2016 PLP 1655 (CLC)

Allegedly, out of Triangle No.473 of 2015, Killa No.22 land comprising 3 kanals, 10 marlas was in the share of Malik Faqir Ahmad, father of respondents NoS.1 10 7, while land measuring 02 kanals 04 marlas fell in the share of Shams Din according to the Register Record of Rights 1964-65. The private respondents allegedly managed their entry in the revenue record germane to 3 kanals 10 marlas land in their name, which necessitated filing of application for correction of record before the Deputy Commissioner, Rahim Yar Khan, who called for the report form Addl. Deputy Commissioner (Consolidation) and corrected the record in accordance with law and land measuring 3 kanals 10 marlas falling in Killa No.22 was reverted to the name of petitioners, which was still existing in the record. Consolidation started in Chak No.51/NP and scheme No.68/196 in the name of petitioners was confirmed, while scheme No.87 was confirmed in the name of private respondents. The confirmation of the scheme took place on 21.03.1991, under section 10(3) of the Consolidation Act in the record of consolidation of land in the same village which also showed 2 kanals 4 marlas in the name of respondents as was done in the scheme No.87. The private respondents filed appeal before the respondent No.3 on 15.04.1991, which was dismissed on 08.08.1993 and same was entered in Roznamcha Waqiati, but in the meanwhile respondents filed a revision in the Court of Addl. Commissioner, which was accepted on 06.11.1994 and the present applicants approached the Board of Revenue through R.O.R. No.2889 of 1994, which concluded on 02.04.1998 in terms of Award dated 31.03.1998, according to which it was held that the landed property measuring 3 kanals 10 marlas in killa No.22 should be considered in the Wanda of Shams Din, etc. The petitioners filed a review application against order dated 31.03.1998, which was decided on 11.09.1999, which was assailed through W.P. No.4584 of 1999 and same was decided on 14.06.2011, through which order of learned Member Board of Revenue dated 11.09.1999 was sliced away, while order dated 02.04.1998 passed by learned MBR and order dated 06.11.1994 passed by Addl. Commissioner were left behind. Allegedly the order dated 11.09.1999 remained in field for about almost 11 years, therefore, the petitioners filed W.P. No.3448 of 2011 against the order dated 02.04.1998 and order dated 06.11.1994 ibid passed by respondent No.2, but it was observed that since this Court has restored the order of MBR dated 02.04.1998 and 06.11.1994, therefore same cannot be entertained; hence, this review application has been filed.

2. Learned counsel for the applicant has argued that the provisions of section 21, 23 and 26-A of the Arbitration Act, 1940 have been violated while issuing Award dated 31.03.1998. Submits that impugned order and award made by the arbitrator is in oblivion of the order passed by Deputy Commissioner, while even the judgment of correction against which no appeal ever has been filed, has attained finality. Contends that the Arbitrator has gone beyond the powers conferred upon him and split out the share of parties on Pakka road; hence, the judgment dated 14.06.2011 may be reviewed and order dated 02.04.1998 passed by Member Board of Revenue (Consolidation), Punjab Lahore and order dated 06.11.1994 passed by Addl. Commissioner (Consolidation), Bahawalpur Division, Bahawalpur may be set aside and private respondents may be directed not to interfere in the peaceful possession of the petitioners over the landed property measuring 3 kanals 10 marlas falling in Killa No.22 of Rectangle No.473/15. Relies on Muhammad Sadiq and others v. Ali Asghar Khan and others (1995 CLC 1529-Peshawar), Waheed Ahmad and others v. Additional Commissioner (Revenue)/ Settlement Commissioner, Rawalpindi Division, Rawalpindi and others (1990 CLC 220-Lahore) Jahanzeb Aziz Dar v. Messrs Maersk Line and others (PLD 2000 Karachi 258).

3. On the contrary, learned counsel for the respondents has argued that the scope of review is limited one and in review no fresh plea or pleas can be introduced and points not raised during hearing of Writ Petition No.4584 of 1999 decided on 14.06.2011, sought to be reviewed, cannot be raised through review application; hence, the review application is not competent and does not merit to acceptance. Relies on Haji Bostan v. Sahib Shah Ali and others (PLD 1982 Supreme Court 102), Sujanmal and others v. Kazi Abdul Hai and others (1993 SCMR 86), Qaimey alias Bhola v. The Settlement and Rehabilitation Commissioner, Bahawalpur Division, Bahawalpur and 3 others (PLD 1979 Lahore 535), Mst. Ghulam Fatima and others v. Sufi Ahmad Khan and others (1981 CLC 76), M. Moosa v. Muhammad and others (1975 SCMR 115); Khairati and 4 others v. Aleem-ud-Din and another (PLD 1973 Supreme Court 295), Haji Muhammad Boota and others v. Member, BOR and others (2010 SCMR 1049) Mst. Sharif Bibi and another v. Syed Muhammad Nawaz Shah and others (2008 SCMR 1702).

4. Heard.

5. First of all this Court has to see what is the scope of review? The principles upon which a review can be granted are well settled and elaborated i.e. there must be some new point based upon discovery of new evidence which could not with diligence, have been found out on the previous occasion. A review petition is not competent where neither any new and important matter or evidence has been discovered nor is any mistake or error apparent on the face of 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. Orders based on erroneous assumption of material facts, or without adverting to a provision of law, or a departure from undisputed construction of law and Constitution, may amount to error apparent on face of the record. On the other hand, error must not only be apparent but must also have a material bearing on the fate of the case and be not of inconsequential import. 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 record, the review petition is not competent and guideline in this regard can be sought from celebrated judgment reported as Haji Muhammad Boota and others v. Member (Revenue) BOR and others (2010 SCMR 1049). Here we cannot consider the vires of award issued by the Arbitrator or violation of certain provisions of The Arbitration Act, 1940, because in proceedings under 13 Arbitration Act, the provisions of Section 11 of the C.P.C. does not apply as held in PLD 2004 SC 752 and 1999 MLD

511. In review application no new horizon can be opened or the grounds which have not been urged at the time of hearing of the case cannot be allowed to be introduced or agitated at review stage, as stated above and held in many judgments of Apex Court of the country such as Shams Din and others v. Jalal Din and others (1982 SCMR 445), Haji Bostan v. Sahib Shah Ali and others (PLD 1982 Supreme Court 102); Qaimey alias Bhola v. The Settlement and Rehabilitation Commissioner, Bahawalpur Division, Bahawalpur and 3 others (PLD 1979 Lahore 535). In the judgment, sought to be reviewed, there is I no apparent error or any new point or evidence which was not considered or taken into account at the time of passing of order dated 14.06.2011; therefore, the instant review application does not come on the criterion and principles as discussed above and held by the Hon'ble Supreme Court of. Pakistan in the judgment ibid; therefore, the judgment sought to be reviewed being based on sound footing cannot be interfered and review cannot be granted for re-appraisement of certain facts or re-examination of same arguments or re-arguing/rehearing case on merits and additional grounds as held in Haji Muhammad Boota and others v. Member Review BOR and others (2010 SCMR 1049).

6. The case law relied upon by learned counsel for the applicant, with utmost respect, is entirely on different subject matter; therefore, same cannot render any assistance or help to the applicant's cause.

7. Pursuant to above discussion, we are not inclined to grant review application, being based on misconception and not maintainable; therefore, same stands dismissed. SL/S-42/L Application dismissed.