2018 PLP 1955 (MLD)

CH. MUHAMMAD IQBAL, J.

Through this review petition, the petitioners have challenged the order dated 03.09.2015 passed by this Court in Writ Petitions No.6707, 6708, 6709 and 6710 of 2011 on the ground of non-consideration of the document produced by the petitioners.

2. Learned counsel for the petitioners submitted that the documents filed by the petitioners were not considered by this Court while passing order dated 03.09.2015; the mutation in respect of land measuring 35-Kanals 08-Marlas was incorporated in the revenue record on the basis of fraud and forgery; that the order passed by learned Member, Board of Revenue which was set aside by this Court vide order dated 03.09.2015 was the just order; that the property was mortgaged with the bank and till its redemption no mutation can be passed; that all the facts have not been considered by the Court while passing the order dated 03.09.2015.

3. Heard. Record perused.

4. From the perusal of order dated 03.09.2015 passed by this Court, in Writ Petitions Nos.6707, 6708, 6709 and 6710 of 2011, the learned counsel for respondent No.2 was appeared and after hearing all the counsel of the parties, this Court passed the order dated 03.09.2015 and set aside the order dated 18.01.2011 of learned Member, Board of Revenue, Punjab. Whereas the orders passed by the Deputy District Officer (Revenue) and the Executive District Officer (Revenue), Pakpattan were upheld. In the said orders, the revenue hierarchy observed that present petitioners/respondent No.2 can avail the remedy before learned Civil Court. All the points raised by learned counsel for the parties were addressed/answered by this Court in the impugned order and under Section 114 read with Order XLVII, C.P.C., the following ingredients are required for review of any order or judgment. Order XLVII of C.P.C. is reproduced as under:-- "l. Application for review of Judgment.

(l) Any person considering himself aggrieved

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small causes, and who, from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistakes or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree of made the order. 2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when being respondent, he can present to the Appellate Court the case on which he applies for the review".

5. From the perusal of record, the petitioners sought review of order dated 03.09.2015 passed by this Court in Writ Petitions Nos.6707, 6708, 6709 and 6710 of 2011 in which all the pleas which have been raised by learned counsel for the petitioners were considered. Operative part of the order dated 03.09.2015 is as under:-- "

6. It is an admitted fact that mutations Nos.7743, 7409 and 8149 dated 14.11.2001, 10.1.2001 and 18.1.2003 respectively were duly sanctioned in favour of the petitioners. The copies of mutations appended with these writ petitions show that the said mutations were passed in open assembly in presence of the parties. Further respondent No.2 has not challenged the said mutations in question after expiry of long standing period consists of years. So, it can be said that the said respondent committed fraud with the petitioners and concealed the factum of mortgage of the land in question with the ZTBL. Anyhow, it is settled law that if a party raises/alleges allegation of fraud, then it has to prove the same by producing solid, cogent and confidence inspiring evidence and that too before the learned Civil Court which has the exclusive jurisdiction to adjudicate such type of question. Hence, the Deputy District Officer (Revenue) and Executive District Officer (Revenue), Pakpattan have rightly observed that if respondent No.2 alleged that fraud has been committed with him, then he can avail the remedy before the Civil Court. So far as the question of mortgaged of the property with the bank is concerned, it is settled law that charge, lien, mortgage or any encumbrance travels with the land and the transferee of the encumbered land steps into the shoes of the debtor but the Member (Judicial-I), Board of Revenue, Punjab, while passing the impugned order has not considered these aspects of the matter, as such, he has erred in law. Reliance is placed on the cases of "Chief Land Commissioner and another v. Maula Dad and others" (1978 SCMR 264) and "Nur Muhammad and another v. Imam Sain and 2 others" (1985 CLC 2256). Even otherwise, respondent No.2 has neither filed any reply to the writ petition nor counter affidavit to controvert the narration of facts and the grounds raised in the writ petitions, which deems to in admission on his part. In this regard, reliance is placed on the case of "Islamic Republic of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another v. Amjad Ali Mirza" (PLD 1977 SC 182).

