' SHEIKH HAKIM ALI, J.---Anwar Ahmed, the review petitioner, a tenant of house No,20, situated in Delhi Cooperative Housing Society Ltd, Shaheen-e-Millat Road, Karachi, rented out to him by Mst.
Nafeesa Bano, respondent (now deceased) having lost his claim of specific performance, founded upon an alleged oral agreement to sell of the aforementioned house, by filing the suit for specific performance in the year 1972, culminating into the final judgment of this Court, delivered by a majority view of two Honourable Judges of this Court on 8-9-2004, maintaining and upholding the dismissal of the suit, is still dissatisfied with the judgment of all the Courts, delivered cumulatively by 5 Judges of different Courts, has now brought before us the review petition, which has been addressed and argued by his learned counsel, Syed Sharifuddin Pirzada, Senior Advocate, Supreme Court, on the following formulated points:-
(1) Civil Appeal No,1599 of 1995 (Anwar Ahmed v. Mst. Nafeesa Bano), was heard from 13th to 15th April, 2004; but the majority view judgment was pronounced on 21-8-2004, consuming near about a period of 5 months. As per learned counsel, this long period of 5 months' is a sufficient ground to pray for re-hearing of the case of the petitioner on merits afresh.
(II) Mst. Nafeesa Bano had instituted a Civil Suit No 913 of 1972 to obtain declaration that receipt, agreement or any other document in possession and control of defendant (Anwar Ahmed), purporting to have settled a sale transaction and the payment of sale consideration, with regard to the house in dispute, were forged and fabricated documents and therefore, liable to be cancelled.
This suit was dismissed on 24-7-1975 due to plaintiff's non-prosecution by the learned Senior Civil Judge of Karachi (East). Application filed under Order IX Rule 9 read with section 151 of the C.P.C.
Was also dismissed in default on 20-12-1975, the effect of which was the creation of Estoppel against Mst. Nafeesa Bano, to challenge the genuiness of those documents, in the present suit for specific performance of agreement to sell, field by Anwar Ahmed.
(III) During the pendency of the above noted suit for specific performance, Anwar Ahmed plaintiff, was summoned by learned Single Judge in Chamber of the Sindh High Court, and his statement was recorded by the aforesaid learned Judge in Chamber and it was held by learned Judge that the documents, bearing Exh.P.6/1 and Exh.P.6/2 were forged and fictitious documents. The learned counsel submits that the learned Judge in chamber had declared Exh.P. 6/2 to have been previously hand written but after erasing that writing through chemical reaction, the required subject-matter was typed on it, although readability of previous writing with the help of magnifying glass was still possible. It was, so that while granting leave on 27-8-1995, reassessment of evidence was directed to be made at the time of hearing of appeal of the petitioner, but that exercise was not made at the time of delivery of final judgment by this apex Court. To elaborate it, the learned counsel submits that this Court was bound to follow the terms and conditions of leave grant order.
(IV) Discretion, in the above circumstances should have been exercised in favour of plaintiff as against the respondent/defendant.
(V) Remand was to be directed as was ordered by Mr. Justice Iftikhar Muhammad Chaudhry, the learned Judge, who had delivered the minority judgment, in favour of plaintiff-the review petitioner.
2. Responding to it, respondent's counsel has supported the impugned majority view judgment of this Court by arguing that the review jurisdiction in its scope is limited jurisdiction as held by this Court in PLD 1998 SC 363 (Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others); PLD 2001 SC 233 (Wasim Sajjad v. Federation of Pakistan) and PLD 2001 SC 555 (Sui Southern Gas company Ltd. v. Engineer Naraindas and others). Further submits that all the Courts, from the learned Single Judge in Chamber of the Sindh High Court, learned Judges of the Division Bench of that Court and of this apex Court on 11-9-2004, having decided the case, against the review petitioner, in all the five learned Judges of the superior Courts having concurred, the judgment under review now cannot be upset, merely on the ground that judgment by one of the learned Judges of this Court, was delivered in favour of review petitioner, which had not even decided finally the genuiness of the disputed documents itself but had remanded the case to the learned High Court of Sindh, for decision afresh. To express it clearly, the learned counsel has submitted that five learned Judges had held that the documents in dispute were forged and fabricated in their nature by adducing sound reasons, therefore, the judgment under review was not liable to be reversed solely on the basis of indecisive findings in respect of the documents, by one of the learned Judges of this Court.
3. Before proceeding to discuss the points raised and replied, it is necessary to narrate that the facts of the case having been exhaustively noted in all the judgments, we have, henceforth avoided to reiterate it in this judgment, but have adverted to deal with the points raised by the learned counsel of the review petitioner.
4. It has been noticed by us that a tendency has developed nowadays to presume review jurisdiction to be taken to an appellate jurisdiction. It is, therefore, that the review petitions are being filed with these considerations, although this is not in actuality the case and scope of review jurisdiction. The review jurisdiction has to be invoked in consonance with the requirements of Order XXVI, Rule 1 of the Supreme Court Rules, 1980, which envisages the applicability of the grounds similar to that of Order XLVII, rule 1 of the Code of Civil Procedure, 1908. According to that rule 1 of Order XLVII of the C.P.C., the following preconditions are essential, for beseeching the exercise of review jurisdiction:---
(i) When new and important matter or evidence has been discovered after the passing of impugned judgment, decree or order, which after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him at the time of making of judgment, decree or order.
