1. ' This Civil Revision Application is directed against the order dated 26-9-2001 passed by learned IIIrd Additional District Judge, Sukkur dismissing the application filed by the applicant seeking review of the judgment, dated 17-4-2001.
2. Relevant facts noted for disposal of this revision application are that applicant/plaintiff (hereinafter to be called as applicant) had instituted before the Civil Judge, Rohri a Civil Suit No.9 of 1998 for declaration, possession and mesne profit. On an objection raised by respondents/ defendants Nos.1 to 3 (hereinafter to be called as respondents), the plaint was returned to the applicant for want of pecuniary jurisdiction vide order, dated 29-2-2000. Applicant challenged the above order by preferring a Miscellaneous Appeal. While the said appeal was pending, applicant filed an application under Order XXIII, rule 1, C.P.C. Seeking permission to withdraw the suit'in respect of part of Suit Property viz. Shops and stated that he would. Persue his case as regards the remaining part viz. Vacant plot. The then learned IIIrd Additional District Judge (Mr. Raja Basantani), however, dismissed said application and the miscellaneous appeal, both, vide judgment, dated 17-4-2001. At some later time applicant filed an application seeking review of the above judgment. The said application also met the same fate vide order, dated 26-9-2001 passed by Mr. Naseem Ather Shaikh, learned IIIrd Additional District Judge, Sukkur, impugned herein.
3. 'Mr.. Abdul Qadir Shaikh, learned counsel for applicant contended that the review application was dismissed by Mr. Naseem Ather Shaikh, learned IlIrd Additional District Judge, Sukkur on technical ground viz. He was of the opinion that he was not legally competent to review the order passed by his predecessor and that he was also not competent to sit as Appellate Authority. Mr. Shaikh maintained that the applicant had filed the review application when Mr. Raja Basantani presided the Court of IIIrd Additional District Judge and that on such application he had issued a notice to respondents, therefore, Mr. Naseem Ather Shaikh being his successor enjoyed plenary powers and could exercise the jurisdiction to review the judgment, dated 17-4-2001 on the application filed by applicant. Mr. Abdul Qadir Shaikh referred the case of Kohai Gazi and others v. Muhammad Ishaque Sardar PLD 1966 Dhaka 110, the case of Muhammad Rafique v. Mst. Rashida Begum 1979 CLC 832 and the case of Mandu and others v. Muhammad Umer and others 1982 CLC 284 to maintain further that a revision application was competent against the order rejecting an application for review of the judgment' passed by the then learned Additional District Judge.
4. ' On the other hand Mr. Ishrat Qayoom Hanfi, learned counsel of the respondents asserted that learned IIIrd Additional District Judge, Sukkur while dismissing the review application of the applicant had considered the merits of the case in detail, examined the question of maintainability of review application and had found the review application to be completely misconceived, therefore, impugned order could not be said to have been passed simply on the technical ground such as want of jurisdiction. He vehemently opposed this review application and prayed that it be dismissed. Mr. Hanfi, however, did not challenge the maintainability of this revision application.
5. ' Perusal of the record shows that the applicant had filed an application under Order XXIII, rule 1 read with section 151, C.P.C. During the pendency of miscellaneous appeal filed by applicant. Mr. Raja Basantani learned IIIrd Additional District Judge, Sukkur, as then he was, in his wisdom, dismissed the said application as well as the appeal, both, vide his judgment, dated 17-4-2001. On this, applicant filed a review application under Order XLVII, rule 1 read with section 151, C.P.C. In which, inter alia, the ground taken was that learned counsel for both the parties had only advanced their arguments on application and no arguments were advanced on the appeal. Thus the question which mainly came up before the learned Review Court was whether its predecessor fell in error in disposing of the appeal when according to assertions of applicant no arguments were advanced in that behalf implying thereby that merits or demerits of appeal were not touched upon, at all, by parties, therefore, Mr. Basantani, ought not to have adjudicated upon the matters involved in the appeal, without hearing parties.
