IN THE HIGH COURT OF SINDH AT KARACHI
High Court Appeal No. 180 of 2011
Before: Mr. Nadeem Akhtar,J.
Mr. Shah Nawaz Tariq, J.
Appellant: Zulifquar Ahmad in person and on behalf of other Appellants.
Respondents:
Date of hearing: 23-10-2013.
O R D E R
SHAHNAWAZ TARIQ, J. ----- Through the instant appeal, appellant Zulifquar Ahmed and 14 others have impugned the order dated 05.10.2011, passed by the Learned Single Judge of this Court, whereby Civil Miscellaneous Application No.8959 of 2011 filed in Suit No.965 of 2003 was dismissed.
2. The relevant facts involved in the instant appeal are that one Mehmood Abbas filed Suit No. 965 of 2003 for declaration, specific performance, possession and permanent injunction. It is further stated in said Suit that though the appellants were necessary and proper parties to the proceedings but the respondent Mehmood Abbas did not implead the appellants as defendants, however, upon having knowledge of the pendency of the said suit, the appellants moved an application under Order I Rule 10 CPC for impleading them as defendants in the said Suit. In the said application it was urged by the appellants that they were grandchildren of late Noor Muhammad, who died on 02.10.1960, left behind the agricultural land in Deh Samroti, District Mirpurkhas, details whereof are available with the District Officer, Board of Revenue Mirpurkhas as well as Board of Revenue Sindh, E.P. Wing 79, Pak Secretariat, Karachi and Secretary Rehabilitation S & R Central Record Office, Lahore. The appellants further alleged that Syed Hamid Rehmani son of Mehboob-ul-Haq and others have manipulated to usurp the land of Noor Muhammad SL No.211, Page- 37, dated 14.11.1995, Nabi Bux SL No. 51, Page- 11 dated 15.12.1955, Hashim Ali SL No. 406, Page- 67, dated 21.12.1955 to the detriment of the genuine and legal entitlements of the legal claimants. In support of their claim, the appellants filed Entitlement Certificate regarding Rural/Urban Abandoned Area in India. Appellant No.1 submitted an application to the Secretary, Board of Revenue (RS&EP) Wing, 79, Pak Secretariat, Karachi, regarding illegal claim of land situated in Deh Samroti, Taluka Digri. Appellants placed certain documents before the Court, showing that said Noor Muhammad was entitled to some or all of the subject property on the basis thereof, as such, they claimed that they were necessary and proper parties to the said suit and ought to be joined as defendants.
3. The said application of the appellants was heard by the Learned Single Judge who, after hearing the arguments of the parties, dismissed the said application of the appellants vide order dated 09.08.2011. After dismissal of the said application, the appellants filed another CMA No. 8959 of 2011, seeking review of the said Order, which also met the same fate, hence the appellants through the instant appeal have impugned the order dated 05.10.2011.
4. The appellants have argued that the Learned Single Judge has passed the impugned order, which is based on erroneous assumption of law and facts. It is further argued that Learned Single Judge has failed to appreciate the submissions of the Appellants in respect of the property in question, which was based on substantial evidence and the same could only be proved during trial, but the Learned Single Judge did not afford any opportunity to the appellants to prove their inherited interests in the suit property. He further argued that it is the case of the appellants that they are grandchildren of late Noor Muhammad, who died on 02.10.1960, left behind the agricultural land in Deh Samroti, District Mirpurkhas, details whereof are available with the District Officer Board of Revenue Mirpurkhas as well as Board of Revenue Sindh, E.P. Wing 79, Pak Secretariat, Karachi and Secretary Rehabilitation S & R Central Record Office, Lahore. The appellants alleged that Syed Hamid Rehmani son of Mehboob-ul-Haq and others have manipulated to usurp the land of Noor Muhammad SL No211, Page 37 dated 14.11.1955, Nabi Bux SL No. 51 Page No.11 dated 15.12.1955, Hashim Ali SL No. 406 Page-67 dated 21.12.1955 to the detriment of the genuine and legal entitlements of the legal claimants. In support of their claim the appellant filed Entitlement Certificate regarding rural/urban abandoned area in India. Appellant No.1 submitted an application to the Secretary, Board of Revenue (RS&EP) Wing 79, Pak Secretariat Karachi, regarding illegal claim land situated in Deh Samroti, Taluka Digri.
5. We have scanned the available record including the documents and carefully heard the arguments of the appellant as well as have gone through the orders passed by the Learned Single Judge of this Court.