7. In view of the above, the above titled writ petitions are accepted and the impugned order dated 18.1.2011 passed by the Member (Judicial-I), Board of Revenue, Punjab, is hereby set aside." It is settled principle of law that review petition is not competent where no any new and important matter or evidence has been discovered. Same is the position in the case in hand and there is no any mistake or error apparent on the face of the order sought to be reviewed has been pointed out. Reliance is placed on the case reported as Daewoo Corporation v. Zila Council, Jhang and 2 others (2004 SCMR 1213) which is as under:-- "

3. It is well-settled by now that "a review petition is not competent where neither any new and important matter or evidence has been discovered nor any mistake or error apparent on the face of the record. Such error may be an error of fact or of law but it must be self-evident and floating on surface and not requiring any elaborate discussion or process of ratiocination". Master Tahilram v. Lilaram 1970 SCMR 622, Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner 1968 SCMR 800, Rehmatullah v. Abdul Majid 1968 SCMR 838, Hassan Din v. Claims Commissioner, Lahore 1968 SCMR 1047(2), Qamar Din v. Maula Bakhsh 1968 SCMR 1042(1), Muhammad Akram v. State 1970 SCMR 418 and Nawab Bibi v. Hamida Begum 1968 SCMR

104. There is no cavil with the proposition that "if judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable notwithstanding error being apparent on the face of the record". Zulfikar Ali Bhutto v. State 1979 SCMR 427." In another case reported as Messrs Pakistan International Airlines Karachi v. Inayat Rasool (2004 SCMR 1737), the Hon'ble Supreme Court of Pakistan held that if all the grounds raised by the petitioner in support of review petition having already been discussed and decided on merits the cannot be allowed to be re-agitated and same is the position in this case. Relevant portion of above said judgment is reproduced as under:-- "The scope of the review is limited and always confined to the essential aspects of the case referred to at review stage which were not considered in the judgment but if the grounds taken in support of the petition were considered in the judgment and decided on merits, the same would not be available for review in the form of re-examination of the case on merits. The grounds urged by the learned counsel in support of this review petition, have already been discussed and decided on merits, therefore, the same would not be allowed to be re-agitated." According to operative part of the order dated 03.09.2015 reproduced above, this Court answered all the questions / grounds raised by learned counsel for the petitioners and passed order. Admittedly, scope of review is limited only to rectify the clerical or arithmetical error or mistake apparent on the face of the case and this Court cannot afford re-hearing or re-appreciation of the entire evidence afresh. Reliance is placed on the case reported as Mirza Tahir Hussain v. The State and another (2005 SCMR 330), relevant portion whereof is reproduced as under:-- "The scope of review is limited and it does not allow re-hearing, re-appraisal or appreciation of evidence afresh." In this case, the points already raised in the petition or argued by learned counsel have been considered by this Court, as such, same could not be re-agitated in review jurisdiction. Reliance is placed on the case reported as Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others (2007 SCMR 755), relevant portion whereof is reproduced as under:-- "

8. We having heard the learned counsel for the parties at length and perused the record with their assistance have found that the contentions raised by the learned counsel in support of this petition have been exhaustively dealt with in the judgment under review. This is settled law that the points already raised and considered before the Court, cannot be re-agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law. The learned counsel has not been able to point out any such error of law in the judgment or interference in the review jurisdiction." In another case reported as Majid Mahmood v. Muhammad Shafi (2008 SCMR 554), the Hon'ble Supreme Court held as under:-- "This is settled law that the case cannot be reopened on merits in review. Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other. Moreover any dispute which has already been resolved cannot be reviewed, even if the same has been resolved illegality." Reliance is also placed on the case of Sultan through L.Rs. and others v. Said Khan and another (2008 SCMR 562) in which the Hon'ble Supreme Court held as under:-- "

2. Ch. Mushtaq Ahmed Khan, learned Senior Advocate Supreme Court for the petitioners vehemently contended that this Court has not appreciated the real facts and circumstances of the case which resulted in miscarriage of justice. According to him Mr. Naghman Haider Zaidi, Advocate was neither engaged by the petitioners nor he was authorized to make any commitment before learned High Court.

3. Instead of pointing out any error or mistake on the face of record or ground constituting sufficient reason within the purview of review, learned counsel has re-agitated the pleas already dealt with by this Court in the impugned judgment. Scope of review is limited and does not permit rehearing of the matter afresh.

4. Thus, findings no ground for interference in the impugned judgment, the instant review petition is dismissed being devoid of any merit." In another case reported as Mirza Shahjehan Haider Gorgani v. Chairman, Federal Land Commission, Islamabad and others (2008 SCMR 575) in which the Hon'ble Supreme Court held as under:-- "

5. We find that although the grounds now agitated before us were available to the petitioner, when the petition was argued, yet as it is evident from the order under review the learned counsel for the petitioner did not raise the said contentions at the relevant point of time. Thus, the petitioner is now precluded from urging the contentions in review proceedings which were not argued at the time of hearing the petition for leave to appeal." Reliance is also placed on the case of Haji Muhammad Boota and others v. Member (Revenue) BOR and others (2010 SCMR 1049) in which the Hon'ble Supreme Court held as under:-- "All the arguments made today have been considered and decided in a comprehensive manner in the judgment impugned. In fact Mr. S. M. Zafar learned Senior Advocate Supreme Court and Mr. BaJar Munir, learned Advocate Supreme Court wanted re-examination and re-evaluation of the entire evidence once again which, we are afraid, cannot be done while dilating upon these review petitions. It is well-settled by now that review cannot be granted on the ground that certain facts require re-appraisement by Supreme Court. In this regard we are fortified by the dictum laid down in Basharat Khan v. The State 1984 SCMR 1033 (1) Zulfikar Ali Bhutto v. State PLD 1979 SC 741, Muhammad Nazir v. State 1979 SCMR 89, Kala Khan v. Misri Khan 1979 SCMR 347, Saghir Ali v. Mehr Din 1968 SCMR

