1983CLC621 (PLP)

"In the instant case it also requires determination as to whether the learned Custodian was empowered to pass the order regarding the entitlement of Sardar Rehmat Ullah, deceased, in relation to the evacuee land. It may be stated here that Sardar Rehmat Ullah had never put forth the claim that he was either a local destitute, heir of a `Sbaheed' or otherwise entitled to the allotment of the evacuee land. Whether in such circumstances the learned Custodian was competent to pass the impugned order of retention of evacuee land by Sardar Rehmat Ullah as lessee or otherwise, and if the answer is in negative what would; .be the, position of such, an order requires thought. It is, no doubt, true that there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of the jurisdiction. Where there was jurisdiction to decide either rightly or wrongly; mere wrong decision does not render it without jurisdiction. In this case tie act by the Custodian was done wholly without jurisdiction and the law regards it as mere colourable exercise of jurisdiction or unlawful usurpation of the jurisdiction. The Custodian can only exercise the powers which vest in him under section 25 of the Administration of Evacuee Property Act, or under section 12 of the Pakistan Rehabilitation Act, 1956. The impugned order passed by the Custodian is not covered under any of these provisions of aforesaid law. Therefore, the order passed by the Custodian shall be considered as non-existent and is to be ignored wherever and whenever it is sought to be relied upon." It is manifest that the finding, recorded in the -aforementioned paras, is fatal for this review petition because it has been determined that even the basic order passed by the learned Custodian is wholly without jurisdiction and is to be ignored wherever and whenever it is sought to be relied upon. I asked Mr. B. A. Farooqi, the learned counsel for the petitioners, to convince me as to whether any right irrespective of the powers of the Additional Custodian to review the order of the Custodian had come to reside in the petitioners by virtue of the lease or the order of the Custodian. But he was quite understandably unable to convince me that any such right, whatsoever, on the basis of the lease, had come to stay in the petitioners. The lease, it requires no deep thought, creates no title for Sardar Rehmat Ullah (deceased) or his heirs over the evacuee lard under lease. Mr. B. A. Farooqi, however, contended that this question is beyond the scope of the review petition and ignoring this point, the review should be entertained only to consider as to whether the Additional Custodian had or had not the jurisdiction to review the order passed by the Custodian. The argument seems to be misconceived. The Additional Custodian, I have already formed the view, had powers to review the order passed by the Custodian but even otherwise I entertain the belief that Sardar Rehmat Ullah (deceased) or the petitioners have no right to hold the land; and as such whether the Additional Custodian had or had not the jurisdiction o to entertain the review petition loses all importance and remains only of academic interest and does not provide a ground for review.

9. The reading of the judgment, on the whole, would show that petition for leave to appeal was also disallowed on the ground that the objection relating to the jurisdiction of the Additional Custodian to hear the review petition cannot be agitated before this Court as the same was not agitated before the learned Additional Custodian. Reference may be made to para. 13 of the judgment under review. It reads: "It is significant that the petitioners' father had not only failed to raise any objection to the hearing of the review writ petitions but actually participated in their hearing on merits before the Additional Custodian and the learned Judge in the High Court. It is also important to note that before the High Court, in the writ petition, the petitioners did not even assert that they were unaware of the lack of jurisdiction of the Additional Custodian arid that for this reason they failed to object to the jurisdiction of the Additional Custodian to hear the review petition. The petitioners, therefore, knowing true legal position deliberately allowed the High Court to commit an illegality, if at all there is any (to me there is none). Had the petitioners been successful to non-suit the respondents in the review petition their interest in the land, whatever they had, would have remained intact and naturally they would not have questioned the allotment on account of this illegality." No doubt the judgment inadvertently states that this point was also not taken before the learned Single .fudge of the High Court though it was taken thereat. but this mistake would not affect the merits of the argument that the jurisdiction of the Additional Custodian to hear the review petition was not chalh;nged before him. This omission to raise the point before the Custodian was also considered fatal to the petition for leave to appeal and there is nothing to change my considered view. Besides, to permit a review on the ground of incorrectness of view would amount to grant the court the jurisdiction to hear appeals against its own judgment and that surely is not the scope of review jurisdiction. No mistake in the considered conclusion (as the case is before me), whatever the extent of that mistake may be, can be a ground for the exercise of review jurisdiction.

