1994 PLP 275 (SCMR)

‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980, O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Judgment in question, had proceeded on factual assumptions established from record‑‑‑Petitioners filing affidavits to controvert such assumptions‑‑‑Effect‑‑‑None of the affidavits filed by petitioners had the effect of dislodging factual assumption which otherwise stood established from record‑‑‑Decision of Supreme Court rendered on merits was not liable to be disturbed in review, in circumstances. (c) Supreme Court Rules, 1980‑‑‑ ‑‑‑‑O. XXVI, R. 1‑‑‑Civil Procedure Code (V of 1908), S. 151‑‑‑Miscellaneous application seeking reconsideration of judgment by Supreme Court‑‑‑Dispute relating to consolidation proceedings and not to proceedings on settlement side‑‑‑Such dispute having already been settled by hierarchy of Consolidation Authorities could not be reopened before Supreme Court in miscellaneous application filed alongwith review application for setting aside judgment of Supreme Court‑‑Miscellaneous application to reopen a settled question, was not competent in circumstances. Salim Ahmed Malik, Advocate/Advocate‑on‑Record for Petitioner (in C.R.P. No.27 of 1991). Munir Ahmad Peracha, Advocate for Respondents (in C.R.P. No. 27 of 1991). Kh. Muhammad Yusuf Saraf, Advocate instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in C.M.P. No. 120‑L of 1992). Nemo for Respondents (in C.M.P. No. 120‑L of 1992). Date of hearing: 20th October, 1993. SHAFIUR RAHMAN, J.‑‑‑A Review Petition and a Civil Miscellaneous Petition have been filed seeking reconsideration of our judgment dated 26‑5‑1990.

2. The Review Petition is based on the contention that the respondents who are now the petitioners had not been properly served and some of them were dead and their legal representatives had not been brought on record. It is admitted that the death of the respondents (petitioners herein) had taken place after the amendment in the Civil Procedure Code with regard to the abatement had taken place. The death of the respondent in a case pending before the Supreme Court and a decision in his absence has been considered in Khushi Muhammad v. Mst. Aziz Bibi (PLD 1988 SC 259) and has been held to be inconsequential in the circumstances of the case.

3. The service on the respondents (petitioners herein) had indeed not taken place strictly in accordance with the Rules of the Supreme Court but before making it a ground the learned counsel was asked to argue on merits and to show that the factual assumption on which the judgment proceeds namely that Allah Ditta was a Government servant and hence could be treated as an allottee of the estate was not correct. He has filed the affidavits but none of these has the effect of dislodging the factual assumption which otherwise stands established from the record. The decision on merits, therefore, is not liable to be disturbed in review.

4. As regards the Civil Miscellaneous Petition, the claim is that a part of the property located in Square No.53 to the extent of 24 Kanals 4 Marlas was allotted to Ali Muhammad father of Muhammad Salim and Muhammad Amin petitioners in the Civil Misc. Petition, but in the consolidation in 1960 he was given alternate land in Square No. 56 while Ghulam Muhammad against whom the proceedings before the Settlement Authorities were taking place was allowed allotment in Square No.

53. This was challenged by the petitioners in consolidation hierarchy but ultimately Ghulam Muhammad agreed to take land in Square No. 56 and not in Square No.

53. This ground calls for no attention in this Court because whatever trick Ghulam Muhammad has played upon the petitioners relates to consolidation proceedings and not to be proceedings on the settlement side. Land in Square No. 53 which had fallen to the share of Ghulam Muhammad was the subject‑matter of resumption but not so the land in Square No. 56 which, with the consent of the petitioners, Ghulam Muhammad has protected in the consolidation proceedings.

5. C.M.P. No. 120‑L/92 as well as the Review Petition both are dismissed. A.A./F‑277/S. Review dismissed.