Islam ud Din vs Abdul Majeed

2014 M L D 155

[Peshawar]

Before Lal Jan Khattak, J

ISLAM UD DIN and 8 others---Petitioners

Versus

ABDUL MAJEED and 14 others---Respondents

Civil Miscellaneous Application No.107 of 2013 in Civil Revision Petition No.200 of 2006, decided on 1st July, 2013.

(a)Civil Procedure Code (V of 1908)---

---S. 114---Review---Scope---All points raised by the defendants in the review petition had been discussed in the judgment under review in the light of evidence---Petitioners had tried to re-open the entire case which they could not do keeping in view the very limited scope of review--- Counsel for the defendants had not pointed out any error or mistake in the judgment of the High Court which could justify its review---Review petition was dismissed in circumstances.

(b)Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII---Review---Scope---Review petition was to be entertained and decided to correct an error or mistake which was so apparent and resting on the surface of the judgment which being in contrast to a provision of law or was in total derogation to the evidence of the case---Review of a judgment necessitated correction of an error in a judgment which must be readily perceived and understood and which could cause injustice---Review could not be equated with re-hearing of a case.

Malik Muhammad Bashir for Petitioners.

Muhammad Ayaz Chaudhry for Respondents.

Date of hearing: 1st July, 2013.

JUDGMENT

LAL JAN KHATTAK, J.---Petitioners being aggrieved and dissatisfied with the judgment dated 5-4-2013 of this court delivered in Civil Revision Petition No.200 of 2006 have applied for review of the afore-referred judgment through the instant review petition.

2.Short facts of the case are that in consequence of partition of the sub-continent, predecessor-in-interest of the petitioners Imam Khan and respondent Abdul Hameed migrated to Pakistan from India where both the migrants had left their immoveable properties. In order to compensate them, the respondent-plaintiff was allotted landed property measuring about 61 kanals and 4 marlas against RL-II No.135 at Dera Ismail Khan while the predecessor-in-interest of the petitioners, namely, Imam Khan was allotted landed property measuring about 30 kanals and 7 marlas in district D.I.Khan against his claim vide RL-II No.134.

3.Respondent-plaintiff filed a declaratory suit against the petitioners that though his entitlement of 61 kanals and 4 marlas correctly figured in the relevant revenue record till 1961- 1962 but in the subsequent record of rights prepared during the settlement proceedings his entitlement was reduced from 61 kanals and 4 marlas to 43 kanals and 14 marlas and the said deficiency increased the entitlement of the predecessor-in-interest of the petitioners-defendants.

4.Suit of the respondent-plaintiff was hotly contested but was decreed as prayed for vide judgment and decree dated 17-7-2000 by the learned Civil Judge-III D.I.Khan which judgment and decree was affirmed by the learned appellate court in appeal vide judgment and decree dated 22-5-2006. Both the concurrent findings of the two Courts below were then impugned in Revision Petition No. 200 of 2006 before this court which was dismissed on 5-4-2013. The petitioners are now seeking review of the judgment dated 5-4-2013.

5.Malik Muhammad Bashir advocate, learned counsel for the review petitioners contended that the respondent-plaintiff has sold out his share in favour of Messrs Sardar Floor Mills which fact has escaped from the notice of this court while delivering the impugned judgment. The learned counsel further contended that there is non-reading of Exh.P.W.3/D-1, Exh.P.W.1/5 and Exh.P.W.1/1 respectively. He argued that non-appearance of the respondent-plaintiff, Abdul Majeed for deposition and provide opportunity of cross-examination to the petitioners- defendants is a ground for review of the judgment of this court as this aspect of the matter has not been considered by this court.

6.I have heard learned counsel for the review petitioners and gone through the judgment under review.

7.Admittedly a review petition is entertained and decided to correct an error or mistake which is so apparent and resting on the surface of the judgment which could be discerned with the naked eye being in contrast to a provision of law on the subject or is in total derogation to the evidence of the case. It is to be understood that review of a judgment always necessitates correction of an error in a judgment which must be readily perceived and understood and which could cause an injustice. Review cannot be equated with re-hearing of a case and a review petition will always be argued strictly within the para meter and scope of Order XLVII, C.P.C.

8.This court in its judgment review of which is being sought has held in para-7 as under:-- "P.W.1 has stated in his court statement that according to Exh.P.W.1/7, an area of 18 kanals and 9 marlas has come to Imam Khan, predecessor of the petitioners/defendants. From perusal of Exh.P.W.1/7, it reveals that an area of 18 kanals 9 marlas has wrongly conic to the share of the petitioners/defendants to which they are not entitled to claim."(emphasis supplied)

9.All the points raised by the learned counsel for the petitioners in the review petition have been discussed in the judgment dated 5-4-2013 in the light of case evidence particularly statement of P.W.1 and Exh.P.W.1/7. The learned counsel for the review-petitioners has tried to re-open the entire case which they cannot do keeping in view the very limited scope of review. He has not pointed out any error or mistake in the judgment of this court which is resting on the surface of the judgment which could justify its review.

10.For what has been discussed above, this court comes to the conclusion that the instant review petition is bereft of any merit and is thus dismissed.

AG/553/P Revision dismissed.