2000 PLP 1891 (YLR)

Date of hearing: 24th April, 1998. MUHAMMAD YUNUS SURAKHVI, J.‑‑‑The petitioner has sought review for recalling our judgment titled Muhammad Anwar and another v.. Alain Din and others (Civil Appeal No. 7 of 1997 decided on 30‑10‑1997).

2. In the review petition various grounds have been raised but during the course of arguments only two points were stressed:‑‑‑ (i) That the affidavit mentioned in para. 9 of the judgment was a photostat copy and it was not admissible in evidence and could not have been taken into consideration by the Court, the error, thus, according to the learned counsel for the petitioner was on the face of record and a review of the judgment was justifiable; and (ii) that para. No.2 of the written statement filed by appellant (Muhammad Anwar in original appeal), has sufficiently been controverted by Alain Din, petitioner herein (respondent in the original writ petition), but this Court erroneously observed that the denial was evasive and non‑compliance of Rule 3, Order 8 of the Code of Civil Procedure may give rise to an inference as envisaged under Rule 5 of the said Order, i.e., if denial of an averment made in the plaint is not specific such point may be taken to have been admitted. Both these points agitated and argued by the learned counsel for the petitioner stand 4 already resolved in the judgment under review.

3. We have already observed that the affidavit filed by Alain Din, respondent, runs counter to the case set up by him in the writ petition. On the one hand the encroachment in the land in dispute was alleged by petitioner Muhammad Anwar himself but on the other in the affidavit it was alleged that the‑ said encroachment was made by Muhammad Rashid, his son‑in‑law, and the land encroached upon has been allotted to Muhammad Rashid on the basis of said encroachment. The objection of the learned counsel for the petitioner that photostat copy of the affidavit filed by Alain Din could not, have been relied upon but when he was confronted with the situation as to whether Alain Din, petitioner, herein, denies the filing of the affidavit or averments made in the affidavit, the learned counsel for the petitioner could not reply and explain the aforesaid situation.

4. The next point as to whether the denial made by the petitioner in the written statement amounted to an evasive denial or specific denial has already been dealt with and we have reached the conclusion that denial being evasive, the same may be taken to have been admitted the allegations made therein. In this view of the matter the point argued before us having been finally resolved one way or the other cannot be reopened as, the scope of review is very limited and it cannot be treated as an appeal so as to reopen' the points which stood already resolved. In this view of the matter finding no force in this review petition it is hereby dismissed with costs. H.B.T./52/SC(AJK) Petition dismissed.