6. The record reveals that the appellants had no right or interest in the subject property and were strangers to the same. It is further revealed that even their predecessor-in-interest Noor Muhammad during his life time attempted to set up some sort of his delusive claim over the property but the same had been decisively rejected by the Settlement Authorities. Constitution Petition bearing No.344/1986 was also filed wherein the appellants through their Attorney, namely, Zulifqar Ahmed had attempted to become a party in the said Petition, but the learned Division Bench of this Court vide order dated 23.12.2010 dismissed the said application of the appellants by observing that neither the appellants nor their predecessor-in-interest Noor Mohammad had any right or interest in the property. The document or form from the Settlement Authorities relied upon by the appellants did not in any manner whatsoever support their case.
7. It has been observed though the instant appeal that the appellants have called in question the order passed on an application filed by the appellants seeking review of the order dated 09.08.2011. The appellants when confronted with the fact that as to why the documents on which the appellants relied upon in their review application, were not placed before the Court earlier, he has failed to the right of the appellants in the suit property, to which he attempted to argue that the documents which are in possession of the appellants could only be proved through full-fledged trial and evidence, therefore, the appellants may be allowed an opportunity to prove their case. It is observed that the appellants are mainly relying upon the Form from Settlement proceedings which does not in any manner appear to establish or suggest any claim, right, title or interest of their predecessor-in-interest deceased Noor Mohammad in respect of the property in question. It has further been observed that finally inquiry conducted by the Board of Revenue in which said Zulifqar Ahmed participated also conclusively points in the same directions.
8. In case of Abdul Hakeem v. Khalid Wazir, 2003 SCMR 1501 (c), it has been held that review proceedings could not partake of re-hearing of a decided case. Review could not be allowed on the ground of discovery of some new material, if same was available at the time of hearing of trial, appeal or revision, as the case might be, the ground not taken or raised at such earlier stages could not be allowed to be raised in review proceedings.
9. In case of Mst. Rabia Begum v. Mst. Saeed Khatoon and another, PLD 1983 Karachi 507, it has been held that review application on grounds: (1) that annexure attached with review application having not been brought to notice of Court by counsel of petitioner at the time when main petition was heard for Katcha Peshi and dismissed in limine; (2) that annexures were discovered for first time by petitioner’s present counsel on inspection of relevant file. Held, Annexures in question could have been available to petitioner if due diligence was exercised produced alongwith main petition and negligence of original counsel no ground for review.
10. In case of Commerce and Industries Corporation, Pakistan (Private Ltd. V. China National Machinery and Equipment Import and Export Corporation (Beijing), 2000 CLC 962(a), it has been held that where judgment under review suffered from errors floating on the surface of the record and there was misreading and non-consideration of material evidence, review application against such judgment was maintainable.
11. In case of Rukhsana Kausar v. Additional District & Sessions Judge, Khanewal, 2000 CLC 585 (e), it has been held that where review application was rejected, a revision was competent when order to be revised was without jurisdiction or the Court had failed to exercise jurisdiction vested in it or had acted in exercise of jurisdiction illegally or with material irregularity.
12. In case of Muhammad Asim Tiwana v. Shaukat Hussain Rizvi, 1999 CLC 1177 ( c ), it has been held that review has a very limited scope and that is only to rectify any mistake apparent on its face or of record, or if some material evidence has not been taken into consideration or has been totally ignored while passing the judgment.
13. In case of Zojan v. Muhammad Hassan: 1999 MLD 2096 (a), it has been held that object of review is to enable a party to get an error corrected or to prevent the injustice done by the Court itself. Granting of a review is in the discretion of the Court, but it has to be exercised upon sound judicial principles. Courts have inherent power to review and set aside judgments delivered without jurisdiction or which have been obtained by practicing fraud.
14. In case of Muhammad Saeed v. District Coordination Officer, Bahawalpur: 2007 PLC (C.S)389 (b), it has been held that scope of review is narrow and limited and cannot be stretched on the basis of some omission to consider facts or not making those facts, the part of judgment while deciding the facts. Judgments of superior Courts were delivered not on all points of facts, but on the material points and aspects, which in the mind of Judge were determinative factors for the just decision of a case. Exclusion from discussion in fact should be presumed to have given an impression that those points of law and facts were not considered material and relevant for the disposal of the lis and were not required any detailed discussion. Lengthy and irrelevant discussion in the judgment, were not to serve the case and cause of speedy administration of justice, it was to delay the adjudication of cases.