10. The petition is an effort to recanvass the points already raised and decided in the petition for leave to appeal. I am not prepared to re open the case to afford a rehearing to the learned counsel for the petitioners especially when no error much less an error on the face of the record is disclosed in the impugned judgment.

11. Apart from the above, the incorrectness of a view as said elsewhere (although there is none) had never been considered to be a valid ground for review petition. This view prevailed in Ghulam Fatima v. Settlement Commis sioner, Lahore (1969SCMR5). At page 6 it has been held: "A review cannot be granted merely because one party or the other to the litigation is not satisfied with the decision of this Court band considers that the matter should be reheard or reargued. A review is not a substitute for an appeal. Therefore, the mere dissatisfaction of a party to the litigation is no ground for review although it might have been a ground for an appeal if an appeal lay from a decision of this Court." Again in Feroze Din v. Allah Ditta (1969SCMR10), at page 12 it has been laid down: "A review is by its very nature not an appeal or a rehearing merely on the ground that one party or another conceives himself to be dissatisfied with the decision of this court." This view also finds favour in Muhammad Ghaffar v. The State (1969SCMR 12). At page 13 of the report it has been observed: "The only object of the review appears to be to get a rehearing of the petition. This is not the function of a review." The same view prevails in Mst. Ghulant Fatima v. The Settlement Commissioner, Lahore (1969 S C M R 247). At page 249 it has been laid down: "It is manifest, therefore, that all the points now sought to be raised by learned counsel were taken into consideration. If the petitioner is now dissatisfied with that decision, that cannot be a ground for review." Identical law is propounded in Haji Nawab Din v. Qazi Abu Saeed (1973 S C M R 143). Disallowing the point at page 144 it has been observed: "We are not impressed by this contention, because, it really amounts to challenging the correctness of the view taken by this court in the order now sought to be reviewed, and this cannot be a ground for review." This view was also accepted in Muhammad Zafarullah Khan v. Muhammad Khan and others (1975 S C M R 473). At page 476 of the report it has been held: "We have noticed these contentious but we do not propose, to deal with them as a review cannot be made a pretext for rearguing the whole case. We are not prepared to reopen the question of interpretation of section 104 of the National and Provincial Assemblies (Elections) Act, 1964." Same view prevailed in S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1978 S C M R 367). At page 372 it has been laid down: "But a judgment cannot be reviewed merely because a different view could have been taken. And further, even if we also assume that the petitioner's submission is correct, the contention that the impugned order was void and not voidable cannot be established without elaborate arguments. But as pointed out by us a review can lie only when the alleged error in the judgment is an evident error which can be established without elaborate arguments." ,I may refer to some case law' touching the point as to whether a ground not taken before a subordinate forum can be permitted to be taken in the Supreme Court. In Abdul Hamid v. Muhammad Ibrahim (1970 S C M R 89), at page 90 it has been held: "The point that the petitioner. and his brother did not apply for a joint transfer, was not raised before the Settlement authorities, although an opportunity for such a contention existed. We, therefore, do not see much substance in the objection raised now." In Natvab Khan and anolher v. Warris.Iqgbal and others (PLD1976SC394), at page 403 it has been observed: "No objection appears to have been taken at any stage of the proceedings in which the respondents fully participated. Feeling dissatisfied with this order they could not be permitted to turn round and question his jurisdiction." In fact all the elements of a review are lacking in the present case. There is, therefore, no substance in the contention of the learned counsel that this court had not taken the point, which he now seeks to agitate, into consideration. There must be a substantial or material effect to be produced upon the result of the case if, in the interests of `complete justice', the Supreme Court undertakes to exercise its extraordinary powers of review of one of its own considered judgments. If there be found material irregula rity, and yet there be no substantial injury consequent thereon (as the case is before me), the exercise of the power of review to alter the judgment would not necessarily be required. For the above-stated reasons, the review petition merits no consideration and stands rejected. The application for stay order automatically stands disallowed. K.M. A. Review petition rejected.