ALAM DIN vs MAYOR, MUNICIPAL CORPORATION, MIRPUR and 4 others
This civil review petition was filed before the Supreme Court of Azad Jammu and Kashmir seeking the recall of an earlier judgment dated 30-10-1997. The petitioner raised two primary contentions: first, that the Court erroneously relied on a photostat copy of an affidavit which was inadmissible in evidence; and second, that the Court incorrectly concluded that the petitioner's denial in the written statement was evasive under the provisions of the Code of Civil Procedure. The core legal question was whether these grounds warranted a re-examination of the matter under the limited scope of review. The Supreme Court dismissed the review petition, holding that both points had already been thoroughly considered and resolved in the judgment under review, and that a review petition cannot be treated as an appeal to re-argue settled matters. The key principle laid down is that points already adjudicated upon cannot be reopened in review proceedings, as the scope of review is strictly confined to errors apparent on the face of the record and does not permit a rehearing of the case.
- Can a point already considered and resolved in a judgment be reopened through a review petition?
- Does a review petition permit the rehearing of a case in the manner of an appeal?
- What is the consequence of an evasive denial of an averment in a written statement under the Code of Civil Procedure?
- Rule 3, Code of Civil Procedure
- Rule 5, Code of Civil Procedure
ORDER
' MUHAMMAD YUNUS SURAKHVI, J.---The petitioner has sought review for recalling our judgment titled Muhammad Anwar and another v. Alam Din and others (Civil Appeal No, 7 of 1997 decided on 30-10-1997).
2. In the review petition various grounds have been raised but during the course of arguments only two points were stressed:---
(i) That the affidavit mentioned in para.9 of the judgment was a photo stat copy and it was not admissible in evidence and could not have been taken into consideration by the Court, the error, thus, according to the learned counsel for the petitioner was on the face of record and a review of the judgment was justifiable; and
(ii) that para. No,2 of the written statement filed by appellant (Muhammad Anwar in original appeal), has sufficiently been controverted by Alam Din, petitioner herein (respondent in the original writ petition), but this Court erroneously observed that the denial was evasive and non- compliance of Rule 3, Order 8 of the Code of Civil Procedure may give rise to an inference as envisaged under Rule 5 of the said Order, i,e,, if denial of an averment made in the plaint is not specific such point may be taken to have been admitted.
Both these points agitated and argued by the learned counsel for the petitioner stand already resolved in the judgment under review.
3. We have already observed that the affidavit filed by Alam Din, respondent,, runs counter to the case set up by him in the writ petition. On the one hand the encroachment in the land in dispute was alleged by petitioner Muhammad Anwar himself but on the other in the affidavit it was alleged that the said encroachment was made by Muhammad Rashid, his son-in-law, and the land encroached upon has been allotted to Muhammad Rashid on the basis of said encroachment. The objection of the learned counsel for the petitioner that photo stat copy of the affidavit filed by Alam Din could not have been relied upon but when he was confronted with the situation as to whether Alam Din, petitioner, herein, denies the filing of the affidavit or averments made in the affidavit, the learned counsel for the petitioner could not reply and explain the aforesaid situation.
4. The next point as to whether the denial made by the petitioner in the written statement amounted to an evasive denial or specific denial has already been dealt with and we have reached the conclusion that denial being evasive, the same may be taken to have been admitted the allegations made therein. In this view of the matter the point argued before us having been finally resolved one way or the other cannot be reopened as the scope of review is very limited and it cannot be treated as an appeal so as to reopen the points which stood already resolved.
' In this view of the matter finding no force in this review petition it is hereby dismissed with costs.
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