2007 PLP 1392 (YLR)

SYED ASGHAR HAIDER, J.--Through this petition the petitioners have challenged the order dated 14-7-1988, passed by the District Judge, Kasur, dismissing the review petition filed by the predecessor of the petitioners.

2. Predecessor-in-interest of the petitioners was owner of two shops situated at Circular Road, Kasur, these shops were mortgaged by the' petitioners predecessor in favour of respondents. The petitioner filed a suit for redemption which was decreed, as a result of compromise, with a stipulation that the mortgage money would be deposited by 15-12-1958, in case of failure the suit would deem to have been dismissed. On 26-1-1964, the parties entered into a new agreement, and a new mortgage deed was .executed merging the previous deed into it, the right of redemption was made subject to payment of Rs.7,

500. The petitioners predecessor filed suit for redemption, which was dismissed holding that in view of the earlier decree dated 14-10-1958, the same is barred by principles of res judicata. The petitioners predecessor filed an appeal, the same was also dismissed, aggrieved thereof the petitioners' predecessor filed a review petition which too was dismissed, hence, the present petition.

3. Learned counsel for the petitioners contended that the provisions of res judicata were not applicable to the present proceedings, redemption in itself is a statutory right and can only be extinguished under section 60 of the Transfer of Property Act, the Courts concurrently failed to appreciate the law on the subject and committed an illegality, the previous mortgage was existing, therefore, after merger with a new mortgage a new cause of action accrued. Learned counsel for the respondent has defended the impugned order, and controverted the assertions, raised objection to the maintainability of review and this petition as well, including limitation and relied on the following precedents:-- (i) Abdul Hakeem and others v. Khalid Wazir (2003 SCMR 1501), (ii) Sultan Khan and 3 others v. Sultan Khan (2004 MLD 918), (iii) Abdul Ghafoor Khan v. Syed Tasawar Hussain Shah (1989 Law Notes (Lahore) (1343) (iv) Millat Tractors Ltd. v. Rahim Bakhsh (PLD 1995 Lahore 377), (v) Muhammad Bux v. Muhammad Ali (1984 SCMR 504), (vi) Mst. Shamero v. Sardaraz Khan and 8 others (PLD 2001 Peshawar 54), (vii) Muzaffar Ali V. Muhammad Shafi (PLD 1981 SC 94), (viii) S. A. Rizvi v. Pakistan Atomic Energy Commission and another (1986 SCMR 965), (ix) Mst. Majida Begum v. Sh. Zulfiqar Ali and another (198 CLC 309), (x) Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others (1983 CLC 621), (xi) Muhammad Khan v. Government of West Pakistan and others (PLD 1971 Baghdad-ul-Jadid 53), (xii) Abdul Kairm and 3 others v. Abdul Ghani and another (1988 CLC 409), (xiii) Chiragh-ud-Din v. Muhammad Ibrahim and others (1995 CLC 1632), (xiv) Faqir Muhammad Khan v. Mir Akbar Shah (PLD 1973 SC 110), (xv) Tikamdas and another v. Adbul Wall and others (PLD 1968 SC 241).

4. The petitioners have made grievance qua rejection of the application for review, the arguments addressed today as well as the grounds of the present petition reflect that submissions have been made on merits rather than addressing the real issue of maintainability. The primary point for adjudication, therefore, is whether the review application was rightly rejected or not. The grounds mentioned in the review application have adverted to the principle of res judicata and extinguishments of mortgage in terms of section 60 of the Transfer of Property Act, thus, the concise proposition qua maintainability of review is missing, the view taken by the lower appellate Court was that a mistaken view or error or incorrect exposition of law cannot be made a basis for review, therefore, it dismissed the review application.

5. The powers of review are enumerated in section 114 and Order XLVII, C.P.C., the yardstick and para?meters are clear, the petitioner bases his claim for review of the ground that the lower appellate Court failed to take note and effect of the law on the subject and, therefore, the judgment is erroneous. The remedy in these circumstances is clear, the petitioners should have knocked at the door of a higher forum. Order XLVII, rule 1, C.P.C. clearly stipulates that the powers of review can be exercised upon discovery of new and important matter of evidence, which after exercise of due diligence was not within the knowledge or could not be produced or on account of some mistake or error apparent on the face of record or for any sufficient reason in the circumstances enumerated above. No such compelling reason was made before the lower appellate Court, the solitary ground for seeking review as made out by the petitioners was that the lower appellate Court held a view contrary to the precedents cited, the assertion is incorrect. The lower appellate Court adverted to the parameters and requirements of res judicata, took into consideration the relevant material and circumstances and thereafter ruled against the petitioners, distinguishing the matter on merits. Incorrect or mistaken exposition of law is no ground for review, it is not the case of the petitioners that the lower appellate Court was not bestowed with jurisdiction in this respect, but the grievance is that it held a view contrary to the petitioner's view point. In the present matter the grounds for grant of review are conspicuously missing, therefore, there is no illegality in the impugned order. It is a settled principle of law that a Court or Tribunal bestowed with jurisdiction is competent to decide the matter rightly or wrongly. I am fortified in this context from the following precedents:- (i) Muhammad Hussain Munir and - others v. Sikandar and others (PLD 1974 SC 139) (ii) Secretary to the Government of the Punjab, Forest Department, Punjab Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 SC 415) On this benchmark no ground for review was made out, therefore, there is no illegality or material irregularity or jurisdictional error in the impugned order. Resultantly, this petition has no merits and is dismissed. No order as to costs. F.B./M-24/L??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.