729. There is no cavil to the proposition that review cannot be granted for merely re-examination of the same arguments. Rearguing a case on merits as well as additional grounds is beyond the scope of review petition." Further reliance is placed on the case of Ghulam Murtaza v. Abdul Salam Shah and others (2010 SCMR 1883) in which the Hon'ble Supreme Court held as under:-- "

5. It is well-settled proposition of law that every judgment pronounced by this Court is presumed to be considered solemn, and final decision on all points arising out of the case. If the court has taken a conscious and deliberate decision on a point of fact or law a review petition will not be competent. It is also settled principle of law that a "review petition" not competent where neither new and important evident error has been described nor any error apparent on the face of record. Such error may be error of question of law or fact but the condition precedent is that it must be self-evident floating on the surface and not requiring elaborate discussion or process of ratio cination. It is also settled proposition of law that the review is not meant for re-hearing of the matter. As mentioned above scope of the review is always very limited and confined to the basic aspect of the case referred to at review stage which was considered in judgment but if the grounds taken in support of the petition were considered in the judgment and decided on merits, the same would not be available for review in the form of re-examination of the case on merits. The aforesaid principles are supported by the following judgments of this Court:-- (i) Abdul Majeed's case (1980 SCMR 504) (ii) Mst. Kalsoom Malik's case (1996 SCMR 710) (iii) Noor Hassan Awan (2001 SCMR 367) (iv) Ayyaz Baig's case (2002 SCMR 380) (v) Daewoo Corporation's case (2004 SCMR 1213) (vi) Muhammad Afzal's case (2004 SCMR 1348) (vii) Messrs PIA's case (2004 SCMR 1737) (viii) Sh. Muhammad Amjad's case (PLD 2004 SC 32) (ix) Syed Wajihul Hassan Zaid's case (PLD 2004 SC 801)

6. In the interest of justice and fairplay we have re-examined the case keeping in view the aforesaid principles with regard to review of the judgment of the apex court under Article 188 of the Constitution. The learned counsel for the petitioner has failed to bring the case within the parameters prescribed by this Court in the aforesaid judgments. We do not find any infirmity or illegality in the impugned judgment, therefore, review petition has no force and the same is dismissed." Reliance is also placed on the case of Haji Muhammad Zaman Khan v. Member, Board of Revenue Punjab and others (2014 SCMR 164) in which the Hon'ble Supreme Court held as under:-- "

17. Petitioner's learned counsel worked hard and ably argued his case. But the arguments made in substance were an attempt to re-open the entire case which is not tenable in review jurisdiction. In Habib ul Haque alias Ajar v. Umer Gul through L.Rs. (2009 SCMR 335), this Court dismissed the review application as it found that"- "The petitioner cannot be allowed to reopen the case under the umbrella of review petition and his learned counsel cannot be permitted to reargue the case. Reference can be made to Mst. Kabir-un-Nisa and another v. Settlement Commissioner (Lands) Lahore and 3 others 1975 SCMR

493. This Court after taking into consideration every aspect of the case and taking conscious and deliberate decision on points of facts and law dismissed petitioner's civil petition. Neither there is any mistake or error apparent on the face of record nor discovery of a new and important matter or evidence, which is sine qua non for exercise of review jurisdiction of this Court. In this behalf reference can be made to Abdul Ghaffar Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363, Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865, Mst. Kalsoom Malik v. Assistant Commissioner 1996 SCMR 710 and Daewoo Corporation v. Zila Council Mang 2004 SCMR 1213." In view of above, this Court decided Writ Petitions Nos.6707, 6708, 6709 and 6710 of 2011 vide order dated 03.09.2015 on merits and answered all the grounds/objections raised by learned coun0sel for the petitioners and the instant review application is apparently amounts to re-open the matter or re-appreciation of evidence which is not warranted under the law. Learned counsel for the petitioners has not pointed out any discovery of new and important matter or evidence or any document, which has not been discussed at the time of passing of the impugned order by this Court.

6. In view of above, instant review petition is dismissed being devoid of any merits. ZC/M-121/L Review petition dismissed.