6. ' Perusal of the impugned order shows that while dismissing applicant's review application under the order, impugned herein, following observation has been made:-- "Once it was established that the application under Order XXIII; rule 1, C.P.C. Was not maintainable the application cannot be granted. The only course open my brother was to dismiss the appeal of present applicant. It is not within the knowledge of the undersigned as to whether appeal as whole was heard or only an application under Order XXIII, rule 1, C.P.C. Was heard. For all intent purposes the applicant intents reargue the whole matter. A wrong decision by itself cannot be basis of review of it is not an error. Through this review application applicant wants to re-argue the whole matter which is against the spirit of Order XLVII, rule 1, C.P.C. If some law is needed I am fortified by the law reported in PLD 1997 SC 86 furthermore since the order to be reviewed was passed by my brother Raja Basantani I am not lawfully competent to review his order nor lawfully competent to sit as Appellate Authority." (Emphasis by me.)
7. ' It will be seen from the above narration that learned IIIrd Additional District Judge, Sukkur has not given any finding on the ground mainly taken by applicant. Rather, he has expressed his ignorance by saying that it was not within his knowledge whether appeal as whole was heard or only an application under Order XXIII, rule 1, C.P.C. Was heard.
8. ' Coming to the other observation of learned IIIrd Additional District Judge that since the order to be reviewed was passed by my. Brother Raja Basantani, he was not lawfully competent to review his order, it may be stated that in case learned IIIrd Additional District Judge was of that view, although, in my view, it is not legally correct for the reasons next to follow, he ought to have disposed of the review application on that ground alone instead of entering deep into the controversy to examine the facts and circumstances and make his observation in respect thereof on merits as admitted by Mr. Hanfi in his above submissions.
9. ' Now, reverting to point of jurisdiction to hear and adjudicate upon the review application it may be stated that rule 2 and rule 4 of Order XLVII, C.P.C. Are relative to the facts of this case, which, for the sake of facility is reproduced as follows:--- ' Rule 2.
10. "2. To whom applications for review may be made.---An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge who passed the decree or made the order sought to be reviewed; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-rule (2), proviso (a), be disposed of by his successor ' Rule 4.
4. Application where rejected.--- (1)...............
11. ' Application where granted. (2) Where the Court is of opinion that the application for review should be granted, it shall grant the same: ' Provided that---
(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and (b)..................................
12. (Emphasis is by me)
13. ' During the course of arguments, Mr. Shaikh learned coil! Nsel for the applicant stated in categorical terms that review application was filed while Mr. Raja Basantani who was author of the judgment sought to be reviewed, presided the Court of IIIrd Additional District Judge. According to Mr. Shaikh, Mr. Basantani did not reject the review application of applicant; but, preferred to issue notice to respondents on the said application. This fact was not denied by Mr. Hanfi rather, on a question posed to him, he admitted the above fact. Rule 2 of Order XLVII, C.P.C. (reproduced above), which envisages as to whom applications for review may be made, provides that an application for review of decree or order of Court, not the High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge who passed a decree or made the order sought to be reviewed; but any such application may if the Judge who passed the decree or made the order, has ordered notice to issue under rule 4, sub-rule 2, proviso (a), be disposed of by his successor. Further, it is noted that sub-rule 2 of rule 4 speaks about grant of review application with notice to the opponent party to enable him to appear and be heard in support of the decree of order, the review of which is applied for. Admittedly, Mr. Basantani had not rejected the review application. He had preferred to issue notice to other side, which he was empowered to do under sub-rule (2) of rule 4 of Order XLVII, C.P.C. Thus, I am of the opinion that the contention of Mr. Shaikh that within terms of rule 2 of Order XLVII, C.P.C. Mr. Naseem Ather Sheikh learned IIIrd Additional District Judge, Sukkur being successor of Mr. Raja Basantani enjoyed plenary powers and had jurisdiction to decide the review application, has enough force. Mr. Naseem Ather learned IIIrd Additional District Judge, in my view, was, therefore, empowered in the instant case to exercise jurisdiction and dispose of the application seeking review of judgment, dated 17-4-2001 authored by his predecessor Mr. Raja Basantani.
14. ' Keeping, in view the above discussion, I set aside the impugned order and remand the case to learned IIIrd Additional District Judge, Sukkur to decide the review ap plication afresh after hearing parties in accordance with law, within sixty days of the receipt of this order.
15. ' Civil Revision Application 89 of 2001 stands disposed of in the above terms.