2011 PLP 1278 (CLC)

MUZAFFAR ALI, J.

The instant matter reached before this Court for the 3rd time. On the first occasion the case was remanded back to the referee Court with direction to submit amended Petition and on second the matter was referred to the Referee Court for giving fresh decision. The impugned judgment/decree is the third with the facts as under:

?????? In the year 1987, the present respondents proposed to construct link road at Village Kamango Kharmang and acquired the lands of the petitioners and passed the Award No.DK-1(3)/87 on 4-10-1987, the petitioners assailed the award under section 18 of the Land Acquisition Act (1994) (hereinafter referred to the Act) and claimed enhancement of the awarded amount with the contention that, the collector land acquisition (hereinafter referred to the Collector) has violated mandatory provisions of the Act and has not issued notices under the relevant provisions and has fixed the arbitrary rates of the acquired lands at the back of the owners and also has violated section 23 of the Act. ?????? The Referee Court after receiving the petition from the Collector, followed the procedure and the respondents were given chance to defend. The impugned judgment/decree is third and the learned referee Court has dismissed the petition under section 18 of the Act. We intended to go into the merits of the impugned judgment/decree leaving aside the past orders either of this court or the orders passed by the referee court. In the impugned judgment the learned referee court also discussed the Issues Nos.2 and 4 thoroughly. The onus probandi of Issue No.2 is on the respondent while the Issue No.4 is to prove by the petitioners. The learned referee Court has held that the respondent No.1 (the Collector) did not follow the procedure provided by the Act before passing the impugned award and the same point has also been admitted by the respondent No.1. ?????? Perusal of record also transpires that, the respondents have neither submitted any notice served on the petitioner nor the respondents have submitted any record, perusal of which would be facilitative to believe that, the Collector properly followed guidelines provided under section 23 of the Act at the time when the rates of the acquired land were fixed. The Collector fixed the rates silently without publishing notification in the official gazette and issuing public notice u/s 4 of the Act to enable the affected persons to meet the situation, but the travesty of the learned referee court from his own view makes us astonish that at the end he decides the issue in negative holding an ironical view that the impugned award once passed even in violation of mandatory provisions of law, cannot be set aside. ?????? The learned referee court has ignored or failed to understand the intermix legal consequences of both the issues that, initially the burden lies on the Collector to prove that, he has taken all mandatory steps like notice under section 4, hearing of objection under section 5-A after publication of notification under section 4 of the Act, notice under section 9, enquiry and award under section 11 and to issue immediate notice to the interested persons under section 12(2) of the Act to make the award final and conclusive evidence if the same is challenged under section 18 of the Act. The Collector is also bound to bring the entire record before the court with the help of which he fixed the market value of the lands acquired. The Collector is also to prove that, he followed the guidelines under section 23 of the Act at the time of passing the award and once the Collector appears before the referee court with the prima facie proof of the above stated legal burden then the petitioners are to prove that, how the Collector has either ignored the market value of the land acquired and how he passed the impugned award arbitrarily without complying the guidelines of the section 23 of the Act. ?????? In the case in hand, the respondents, particularly the Collector has failed to bring into record of the case the prima facie proof, rather he has admitted through his representative and the official wittiness that, he has not complied any mandatory provision of the Act and has submitted no record by perusal of the same it can be held that he fixed the rates of the acquired lands keeping in view the guidelines provided by section 23 of the Act. In such-like situation, there was no option to the referee court but to rely on the evidence adduced and submitted by the petitioners with the prayer to enhance the rates fixed by the Collector. In the impugned award, as the Collector himself has conceded that he had not followed the mandatory provisions of the Act and had adopted arbitrary proceedings in making the award. ?????? The upshot of the above discussion is that the impugned Judgment/decree is set aside the impugned award is enhanced as prayed for in the petition under section 18 of the Act with 15% compulsory charges and 8% of compound interest till realization of the enhanced amount. No orders as to costs. H.B.T./73/GB????????????????????????????????????????????????????????????????????????????????????? Appeal allowed. 2011 C L C 1281 [Peshawar] Before Attaullah Khan, J DILWAR KHAN and 2 others

Petitioners Versus Mst. MEHAR-UN-NISSA and 8 others

Respondents Civil Review Petition No.285 with C.M. No.286 of 2010, decided on 25th April, 2011. (a) Civil Procedure Code (V of 1908)

S. 114 & O.XLVII, R.1

Specific Relief Act (I of 1877), Ss.8 &? 54

Review

Scope

Both the Trial Court and lower Appellate Court had concurrently dismissed suit for possession and injunction

