HUSSAIN vs ALLAH BAKHSH
This is a petition for review against the judgment of the Supreme Court of Pakistan dated 17th June, 1984. The petitioner sought review primarily on the ground that the court erroneously noted in its narration of facts that the original owner had redeemed the mortgage prior to alienation, whereas the actual position was that the equity of redemption had been sold, extinguishing the mortgage. The petitioner argued this inaccuracy might expose him to further litigation and affect his mortgagee rights. The petitioner also raised a new plea regarding the revocation of a gift under section 42 of the Transfer of Property Act. The Supreme Court held that since the pointed inaccuracy in the narration of facts was immaterial to the core decision determining the validity of the sale, it did not constitute an error apparent on the record warranting review. Furthermore, the court held that a new plea not raised during the main appeal or leave granting stage cannot be entertained in review. Consequently, the review petition was dismissed.
- Does an immaterial inaccuracy in the narration of facts in a judgment constitute an error apparent on the record for the purposes of review?
- Can a new plea not raised during the main appeal or leave granting stage be considered at the review stage?
- Does the dismissal of a sale affect the unadjudicated mortgagee rights of a party when no issue regarding them was raised and determined in the main judgment?
- Section 42, Transfer of Property Act
ORDER
ZAFFAR HUSSAIN MIRZA, J.--This is a petition for review of this Court's judgment, dated 17th June, 1984, in Civil Appeal No.223 of 1977.
2. The first grievance of the petitioner is that while narrating the facts in the judgment it has been observed that Ladha, the original owner, redeemed the mortgage in favour of the petitioner, before alienating the land in his favour. According to the learned counsel, this is not correct even according to the averments made in the plaint. The actual position according to the learned counsel was that the mortgage in favour of the petitioner was not redeemed by Ladha, but as the latter had sold the equity of redemption in his favour, the mortgage was extinguished. It was in order to bring this fact on the revenue record that Mutation No. 1517, dated 6th June, 1970 was attested.
3. Learned counsel concedes that this fact was not germane or relevant to the issue determined by the judgment in appeal. But according to him it is liable to expose the petitioner to further litigation.
On the sale being declared as invalid, the petitioner, according to the learned counsel cannot be deprived of his mortgagee's rights, which automatically would be restored with the disappearance of the sale in his favour.
4. Since the inaccuracy pointed out by the learned counsel in the narration of facts was not material for the decision of the appeal, it does not constitute an error apparent on the record so as to furnish ground for review. We may only clarify that the main judgment determined the question of the validity of sale made by Ladha in favour of the petitioner after he had already gifted his rights in favour of the respondent. No issue with regard to the mortgagee's rights of the plaintiff was raised and determined in the main judgment.
5. It was next argued that by virtue of section 42 of the Transfer of the Property Act, Ladha by transferring the land subsequent to the gift in favour of the respondent by way of sale must be deemed to have revoked the gift. This is an entirely new plea not taken at the time of main appeal nor noticed in the leave granting order, as such cannot be considered at the stage of review. In any case as the counsel conceded that this question can be resolved with reference to the delivery of possession under the gift, it is not a pure question of law which could not have been allowed even at the hearing of the main appeal.
6. In the result, with the aforesaid observations this review is dismissed.
Cited by 3 cases
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- PAKISTAN LAWYERS FORUM and otherss vs FEDERATION OF PAKISTAN and others 2004 PLD Lahore 145