2010 PLP 301 (CLC)

Civil Miscellaneous No.2 of 2009 Let the main I.C.A. be taken up today. Main Case Briefly stated, the facts of the case are that the appellant is aggrieved of an order dated 4-9-2009 passed by a learned Single Judge of this Court. Through the impugned order, a review petition filed by the petitioner was dismissed.

2. The appellant is engaged in the business of installing and running mechanical gadgets for amusement of children. Respondent No.2 advertised auction of leasehold rights for one year for a play land situated in the Lahore Zoo. The appellant participated in the auction and offered the highest bid of Rs.21,50,

000. A letter of approval regarding acceptance of his bid was accordingly issued on 14-6-2008.

3. An agreement could not immediately be issued for various reasons. However, after some litigation, Work Order No.1290-A2 was issued in favour of the appellant on 30-9-2008 which was followed by an agreement dated 20-10-2008 between the respondent and the appellant.

4. It was clearly mentioned in the agreement that the contract was being awarded for play land/kiddy ride inside Lahore Zoo for the year 2008-2009 w.e.f. 1-10-2008 to 30-6-2009. It was also mentioned in the agreement that it was extendable for another year on payment of 25% extra amount over and above the contract money payable under the existing agreement for 2008-2009. The matter of extension was purely at the discretion of the Zoo Administration and no right was conferred on the contractor in this regard.

5. The appellant accepted the terms and conditions of the contract without protest, objection, cavil or demur at any stage. He ran his business at the leased premises for the entire term of the agreement, which expired, on 30-6-2009. On expiry: of the aforesaid term, he moved an application under clause 3 of the Agreement seeking extension of the Agreement for another year. He also offered to pay 25% extra as stipulated in the said clause:

6. His proposal was considered by the Zoo Maintenance Committee. It was decided not to continue activities in the play land/kiddy ride because these activities were causing harassment to the inhabitants of the Zoo and polluting its atmosphere. The appellant was accordingly informed and extension of the Agreement was declined.

7. The appellant filed writ petition No.13539/2009 before this Court. His stance was that he was entitled to extension of atleast three months because he was given a period of only nine months which was contrary to the terms mentioned in the advertisement that had appeared in the newspapers and the understanding given to him, on the basis of which he had submitted his bid. He also submitted that he had paid for a whole year but got only a month to run his business at the leased premises. He also claimed a right for extension of the Agreement for another year on the plea that he had invested substantial sums of money on installation of the gadgets and equipment. His offer to increase the lease money by 25% entitled him to such extension.

8. The writ petition did not succeed. The learned Single Judge inter alia held that after having agreed to the terms mentioned in the agreement as well as the work order, and having acted upon them, the petitioner was estopped from objecting to the same. Further, the appellant could not impose himself on the respondents who could not be forced to extend the agreement for another period, against the advice of the Zoo Maintenance Committee.

9. The order of the learned Single Judge was not assailed in appeal. However, subsequently a review petition was filed on 15-7-2009. The review petition was dismissed vide the order impugned before us.

10. The sole ground agitated in the review petition was that the appellant had been discriminated against. It was argued that in circumstances similar to that of the appellant lease agreements had been extended in favour of other similarly placed contractors including those in favour of contractors running a cafeteria and a simulator elephant.

11. The plea of alleged discrimination did not find favour with the learned Single Judge hearing the review petition. He held that the case of the appellant was not at par with that of the other contractors. The Zoo Committee had reported that the kiddy ride/play land was creating harassment for the inhabitants of the zoo and polluting the atmosphere of the Zoo. There was no such report regarding the other contractors. The learned Single Judge, therefore, proceeded to hold that the case of the appellant was distinguishable and no case of discrimination was made out.

12. Through this Intra Court Appeal, the orders dated 9-7-2009 passed in Writ Petition No.13539 of 2009 and 4-9-2009 passed in Review Petition No.90 of 2009 have been assailed. As observed earlier, the appellant did not challenge the order dated 9-7-2009. As such, the issue settled in the said order have attained finality and cannot be re-opened in these proceedings. The learned counsel appearing for the appellant has also confined his submissions to assail the order dated 4-9-2009 passed by the learned Single Judge in review.

13. In the first place, this appeal is barred by time. In his application under section 5 of the Limitation Act, the appellant has not given any sufficient cause for condonation of delay in filing this appeal. The only reason mentioned in the application is that the appellant was out of Lahore in connection with his business, therefore, could not file the appeal within time. This, we are afraid, hardly furnishes sufficient cause for condonation of delay. However, in the interest of justice, we have also heard the learned counsel for the appellant on merits.

14. The grounds urged by him are that the learned Single judge did not consider the high-handedness of the Government functionaries who received bid money for one year and allowed the appellant to work for only nine months. The only other ground pressed by him is that the petitioner was discriminated against by the respondents who extended the arguments of other similarly placed contactors but refused to extend his agreement.

15. As far as the first contention is concerned, it is an admitted fact that the contract and work order issued in favour of the appellant clearly mentioned that the agreement would commence w.e.f. 1-10-2008 and expire on 30-6-2009. The appellant not only accepted the terms and conditions of the agreement as well as the work order but acted upon them without objection for the entire term of the Agreement. Having accepted the terms, he cannot be allowed at this belated stage to turn around and take a diametrically different stance when his request for extension of-the tenure for another year has been turned down, on the basis of recommendations of an independent Zoo Advisory Committee. Even otherwise, there was no vested right of further extension, which as clearly stated in the agreement was solely at the option of the respondent.' The option to refuse extension was exercised for valid reasons.

16. The second contention of the appellant is equally ill founded. The appellant acquiesced in reduction of the tenure by accepting the work order and signing the agreement without objection. That was not all, he enjoyed the benefits of the lease for nine months and raised an objection only when his application for grant of extension of the lease for an additional year was turned down. The learned counsel has not succeeded in persuading us nor has he brought to our attention any material that may even remotely suggest discrimination, favouritism or high-handedness on the part of Government functionaries associated with this matter.

17. We do not find any error in the findings of the learned Single Judge to the effect that there was no discrimination, the case of the appellant was not at par with that of the other contractors and that his case was clearly distinguishable.

18. Even otherwise, review has a very limited scope. It may be exercised in the event of discovery of new matter of evidence, which, after exercise of due diligence was not within the knowledge of the appellant or could not be produced by him at the time when the order was made. It may also be exercised on account of some mistake or error apparent on the face of the record. Reference can usefully be made to PLD 1998 SC 363 and 2003 SCMR 1501.

19. The Honourable Supreme Court of Pakistan has consistently held that review proceedings cannot partake rehearing of a decided case. Existence of one or more of the conditions discussed above is sine qua non for exercise of power of review. A party cannot be permitted to convert a review petition into an appeal. Further, the main object of the power of review is to enable a Court to correct its own mistake or error, to prevent injustice. No such mistake or error in the order of the learned Single Judge was pointed out by the learned counsel for the appellant. In addition the learned counsel for the appellant has not been able to demonstrate existence of any of the grounds mentioned above that may have necessitated review of the original order dated 9-7-2009.

20. For the foregoing reasons, we do not find any merit in this appeal. It is accordingly dismissed in limine. M.U.Y./I-3/L Appeal dismissed.