15. In case of Mehdi Hassan v. Province of Punjab: 2007 SCMR 755, it has been held that review jurisdiction is confined to the extent of patent error or mistake floating on surface of record, which, if not corrected, might perpetuate illegality and injustice. Points already raised and considered by Court could not be re-agitated in review jurisdiction. Mere fact that another review of matter was possible or conclusion drawn in impugned judgment was wrong, would not be a valid ground to review judgment, unless it was shown that court had failed to consider an important question of law.
16. In case of Muhammad Riaz v. Pervaiz Mehandi, PLD 2006 SC (AJ &K) 5(a), it has been held that review is not regular remedy, Court, however, has the power and is in fact obliged to review an order, which suffered from patent error which floating on the face of record. Court, instead of being stuck to an error, should correct itself, if it had gone wrong. Errors or wrongs, however, ought to be substantial and speaking, a view formed by the Court by interpretation of law and elucidation of facts, according to its perception, would not be deemed to be wrong, simply for the reason that view contrary to it could also be taken. Court, as far as possible, had to meet the ends of justice and carry out the purpose of all contemporary laws, not by conceding to the contentions of the parties, but according to appreciation of law and facts. Contentions and view of the parties, were to be considered compassionately, but decision had to be in the light of law which Court perceived.
17. While dealing with scope of review jurisdiction, it has been held that conscious and deliberate decision of Court, even though erroneous, would not be open to review, as review not competent on a ground already advanced and attended to by Court. Review could lie on the ground of an error of fact or law to be self-evident and floating on surface or record, which no Court could permit to remain on record.(Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56. Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd., PLD 1997 SC 856. Water and Power Development Authority v. Khalid Pervez, PLD 2006 Lah. 611).
18. The prime assignment of the Courts is to ensure the administration of justice amongst the parties involved in the controversy. All the statutes are meant for the redressal of the grievances of the aggrieved persons under prescribed scheme of law in order to strengthen the basic roots of the society and also to maintain the peace and tranquility in all of its segments. Under the Constitution, it is essential responsibility of the Courts to curb the unnecessary litigation as well as to discourage the false claimants. While dealing with the scope of review, the Court must examine it deeply and observe thoroughly the aspects of its maintainability that as to whether any illegality or irregularity has been committed by the Court itself while concluding its findings under the challenged verdict, and to see if the said verdict was just, proper and in accordance with the law or not. As it is mandatory for the party seeking review to establish prime facie a strong plea that the Court, firstly, has ignored, unnoticed and overlooked any important, essential or significant issue while concluding its findings, secondly, under which the concerned party has been deprived for which said party was entitled, and lastly, that whether the said verdict would affect the legal rights of the said party at the time of final determination of the controversy. No hard and fast rule could be prescribed for the purpose of review jurisdiction, as it is for the Court to exercise it according to the peculiar facts and circumstances of each case. Therefore, no party should be provided an easy way to cause unnecessary interference into the earlier conclusion of the Court and the grounds prescribed for the appeal and revision are not available to any party to defeat and delay the proceedings by filing review.
19. Presently, the appellants are allegedly agitating their claim on the strength of the rights and entitlement available to one late Noor Muhammad by claiming to be his grandchildren. In this respect it would be essential to mention that said Noor Muhammad during his life time attempted to set up some sort of delusive claim over the property but the same had been decisively rejected by the Settlement Authorities. Thereafter Constitution Petition bearing No.344/1986 was also filed wherein the appellants through their Attorney, namely Zulifqar Ahmed, attempted to become a party in the said Petition, but the Learned Division Bench of this Court vide order dated 23.12.2010 dismissed the said application of the appellants by observing that neither the appellants nor their predecessor-in-interest Noor Mohammad had any right or interest in the property. Even otherwise, the form from the Settlement Authorities which the appellants are moving around and relying upon was also unable to create their right in any manner
20. We, for the aforesaid circumstances, are in agreement with the Learned Single Judge of this Court that if the appellants are made party to the suit, the same would be nothing but a futile exercise and would lengthen the final disposal of the suit and also create a new account of litigation which would also affect the actual adjudication and final determination of the legal rights of the concerned parties to the subject Civil Suit. The Single Judge of this Court did not ignore, unnoticed and overlooked any important issue while passing the impugned order. Also, through the challenged order, the rights of the appellant were not affected as there were no rights to begin with, and due to which the appellants were not deprived of their alleged entitlement.
21. Consequently, the impugned order dated: 5-10-2011 does not suffer from any illegality or irregularity, hence does not call for any interference and same is maintained and the instant appeal being devoid of merits stand dismissed.
22. These are the reasons for the short order passed by this court on 23.10.2013, whereby the instant appeal was dismissed in limine.
Judge
Judge
Abdul Salam/P.A