P L D 1976 Lahore 1173 (PLP)

MUSHTAQ HUSSAIN " J.‑This Review Application arises out of the judgment of this Court in Muhammad Hussain and others v. Farzand Ali and others in Civil Revision No. 67 of 1963. That Revision Petittoa was dismissed in limine by a learned Judge in Chambers on the 5th of March 1963. It had been argued before his Lordship that by virtue of section 114 of the Punjab Tenancy Act and the conferment of proprietary rights of occupancy tenants thereunder on Hakim and Rehmat in the present case, their power of alienation was enlarged. The learned Judge did not see eye to eye with this submission.

2. On the 20th of February 1964, a Division Bench of the Court decided Ibrahim v. Muhammad Bashir and others (P L D 1964 Lab. 421 and held against the view taken by the learned Judge in Chambers in this case on the question of the effect of section 114 introduced by the Punjab Tenancy Amended Act of 1952.

3. The petitioner in the aforementioned Civil Revision. consequently filed Review Application No. 94 of 1967 on the basis of this decision. The same was admitted to a hearing and has been referred to us by the order of my Lord the Chief Justice for disposal. 4, The first question that has arisen before us is whether Order XLVII of the Code of Civil Procedure could be attracted to the facts and circum stances of the case before us. As already stated above, the Revision Petition was dismissed in limine on 5th of March 1963, and the decision of a Division Bench which is sought to be made the basis for the review of that order was passed on 20th of February 1964. In other words, the decision of the Division Bench was not in existence on the day when the Revision Petition was dismissed. Order XLVII of the Code of Civil Procedure authorises a person considering himself aggrieved on account of the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at that time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason to obtain a review. So far as the discovery of new and important matter or evidence is concerned, the mere fact that this ground is conditioned by the embargo that it was either not within the knowledge of such person or that it could not be produced by him after the exercise of due diligence at the time when the decree was passed or order was made, presupposes the existence of that new and important matter or evidence at the time when the decree or order sought to be reviewed was made. In the present case, it cannot be said that the judgment which was delivered on the 20th of February 1964, could have, after the exercise of due diligence, been produced before the learned Judge in Chambers on 5th of March 1963, i.e., about a year earlier or that it was in existence but was not within the knowledge of the person concerned. The first part is, therefore,' not attracted to the facts of this case at all.

5. The second part of the rule deals with a mistake or error apparent on the face of the record. This mistake or error should be such as was apparent on the face of the record on the day when the order was passed. In fact a Review Application cannot be made after the period of limitation prescribed by the Law of Limitation, has expired and it, therefore, pre supposes that the basis of the grievance was in existence on the day when' the order was made as the period of limitation would start to run from that very date.

6. The last contention is that such person may ask for review for "any other sufficient reason". The question is whether a mistake of law would be a sufficient reason and in Chhajju Ram v Neki and others (1) the Privy Council rated in a case from Lahore that : ‑ "They think that rule I of Order XLVII must be read as in itself definite of the limits within which review is today permitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words `any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously. Such an interpretation excludes from the power of review conferred the course taken by the second and third Division Benches. In this case it had been held that the previous decision of the case `proceeded upon an incorrect exposition of law'. A mere mistake of law or incorrect ,exposition of law could not be made a ground of an application for review. We may in this connection also refer to two judgments of this Court. In Kanshf Ram and another v. Diwan Chand and another (2) it was held that: "But if the learned Subordinate Judge meant to say that he had made some mistake on a point of law, even that would not be a good ground for review." 'To the same effect is the decision in Rattan Chand v. Mst. Ram Piari (3) where it was held that: "In the present instance, the learned Senior Subordinate Judge has reviewed his predecessor's order on the ground that a ruling relied upon by him, viz. A I R 1930 Lab. 195, had been wrongly interpreted. In the first place it is not quite clear that the ruling was misinterpreted, but in any case this could not be considered an error of law apparent on the face of the record, such as could justify a review; see 3 Lab. 127, 55 All. 195 and 112 I C 277 etc.". The law, therefore, is very clear on this point.

7. Learned counsel, however, placed reliance on Faqir Muhammad Khan v. Mir Akbar ,Shah (4). This was a case in which a judgment of the Full ,Bench which had not been reported, was in existence on a day when a learned Single Judge interpreted the law contrary to its exposition by this Full Bench judgment. Their Lordships observed that: ‑ "A judgment of a Full Bench also decides authoritatively for the High Court the point of law referred to it and, therefore, to that extent also declares the law with respect to that point. That declaration of law is binding on all other Benches of the High Court until set aside or reversed by another Full Bench of the sane High Court or by a superior Court. Failure to notice such an authoritative decision would, therefore, in my opinion, clearly be an error apparent on the face of the record. . n a Court consisting of only four Judges the Peshawar Seat of the former West Pakistan High Court, it is difficult to imagine how a decision of a Full Bench consisting of three of the learned Judges of that High Court remained unknown to the fourth learned Judge. I am not, therefore, prepared to accept that because the judgment of the Full Bench was not reported up to the time the judgment sought to be reviewed was delivered, the learned Judge concerned was not aware of it and, therefore, not bound to take any notice of it. The 11(1) A I R 1922 P C 112 (2) A I R 1933 Lab. 169 43) A I R 1937 Lab. 791 (4) P L D 1973 S C 110 judgment of the Full Bench, so far as the Peshawar Seat of the High Court was concerned, was not only an authoritative decision but also a well‑known decision, which should have been followed. We are, therefore, unable to agree with the learned Single Judge that the review petition was not maintainable. Nevertheless w e must also point out that the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles". The following things are clear from this judgment:‑ (a) The Full Bench judgment on the basis of which the review had been: sought in that case, was one which had been announced quite a few months before the judgment sought to be reviewed was declared. The Full Bench judgment, therefore, was in existence on that date. (b) Since there were only four Judges at Peshawar, three of whom were parties to the judgment, it was found difficult to assume that the learned remaining Judge was not aware of that judgment. (c) Learned counsel conceded that failure to notice a judgment of the Privy Council or of the Supreme Court may amount to an error on the face of the record.

8. In the case before us, there was no judgment of the High Court. or the Supreme Court contrary to the findings arrived at by the learned Single Judge on the date he disposed of the case. The judgment of the; Division Bench which came into existence later, could not even by any occult process bave been known to the learned Judge in Chambers on the. date he disposed of the case.

9. The dictum of the Supreme Court in Faqir Muhammad Khan v. Mir Akbar Shah is, therefore, not attracted to the facts of this case and the rule is not apposite to the point raised before us. This Review Application is, therefore, dismissed as being incompetent under Order XLVII, rule 1 of the Code of Civil Procedure. s. A. H. Petition dismissed