This review petition has been filed by the petitioner for reviewing the order of this Court dated 18.10.2010 vide which his revision petition was dismissed being without merit.
2. Precisely facts are that a suit was filed in the trial Court by the respondent/plaintiff for possession and permanent injunction against the petitioner/defendant, which was decreed vide judgment/ decree dated 26.01.2003. The respondent/defendant filed an appeal before the appellate Court, which was also dismissed and the impugned judgment/decree of the trial Court, was maintained vide judgment/ decree dated 21.05.2005. Subsequently both the judgments/decrees were impugned through Revision Petition No. 174 of 2005 before this Court and after hearing arguments, it was dismissed on 18.10.2010. Now through the review petition in hand the petitioner has prayed for review of the above mentioned judgment of this Court.
3. Learned counsel for the petitioner submitted that this Court vide judgment dated 18.10.2010 dismissed the revision petition of the petitioner which needs review on the ground that both the lower Courts wrongly assumed the jurisdiction, Court may review its judgment on the grounds available in Order XLVII, Rule 1 of CPC and 3rdly the local commission has not inspected the spot nor made any measurement of the property and he requested that on this Count the order of this Court may be reviewed.
4. Learned counsel for respondent on the contrary submitted that 3rd ground agitated by learned counsel for petitioner for review cannot be considered because if it is accepted it would reopen the case which is not allowed under Order XLVII, Rule 1 of CPC.
5. Keeping in view the above arguments and record it is to be examined that the grounds agitated by learned counsel for the petitioner for the purpose of reviewing the order of this Court are within the scope of Order XLVII, Rule 1 of CPC or not. The normal practice and procedure is that for review, it is necessary for the petitioner to agitate the grounds which pertains to the mistake or error on the face of record or discovery of any new facts which was not available at the time of order or any ground/reason available in terms of Order XLVII, Rule 1 of CPC. The scope of review otherwise is very limited. It may be exercised in the event of discovery of new matter which was not within the knowledge of the petitioner or could not be produced by him at the time of making order or if there is any mistake apparent on the face of record.
6. I have to see whether the three grounds agitated by learned counsel for the petitioner in his arguments as well as in his review petition are within the scope of the review or not. The first ground is that two Courts below have no jurisdiction. This point was available even at the time of filing revision petition before this Court and remained available till the decision of the petition. It was not a hidden fact and was within the knowledge of the petitioner. As stated earlier the suit filed by respondent/plaintiff was for possession as owner and permanent injunction on the ground that some of the disputed land was encroached upon by the petitioner/defendant and for that purpose a commission was appointed. It was found by the Court that encroachment was made by petitioner/defendant, therefore, decree was granted. In my opinion there was no jurisdictional error in the judgments/decrees of the both the lower Courts. Moreover, This point cannot be agitated at this stage while applying for review it is beyond the scope of the review. Moreover, this point relates to the judgments of two Courts below and nothing to do with the order sought to be reviewed.
7. The next ground agitated by learned counsel for petitioner is relating to Order XLVII, Rule 1 of CPC.
There is no denial to this preposition because the above referred Order of the CPC pertains to the grounds for review, which includes the discovery of new fact which was not in the knowledge of the petitioner at the time of announcement of judgment, or mistake apparent on the face of record., The review petition of petitioner is being examined keeping in view the provision of the said order.
8. The 3rd ground is about the non-inspection and measurement of the suit property by two local commissions. It is again a ground related to merits and if it, is considered and allowed it would amount to reopening of the case which is not allowed. A party seeking review cannot be allowed to convert the review petition into appeal. I would rely upon the case titled Abdul Hakeern and others versus Khalid Wazir reported in 2003 SCM R 1501, wherein it is held that: "Order 47, Rule 1 of the C.P.C. clearly lays down that review, proceedings cannot partake re-hearing of a decided case. Review also cannot he allowed on the ground of discovery of some new material if such material was available at the time of hearing of the trial, the appeal or the revision, as the case may be. A ground not urged or raised at such earlier stages cannot be allowed to be raised in review proceedings."
9. Similar view has been taken in case titled Sh. Mehdi Hassan versus Province of Punjab through Member, Board of Revenue and 5 others reported in 2007 SCM R 755, wherein it is observed that: We having heard the learned counsel for the parties at length and perused the record with their assistance have found that the contentions raised by learned counsel in support of this petition have been exhaustively dealt with in the . judgment under review. This is settled law that the points already raised and considered before the Court, cannot be re-agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law. The learned counsel has not been able to point out any such error of law in the judgment or interference in the review jurisdiction."
10.In case of Haji Muhammad Boota and others versus Member (Revenue) BOR and others reported in 2010 SCM R 1049, the same principle has been laid down, which reads below:-- "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 review cannot be granted on the ground that certain facts require reappraisement by Supreme Court.
It is further held that:-- "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."
11.The above case laws have established that in case of review no appraisal of evidence and re- opening of case are permitted. Similarly record is also not allowed to be re-appraised in the case in hand as discussed above the petitioner wants to re-appraise the evidence on record and also to re-open the question of jurisdiction of two Courts below and to give decision regarding two local commissions on whose reports the two Courts below were based. All these factors relate to the merits and if allowed it will amount to re-opening of a case already decided by competent forum.
Moreover, it amounts to converting the review petition into appeal.
12.Moreover, this Court, in impugned order, has already dealt with the grounds agitated in review, and gave its decision in comprehensive manner.
13.The petitioner has failed to establish any mistake on record or discovery of new fact not available at the time of judgment or any other ground recognized by the Order XLVII Rule 1 of CPC and resultantly, instant review petition is dismissed.