Review of the judgment passed in revision had been sought on three grounds; firstly that both the courts below had wrongly assumed the jurisdiction; secondly, the court could review its judgment on the grounds available in O.XLVII, R.1 of C.P.C., and thirdly that the local commission had not inspected the spot nor made any measurement of the property

Ground that two courts below had no jurisdiction was available with the petitioner , even at the time of filing revision before the High Court and it remained available till the decision of the petition

Such was not a hidden fact and was within the knowledge of the petitioner

No jurisdictional error thus existed in the judgments/decrees of both the courts below and said point could not be agitated in review at such belated stage

Ground relating to O.XLVII, R.1, C.P.C., which included the discovery of new fact, was not in the knowledge of the petitioner at the time of announcement of judgment nor was a mistake apparent on the face of record

Such point could not be examined in review

Ground about the non-inspection and measurement of the suit property by two local commissioners, related to merits and, if it was considered and allowed, same would amount to re-opening of the case which was not permissible

Party seeking review could not be allowed to convert the review petition into appeal

No appraisal of evidence and re-opening of the case were permitted in review

Record was also not allowed to be reappraised

All facts stated by the petitioner related to the merits and if allowed same would amount to re-opening of the case already decided by competent forum and would amount to converting the review petition into appeal

High Court in the impugned order had already dealt with the grounds agitated in review and gave its decision in comprehensive manner

Petitioner had failed to establish any mistake on record or discovery of new fact not available at the time of judgment; or any other ground recognized by O.XLVII, R.1, C.P.C., petition for review was dismissed. ?????? Abdul Hakeem, and others v. Khlaid Wazir 2003? SCMR 1501; Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 and Haji Muhammad Boota and others v. Member (Revenue) BOR and others 2010 SCMR 1049? ref. (b) Civil Procedure Code (V of 1908)

S. ?114? &? O.XLVII,? R.1

Review

Practice? and? procedure

Scope

Petitioner could agitate the grounds which pertained to the mistake or error on the face of record; or discovery of any new facts which was not available at the time of order; or any ground/reason available in terms of O.XLVII, R.1 of C.P.C.

Scope of review, otherwise was very limited

Power of review could be exercised in the event of discovery of new matter which was not within the knowledge of the petitioner or could not be produced by him at the time of making order; or if there was any mistake apparent on the face of record

Petitioner had failed to establish any mistake on record or discovery of new fact not available at the time of judgment; or any other ground recognized by O.XLVII, R.1, C.P.C.

Review petition was dismissed, in circumstances.?? ?????? Asghar Ali Khan for Petitioners. ?????? Muhammad Waheed Anjum for Respondents. ?????? Date of hearing: 25th April, 2011. JUDGMENT ATTAULLAH KHAN, J.

