge, Karachi contended declaration to the effect that Sher Muhammad was entitled to transfer of the Chapra. Apparently the judgment of the trial Court does not contain such declaration. On the contrary the prayer for mandatory injunction for transfer of property in favour of Sher Muhammad was rejected. However, learned counsel for the respondents argued that the Review Application was not maintainable and, therefore, no relief could be given on this review application.

6. After hearing the learned counsel in detail and going through the record we have come to the conclusion that apparently there appears to be erroneous assumption of facts which has become clear on perusal of the record. The matter of declaration whether Sher Muhammad was entitled to the transfer of the Chapra i‑e. property in dispute was left open by the Court of Mid. Senior Civil Judge, Karachi by its judgment dated 23‑12‑1979 and in the judgment dated 16‑1‑1992 it was erroneous assumption that there was such declaration in the judgment that Sher Muhammad was found entitled to its transfer.

7. Therefore, we are clear in our minds that such erroneous assumption of fact is brought to the notice of the Court. Therefore, it needs rectification. We A are supported in this view of Courts by the decision of the case of M/s. M.‑Y Melim & Co. and 2 others v. M/s. Spendlours International, reported in 1995 SCMR page 922. Wherein, in similar circumstances the Supreme Court had allowed the review of its own order finding that the part of the judgment was based on erroneous assumption of facts. Consequently while keeping the order of this Court dated 16‑1‑1992 intact, we allow its review to the extent that the observation in this order to the extent" and it was declared that Sher Muhammad was entitled to transfer of the Chapra" is taken out and it may not be read as part of the said order. In the result the Review Application succeeds in part and it is allowed in‑the above terms with no order as to costs.

8. H.B.T./A‑16/K ??????????????????????????????????????????????????????????????????????????????????? ??????????????????????? Review application allowed