(ii) There was some mistake or error apparent on the face of record, which was found in the impugned judgment or order.
(iii) Or for any other sufficient reason, it was necessary to obtain review of the impugned judgment.
5. Applying these conditions to the grounds raised by the learned counsel, we have come to the conclusion that none of these grounds are present to attract the applicability of Rule 1 of Order XLVII of the C.P.C. To the instant case.
(i) For point No. I agitated by the learned counsel, suffice it would be to say that there is no provision in the Supreme Court Rules, 1980, prescribing a period of limitation for the delivery of a judgment. Order X, Rule 1 of the Supreme Court Rules, 1980 enjoins that the Court after hearing the case, shall pronounce judgment in open Court either at once or on some future day, while Order XIX, Rule 6 of the Supreme Court Rules empowers the Court to reverse the judgment but it has bound down the Registrar to notify to the parties concerned of the day appointed by the Court, for the announcement of the judgment reserved by it. So, both these Rules are silent with regard to the period within which the reserved judgment has to be pronounced. It has been left in a given case, upon the discretion of the learned Judges of the Bench, who are to, dictate and deliver the judgment. Keeping in view their priorities and preoccupations, as compared to time period provided in Order XX, rule 1 of the C.P.C., which has bound down the learned trial Court to pronounce judgment after hearing the case, on some future day, but not exceeding 30 days.
Therefore, there being no rule, order or law prescribing time limit for pronouncement of judgment or order, the point raised has lost its significance.
' Although it is not imperative upon the Judges of this Court to pronounce the reserved judgment within a specified period yet it depends upon the nature of the case, work load of the Court and the availability of the time to the Judge, who is to pronounce the impugned order or judgment. We have also to keep in mind that in a case where a judgment has to be authored by one learned Judge and the file along with the judgment has to rotate before the other learned Judges of the Bench, for concurrence or for appending the dissenting judgment, it has to consume some time for its finalization. Seen in this context, the period spent in this case cannot be considered too much requiring the reversal of the judgments on this ground. It has also to be seen in a case as to whether the judgment under review has caused any prejudice to the party due to its delayed pronouncement or not? If no adverse effects have been found due to the long period, having been consumed for the delivery of judgment, it cannot be objected to. In the present case, the learned counsel has failed to point out any flaw or defect having crept into the judgments of the learned Judges of this Court, due to consumption of five months.
(ii) Dismissal of the suit in default, filed by respondent had got no debarring effects upon the plaintiff so as to make his defence on the same grounds as were raised in the previous suit but were not adjudicated upon merits, in another suit instituted by the other party. The consequences of dismissal in default of a suit have itself been noted in Order IX, rule 9 of the C.P.C., by which a plaintiff has been precluded from bringing a fresh suit in respect of the same cause of action, or can file petition for restoration of the said suit dismissed in default of appearance. The consequences above mentioned provided in Order IX, rule 9 of the C.P.C., cannot be extended or stretched so as to include in it the Rule of Estoppel. It must be kept in mind that Rule of Estoppel provides that there must be representation from a party, against whom this rule is to be applied, and on the basis of that representation, the other party must have changed its position to its detriment, which is not the case in hand. It has not been explained by the learned counsel that due to the dismissal of the suit of respondent, any representation was made to the review petitioner and he had changed his position acting upon that representation to his disadvantage. Therefore, the applicability of rule of Estoppel has become doubtful in the circumstances of this case.
(iii) The findings of the learned Single Judge, while deciding the suit were noted in the judgment of that learned Single Judge of the High Court and these findings were also appealed against before the learned Division Bench of that Court, and before this Court, but were upheld by all these Courts, therefore, those findings of facts, concurrently, having been decided by all the learned Courts in unison could not be opened in the review jurisdiction as these were already dealt with exhaustively by these judgments. No error apparent on the face of record has been found warranting interference by us.
(iv) Why discretion should have been exercised in favour of plaintiff, who had come into the Court with unclean hands. All the Courts having held that the receipts were forged, fabricated and were of fake nature, in such case, how the plaintiff could be granted discretionary relief in this favour, rather he must consider himself a fortunate person, who was not imposed with burden of costs etc. Due to filing of the suit based on fake documents, litigating and dragging into litigation, a land lady who to her bad luck, had to face this protracted litigation, mental agony and torture and to spend a huge money to defend the case, since 1972 up-to 2009 in all the Courts.
(v) There was no need to remand the case as two learned Judges of this Court had supported the judgment with sound and cogent reasons while dissenting from the judgment of their third learned brother Judge of the Bench.
6. Accordingly, we have not found a case for review of the impugned judgment, delivered by this Court, on 8-9-2004, which is dismissed with no order as to costs.