ABDUL HAKEEM and others vs KHLAID WAZIR

' SARDAR MUHAMMAD RAZA, J.-Khalid Wazir brought a suit of pre-emption against Mutations Nos 694, dated 27-8-1997 and 700, dated 28-10-1997 attested in favour of Abdul Hakeem etc., the vendees, on 22-11-1997 before learned Civil Judge, Banda Daud Shah. It was decreed on 19-9-1998 against which the appeal before learned District Judge, Karak and revision before a learned. Single Judge of Peshawar High Court failed on 12-9-2000 and 14-12-2001, respectively.

2. Abdul Hakeem etc., the vendees, brought a review petition against the judgment, dated 14-12- 2001 of the learned High Court which too, was dismissed on 9-9-2002 and hence C.P.L.A. 472-P of 2002 seeking leave to appeal. The decision in the original civil revision passed on 14-12-2001 is also challenged in C.P.L.A. 473-P of 2002. Both these petitions involving the same suit shall be disposed of through this single judgment.

3. So far as C.P.L.A. 473-P of 2002 is concerned, this having been filed against the original order, dated 14-12-2001 in revision petition, is hopelessly time-barred by 267 days. The accompanying application for condonation of delay does not contain any plausible or sufficient grounds warranting condonation. It appears that the very application for obtaining copy of judgment in original revision was filed after when the review was declined. C.P.L.A. No,473-P of 2002 is therefore dismissed as time-barred.

4. Coming to C.P.L.A. No,472 of 2002 filed against the judgment, dated 9-9-2002, it requires discussion at some length. The vendees claimed to be co-sharers and thus entitled to equal distribution of property under section 20 of the N.-W.F.P. Pre-emption Act, 1987, which is reproduced below:-- "20. Where the pre-emptor and vendee equally entitled.---Where the pre-emptor and the vendee fall within the same class of preemptors and have equal right of pre-emption, the property shall be shared by them equally."

' The Hon'ble Judge in Chambers declined to review the original judgment on the aforesaid plea, on the ground that this plea was not taken by the vendees in their written statement and hence no benefit can be derived therefrom. After having considered the matter and having heard the learned counsel on either side, we are of the view that the High Court has fallen into error by taking the view that it had taken. Section 20 of the N.-W.F.P. Pre-emption Act raises purely a legal question to the effect that if on the basis of evidence it is found by the Court that both, the pre-emptor and the vendee, fall within the same class of pre-emptors and have equal right of pre-emption, the Court will grant a decree in equal shares. In pre-emption suits the vendees, even if having a right superior to that of the pre-emptor, take a plea simply to the effect that the pre-emptor does not have a superior right of pre-emption. It remains for the Courts to determine as to where do the parties stand and what decision is ultimately to be given in the light of what has come before it in the shape of evidence.

5. The vendee is not bound to take a specific plea under section 20 of the N.-W.F.P. Pre-emption Act, 1987 because even if a vendee is proceeded ex parte and even if there is no written statement on record, the Court still is bound to grant decree in equal shares if ultimately it is found in evidence that both the parties belonged to the same class of preemptors. No doubt, being possessed of a superior right, equal right or no right is a question of fact but the consequence thereof is a question of law and hence a Court can grant or refuse a decree in the light of section 20 ibid and if the conditions thereof are duly fulfilled through the evidence on record. Had the implication of section 20 of the Act been the only question involved, the review was justified in law as well as in the interest of justice.

6. Next we revert to the second aspect of the review and see as to whether it was justified under the provisions of Order 47, C.P.C. Learned counsel for the respondent vehemently contested this point and alleged that the vendees, for the first time in the review petition have taken up the question of equal decree under section 20 of the Act. That they are now filing Jamabandi for the year 1997-98 in proof of their rights but the same could, with due diligence, have been filed before the trial Court, which it was not. Now that the trial Court, the Appellate Court and the Revisional Court have decreed the suit, the vendees cannot agitate the matter afresh, even if justified.

7. Learned counsel relied on Abdul Ghaffar v. Asghar Ali (PLD 1998 SC 363) and asserted that review under Order XLVII, Rule 1, C.P.C. Could be allowed only when some new and important matter or evidence has been discovered which, after exercise of due diligence, was not within his knowledge or could not be produced. However, that an order could be reviewed on account of some mistake or error apparent on the face of record. He went on to submit that the equality of the right of vendee, if at all, was or should have been in the knowledge of the vendee right from day one. That it should have been asserted before the Court of original jurisdiction, if not, before the First Appellate Court and at the most before the Court of revisional jurisdiction. Having not agitated this point before all the forums, the vendees cannot derive advantage through the process of review. Order 47, Rule 1 of the C.P.C. Clearly lays down that review proceedings cannot partake re-hearing of a decided case. Review also cannot be allowed on the ground of discovery of some new material if such material was available at the time of hearing of the trial, the appeal or the revision, as the case may be. A ground not urged or raised at such earlier stages cannot be allowed to be raised in review proceedings.

8. In the wake of the background aforesaid, we are of the view that the ground taken in the review petition has all along been available to the vendees right from the trial Court up to the Court of revisional jurisdiction. Having not been taken before any of such forums, particularly in the revision petition being last in the series, it cannot be made a ground for review. Resultantly, we are constrained on the second ground to dismiss the petition and to refuse grant of leave. Order accordingly.