This review petition has been filed by the petitioner for reviewing the order of this Court dated 18-10-2010, vide which his revision petition was dismissed being without merit. 2.??? Precisely facts are that a suit was filed in the trial Court by the respondent/plaintiff for possession and permanent injunction against the petitioner/defendant, which was decreed vide judgment/decree dated?? 26-1-2003. The respondent/defendant filed an appeal before the appellate Court, which was also dismissed and the impugned judgment/ decree? of? the? trial? Court? was? maintained vide judgment/decree, dated 21-5-2005. Subsequently both the judgments/decrees were impugned through Revision Petition No.174 of 2005 before this Court and after hearing arguments, it was dismissed on 18-10-2010. Now through the review petition in hand the petitioner has prayed for review of the above mentioned judgment of this Court. 3.??? Learned counsel for the petitioner submitted that this Court vide judgment dated 18-10-2010 dismissed the revision petition of the petitioner which needs review on the ground that both the lower Courts wrongly assumed the jurisdiction, court may review its judgment on the grounds available in Order XLVII, Rule 1 of C.P.C. and 3rdly the local commission has not inspected the spot nor made any measurement of the property and he requested that on this count the order of this Court may be reviewed. 4.??? Learned counsel for respondent on the contrary submitted that 3rd ground agitated by learned counsel for petitioner for review cannot be considered because if it is accepted it would reopen the case which is not allowed under Order XLVII, Rule 1 of C.P.C. 5.??? Keeping in view the above arguments and record it is to be examined that the grounds agitated by learned counsel for the petitioner for the purpose of reviewing the order of this Court are within the scope of Order XLVII, Rule 1 of C.P.C. or not. The normal practice and procedure is that for review, it is necessary for the petitioner to agitate the grounds which pertains to the mistake or error on the face of record or discovery of any new facts which was not available at the time of order or any ground/reason available in terms of Order XLVII, Rule 1 of C.P.C. The scope of review otherwise is very limited. It may be exercised in the even of discovery of new matter which was not within the knowledge of the petitioner or could rot be produced by him at the time of making order or if there is any mistake apparent on the face of record. 6.??? I have to see whether the three grounds agitated by learned counsel for the petitioner in his arguments as well as in his review petition are within the scope of the review or not. The first ground is that two Courts below have no jurisdiction. This point was available even at the time of filing revision petition before this court and remained available till the decision of the petition. It was not a hidden fact and was within the knowledge of the petitioner. As stated earlier the suit filed by respondent/plaintiff was for possession as owner and permanent injunction on the ground that some of the disputed land was encroached upon by the petitioner/defendant and for that purpose a commission was appointed. It was found by the Court that encroachment was made by petitioner/defendant, therefore, decree was granted. In my opinion there was no jurisdictional error in the judgments/decrees of the both the lower Courts. Moreover, this point cannot be agitated at this stage while applying for review it is beyond the scope of the review. Moreover, this point relates to the judgments of two Courts below and nothing to do with the order sought to be reviewed. 7???? The next ground agitated by learned counsel for petitioner is relating to Order XLVII, Rule 1 of C.P.C. There is no denial to this preposition because the above referred Order of the C.P.C. pertains to the grounds for review, which includes the discovery of new fact which was not in the knowledge of the petitioner at the time of announcement of judgment, or mistake apparent on the face of record. The review petition of petitioner is being examined keeping in view the provision of the said order 8.??? The 3rd ground is about the non-inspection and measurement of the suit property by two local commissions. It is again a ground related to merits and if it is considered and allowed it would amount to reopening of the case which is, not allowed,. A party seeking review cannot be allowed to convert the review petition into appeal. I would rely upon the case titled Abdul Hakeem and others v. Khlaid Wazir reported in 2003? SCMR 1501, wherein it is held that:

?????? "Order XLVII, Rule 1 of the C.P.C. clearly lays down that review? proceedings? cannot? partake? re-hearing? of? a? decided case.? Review? also? cannot? be? allowed? on? the? ground? of discovery? of? some? new? material? if? such? material? was available at the time of hearing of the trial, the appeal or the revision, as the case may be. A ground not urged or, raised at such earlier stages cannot be allowed to be raised in review proceedings." 9.??? Similar view has been taken in case titled Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others reported in 2007 SCMR 755, wherein it is observed that:

?????? "We having heard the learned counsel for the parties at length and perused the record with their assistance have found that the contentions raised by learned counsel in support of this petition have been exhaustively dealt with in the judgment under review. This is settled law that the points already raised and considered before the Court, cannot be re-agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law. The learned counsel has not been able to point out any such error of law in the judgment or interference in the review jurisdiction." 10.? In case of Haji Muhammad Boota and others versus Member (Revenue) BOR and others reported in 2010 SCMR 1049, the same principle has been laid down, which reads below:

?????? "All the arguments made today have been considered and decided? in? a? comprehensive? manner? in? the? judgment impugned. In fact Mr. S.M. Zafar learned Senior Advocate Supreme Court and Mr. Badar Munir, learned Advocate Supreme? Court? wanted? re-examination? and? re-evaluation? of the? entire? evidence? once? again? which,? we? are? afraid, cannot? be? done? while? dilating? upon? these? review? petitions. It is well-settled by now that review cannot be granted on the around that certain facts require re-appraisement by Supreme Court. It is further held that:

?????? "There is no cavil to the proposition that review cannot be granted for merely re-examination of the same arguments. Re-arguing a case on merits as well as additional grounds is beyond the scope of review petition." 11.? The above case-laws have established that in case of review no appraisal of evidence and re-opening of case are permitted. Similarly record is also not allowed to he reappraised in the case in hand as discussed above the petitioner wants to reappraise the evidence on record and also to reopen the question of jurisdiction of two Courts below and to give decision regarding two local commissions on whose reports the two Courts below were based. All these factors relate to the merits and if allowed it will amount to reopening of a case already decided by competent forum. Moreover, it amounts to converting the review petition into appeal. 12.? Moreover, this Court, in impugned order, has already dealt with the grounds agitated in review, and gave its decision in comprehensive manner. 13.? The? petitioner? has? failed? to? establish? any? mistake? on? record? or? discovery? of? new? fact? not? available? at? the? time? of judgment? or? any? other? ground? recognized? by? the? Order? XLVII, Rule? 1? of? C.P.C.? and? resultantly,? instant? review? petition? is dismissed. H.B.T./184/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.