2010 SCMR 1049 (PLP)

JAVED IQBAL, J.

Review of judgment dated 13-6-2003 has been sought by means of these review petitions preferred on behalf of Haji Muhammad Boota and Bashir Ahmad, etc. (petitioners).

2. Heard Mr. S. M. Zafar, learned Senior Advocate Supreme Court in CRP No.117-L of 2003, Mr. Badar Munir, learned Advocate Supreme Court in CRP No.140-L of 2003 and Mr. Khadim Hussain Qaisar, Additional Advocate General for respondents Nos.1 and 2 at length. 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 ivview cannot be granted on the ground that certain facts require re-appraisement by Supreme Court. In this regard we are fortified by the dictum laid down in Basharat Khan v. The State 1984 SCMR 1033 (1) Zulfikar Ali Bhutto v. State PLD 1979 SC 741, Muhammad Nazir v. State 1979 SCMR 89, Kala Khan v. Misri Khan 1979 SCMR 347, Saghir Ali v. Mehr Din 1968 SCMR

729. 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. In this regard reference can be made to Manzoor Hussain v. Zohra Bibi PLD 1990 SC 924, Haji Muhammad Sarwar v. Mian Asad, Hakim and others 1983 SCMR 177, Jalal v. Nazir Ahmad 1980 SCMR

320. Abdul Hamid Saqfi v. Service Tribunal of Pak. 1988 SCMR 1318, Ali Khan v. Shahzaman 1980 SCMR 332, Abdul Majeed v. Chief Settlement Commissioner 1980 SCMR 50.4, Maqbool Ahmad Tabassam v. State 1980 SCMR 907, Zulfikar Ali Bhutto v. State 1979 SC 741, Nawab Bibi v. Hamida Begum 1968 SCMR 104, Muhammad Hayat v. Government of West Pak 1968 SCMR 107, Muhammad Najeebullah v. Government of Pakistan 1968 SCMR 768, Muhammad Ghaffar v. State 1969 SCMR 12, Ghulam Fatima v. Settlement Commissioner 1969 SCMR 5, Ghulam Fatima v. Settlement Commissioner 1969 SCMR 247, Feroz Din v. Allah Ditta 1969 SCMR 10, Dewan Jairamadass and others v. Syed Niamat Ali and others 1983 SCMR

330. It is well-settled by now that "where petitioner took up all material grounds taken by him during the course of hearing of appeal and dealt with and decided in judgment under review and thus sought rehearing of arguments addressed by him at the time of hearing and disposal of appeal and wished a different decision from one already given without satisfying jurisdictional requirement necessary for maintaining review petition. The petition was dismissed Akbar Ali Bukhari v. State Bank of Pakistan 1981 SCMR

518. The re-hearing of the case in garb of review petition cannot be allowed as held in case titled Zulfikar Ali Bhutto v. The State PLD 1979 SC 741 and moreso review cannot be granted on the ground that certain facts require re-appraisement by Supreme Court Basharat Khan v. The State 1984 SCMR 1033 (1), Muhammad Nazir v. State 1979 SCMR 89, Kala Khan v. Misri Khan 1979 SCMR 347, Saghir Ali v. Mehar Din 1968 SCMR 729.

3. The principles upon which a review can be granted are well-settled, 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 the 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 or process of ratiocination. 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. Error, on the other hand, must not only be apparent but must also have a material bearing on fate of 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 the record. Where order under review did not appear to have been vitiated by any error on face of the record nor any other good and sufficient reason was given for review of order. Petition for review was dismissed". Nawab Bibi v. Hamida Begun 1968 SCMR 104, Master Tahilram v. Lilaram 1970 SCMR 622, Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner Pakistan 1969 SCMR 800, Rehmatullah v. Abdul Majid 1968 SCMR 838, Hassan Din v. Claims Commissioner 1969 SCMR 1047 (2), Qamar Din v. Maula Bakhsh 1968 SCMR 1042 (1), Muhammad Akram v. State 1970 SCMR 418, Muhammad Akram v. State 1970 P.Cr.LJ 909, Zulfikar Ali Bhutto v. The State 1979 SCMR 427, Rizwan Co-operative Society Ltd. Custodian of Evacuee Property 1978 SCMR 449, Farzand Ali v. Mohd. Arif 1979 SCMR 281, Rashiduddin Qureshi v. State 1979 SCMR 99.

4. These review petitions have been examined in the light of contentions as mentioned hereinabove which appear to be devoid of merits. The review petitions are accordingly dismissed.

5. We cannot remain oblivious of the observations made in the judgment impugned which are as under: "There is another aspect of this case which cannot be lost sight of that the petitioners in Civil Petition No.22-L of 2000 themselves took up the plea of res judicata in the suit filed by the petitioners in Civil Petition No.84-L of 2000 placing reliance upon the determination on merits in the earlier round of litigation. The plaint of the petitioners in Civil Petition No.84-L of 2000, out of which the present petitions have emanated, was rejected at their initiation under Order VII, rule 11, C.P.C. by placing reliance on the principle of res judicata. How can now the petitioners in Civil Petition No.22-L of 2000 turn round to say that those judgments had been washed away by the withdrawal of the suit by them when they withdrew their appeal from this Court. Their stance is totally contradictory and amounts to blowing hot and cold at the same time. They got the plaint of the other side i.e. Altaf-ud-Din petitioner in Civil Petition No.84-L of 2000 rejected by pressing the merits of the earlier case. Furthermore, if the parties are allowed to do away with the judgments rendered against them by simple withdrawal of the suit without making formal order respecting setting aside of the decree of the subordinate Courts, it would give impetus to the adventurist who would enter the arena of litigation and having failed before all the forums ultimately withdraws the suit which would tantamount to completely frustrating the concept of justice. The judgments or decrees in such like cases as the present one can only be set aside on merits. Both the petitioners failed to substantiate their title to the disputed land and the petitioners in Civil Petition No.22-L of 2000 simply on an order of sanction of mutation passed by the revenue forums cannot say that by the withdrawal of the suit the judgments qua title rendered against them lost all their force. Resultantly, for what has been stated above, both the above petitions being without any merit are dismissed and leave refused."

6. It has been observed with grave concern that judgment impugned is yet to be implemented which could not be done by Board of Revenue for the reasons best known to it which speaks, however, of a contemptuous conduct, careless and callous approach which cannot be ignored. The learned Member, Board of Revenue is directed to furnish explanation that as to why the judgment impugned could not be implemented in spite of the fact that no stay order was granted. A categoric direction was given in the judgment impugned which is as follows: "Since the petitioners in both the petitions, as already stated, failed to substantiate their title to the disputed property and their endeavour is to perpetuate their illegal occupation by adopting different methods, we direct the Provincial Government to take immediate steps to take over the disputed land and utilize the same for some charitable purpose."

7. Explanation be reached within two weeks of the receipt of this order. S.A.K./M-44/SC Review dismissed.