Sayed Zahid Hussain, J.--Order passed by the learned Division Bench of the Lahore High Court, Rawalpindi Bench whereby the Review Petition was dismissed on 16.4.2008 is sought to be assailed through this petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, which has the under mentioned background.
2. The petitioners had brought a declaratory suit that they were owners in possession of the suit land and for injunction that the defendant, now represented by the respondents, in collusion with the Revenue Authorities got the entries in the revenue record changed unauthorizedly to show them as tenants. The suit was tried and was dismissed by the learned Trial Judge, Pindigheb on 28.2.1988. Against that appeal preferred by them was dismissed by the learned Additional District Judge, Attock on 10.1.1989. Then revision petition u/S. 115 CPC (CR No, 20-D/90) was filed in the Lahore High Court, which was dismissed on 12.5.1999. Against that judgment Review (RA No, 4- C/1999) was filed, which as mentioned above was dismissed on 16.4.2008. Hence this petition, in which notice was issued to the other side.
3. At the outset Mr. Gul Zarin Kiyani, Sr.ASC the learned counsel for the respondents has brought to our notice Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another (PLD 1980 SC 198), Ghulam Nabi and 5 others v. Rashid (PLD 2000 SC 63) and Collector Sales Tax (East), Karachi v.
Customs, Excise and Sales Tax Appellate Tribunal, Karachi (2008 SCM R 435) to contend that since the main judgment of the High Court dated 12.5.1999 had not been challenged; the petition does riot lie in view of the principle laid down in the precedent cases and that even the present petition is barred by time.
4. Malik Shahzad Ahmed Khan, ASC the learned counsel for the petitioners contends that as the long standing revenue entries could not be changed by the Revenue Officials, this patent illegality can be taken notice by this Court disregarding the limitation or any other technical hurdle in the matter.
5. It may be mentioned here that the order of the High Court dated 16.4.2008 passed in review application (refusing review) has only been assailed before this Court and not the judgment whereby the revision petition was dismissed. The dismissal of the review petition is based on sound judicial principles governing review. The learned counsel however has endevoured to show that since the judgment of the High Court dated 12.5.1999 (where against review had been filed) and the judgments of the lower Courts were void, no question of limitation would rise in the matter. Such a contention has not persuaded us to be contenanced as the suit was decided by the trial Court, as also the appeal and revision after due trial and contest. This full fledged contested litigation right from the lowest forum of trial Court to the High Court was dealt with and decided by the Courts having jurisdiction in the matter. Their adjudication of the matter can not be termed as void or without jurisdiction to over come the question of limitation. At this juncture reference to Ghulam Hussain and another v. Kanwar Ashiq Ali Khan and another (supra) may be made wherein the petition had been filed against the order of the High Court whereby the High Court had refused to review its previous judgment. The matter was dealt with by the Court as follows; "This may be so but while seeking leave to appeal against order refusing to review the main previous order, in fact the object of the petitioner is to seek vacation of the said previous order which by efflux of time had become final. The fact that in review the Court further affirmed the aforesaid order is immaterial inasmuch as a refusal to review the same will not give a fresh period of limitation to challenge it. In this peculiar situation therefore when the previous order has become binding on the petitioners, they cannot be allowed to bypass it by simply pleading that the present petition is against order refusing to review the same because while stating so their intention is to point out errors and mistakes in the basic order which were sought to be removed through a review application but which failed. There may be cases where for instance petition of review may be refused merely for want of jurisdiction in which of course a petition may lie but will be on ground of refusing to exercise jurisdiction vested in a Court by law on the ground that it has no jurisdiction whereas in fact and in law it had such jurisdiction. In those cases a petition against refusal to review will merits but only against the order in review itself. The position in the instant case is however different. Here the question is not of lack of jurisdiction of the High Court to entertain review, but after entertaining it refusing the same on the ground that no case for review on merits exists. Such a decision will essentially compel a suitor to challenge the previous order itself to point out the mistakes allegedly existing therein, which exercise obviously cannot be resorted to if the period of limitation for challenging the main previous order has run out and because you cannot do that indirectly which you cannot do directly." (portions underlined by me for emphasis) The petition was accordingly dismissed without expressing any view on merits of the matter. In Ghulam Nabi's case (supra) the above view was followed. In Collector Sales Tax's case (supra) this Court while following Ghulam Hussain's case (supra) went further to observe that "Period spent for pursuing review petition is not liable to exclusion while reckoning the period of limitation for assailing the basic judgment, dated 27.9.2002. For all intents and purposes, object behind filing this petition is to call in question the correctness and validity of the initial judgment, which has attained finality by efflux of a long period and a valuable right accrued in favour of the private respondent, which cannot be lightly disturbed and destroyed for the simple reason that the petition has been negligent in prosecuting his remedy." Nothing has been brought to our notice to the contrary nor any sustainable ground has been urged before us to deviate from above view of the Court. The principle so stated consistently by this Court is fully attracted to the instant case.
6. For the above reasons, this petition is dismissed without expressing any view as to the merits of the matter.