' ABDUL RASOOL MEMON, J.---This order will dispose of two C.M.As., one is filed by the petitioner for review of order dated 20-9-2012 and the other is an application under section 5 of Limitation Act for condonation of delay in filing review application.
2. Facts necessary for disposal of these application are that order dated 19-8-2009 passed in Rent Case No,31/2007 by the IXth Rent Controller Karachi (East) was affirmed by the Vth Additional District Judge Karachi (East) vide order dated 18-4-2011 passed in F.R.A. No,213/2009 whereby the petitioner was ordered to be ejected from the premises in-question on the ground of default in payment of rent, both orders were challenged in this Constitution Petition which was dismissed by this court by order dated 5-10-2012. This review petition has been filed against the order 20-9-2012.
In fact no any order was passed on 20-9-2012 but on same date final order was reserved. The main ground raised for review of the order is that the amount of interest on outstanding amount of sale consideration in between the petitioner and respondent was not treated as rent by both the lower courts, so also escaped from this court besides the petitioner has claimed right of Haq-e-Shifa. For condonation of delay in filing review petition, C.M.A. No,179 of 2014 has also been filed on the ground that the petitioner was kept in dark position by his counsel who did not attend the proceedings.
3. In support of his contentions learned counsel for the petitioner has submitted that review could be made for any sufficient reason including the mis-appreciation regarding true circumstances and further submitted that the petitioner had paid Rs,5000 every month to the respondent No,3 being the rent, which was not considered in the case, he has placed reliance on following cases:--
(1) PLD 1990 Karachi 1 BALAGAMWALA OIL MILLS (Pvt.) LTD. v. SHAKARCHI TRADING A.G. And 2 others
(2) 2005 CLC 884 AMAR LAL v. PRINCIPAL NISHTAR MEDICAL COLLEGE MULTAN and 6 others. `4. Conversely, learned counsel for the respondent No,3 has contended that review application is hopelessly time barred within meaning of Article 173 of the Limitation Act, and no plausible explanation has been furnished for condonation of such long delay. While rebutting the contention regarding the review of the order in question, he has contended that no mistake or error is pointed out in the order warranting review of the order. In support of his contentions he has relied up on the following case-laws:--
(1) PLD 1976 Karachi 811 Mst. MAH BIBI v. Mst. HAMEEDA BEGUM.
(2) 1989 SCMR 479 MUHAMMAD SHAFI v. Mst. RAZIA GHAFOOR and 3 others.
(3) PLD 1981 SC 200 ABDUL SHAHID and another v. Sh. AZIM BAKHSH.
(4) PLD 1973 Karachi 503 MUHAMMAD ISMAIL v. Mst. ZUBEIDA KHATOON.
(5) 2002 SCMR 1336 MUHAMMAD RAMZAN v. LAHORE DEVELOPMENT AUTHORITY, LAHORE.
(6) PLD 1997 SC 865 Mian RAFIQ SAIGOL and another v. BANK OF CREDIT and COMMERCE INTERNATIONAL (OVERSEAS) LTD. And another.
5. I have given my careful consideration to the arguments advanced at bar and have gone through order dated 5-10-2012 passed by this court. It is settled law that review proceedings cannot partake re-hearing of the decided case. It is yet another principle of law that if the court has taken a conscious and a deliberate decision on a point of law or fact while disposing of a petition or an appeal: review of such judgment or order cannot be obtained on the ground that the court took an erroneous view or that another view on re-consideration is possible, even it cannot be allowed on the ground of discovery of some new material. This dictum is laid down by the apex court in the case of Mian Rafiq Saigol and another (supra). The contention of the petitioner's counsel regarding the payment of amount of Rs,5000 as profit instead of rent has already been discussed and decided in para-5 of the main order wherein this controversy was decided on the basis of the material and evidence available on the record. So far the ground of pre-emption is concerned, though it was available to the petitioners but was not taken in the first round of petition, therefore, the same cannot be raised in review proceedings.
6.- Admittedly the possession of the demised premises has already been handed over to the respondents and this review petition seems to be an attack to frustrate the order passed in execution application. Moreover, the application under section 114 has been filed after 300 days in contravention of Article 173 of the Limitation Act, which provides period of 90 days, for review of any order/judgment. To make this petition maintainable each day's delay is to be explained by the petitioner but has not so. Moreover, mere negligence of a counsel cannot be treated as a ground for condonation of delay, as such, the contention raised by the learned counsel for the petitioner has no legs to stand consequently, in view of the case law relied by the learned counsel for the respondent No,3, the applications bearing Review No,02/2014 and C.M.A No, 179/2014 find no merit stands dismissed accordingly.