MUHAMMAD HUMAYON KHAN, J.--- There are two review applications namely (i) CMA No,902/2016 filed by the respondent No,2 and (ii) CMA No,1051/2016 filed by the applicant for review of my Judgment dated 03.10.2016. I, therefore, intend to decide both the said review applications by this common order.
2. The respondent No,2 has filed review application under Section 114 read with Section 151, C.P.C.
(CMA No,902/2016) on the following grounds:-
(i) Both the respondent No,1 and applicant have not claimed possession and therefore both the Courts below had exceeded their jurisdiction to grant relief of possession although the possession is with the respondent No,2;
(ii) Relief of possession is incidental to the main relief of specific performance;
(iii) Revision application against the concurrent findings of both the Courts below is not competent;
(iv) The then advocate for the respondent No,2 did not guide properly to file appeal against the Judgment and Decree passed by the learned Senior Civil Judge, therefore, the respondent No,2 could not file appeal or revision application due to unawareness of the law.
3. The applicant has also filed review application under Section 114, C.P.C. (CMA No,1051/2016) on the following grounds:-
(i) Impugned Order based on erroneous assumption of facts and law;
(ii) Impugned Order is without adverting to the provisions of law;
(iii) Impugned Order is result of the departure from undisputed construction of law;
(iv) Impugned Order is outcome of misreading of evidence and other material on the record;
(v) Error of facts and law are self-evident and have material bearing on the fate of the case but not considered by the Court;
(vi) Patent error floating on the face of the record has not been noticed and considered by the Court;
(vii) Though the respondent No,1 did not pray in the plaint for the possession of the suit land and had insisted upon in the plaint and in his evidence that he himself was in possession, then, it is beyond comprehension to award him decree of possession against the applicant;
(viii) Grant of decree of possession against the applicant is an acknowledgment of possession of the applicant over the suit land as per defence pleaded in written statement;
(ix) Applicant's possession over the suit land is old, permissive and has never been questioned in any competent Court of law;
(x) Applicant is not tenant or agent of respondent No,2, he is in possession of the suit land of his own right; (xi) Applicant has every right to remain in possession unless evicted through due process of law under section 8 of the Specific Relief Act through decree of Court;
(xii) Applicant has been totally deprived of his right of trial, for recovery of possession, as required under the law;
(xiii) Case-law' relied upon in the impugned Judgment are totally based on different circumstances and have no bearing on peculiar circumstances of present case;
(xiv) Impugned Judgment is contrary to the admitted facts on record and is against the law.
4. I have heard the learned counsel for the applicant and respondent No,2 and perused the material available on record.
5. Firstly, I will take up CMA No, 902/2016 filed by the respondent No,2. In support of this review application, the learned counsel for the respondent No,2 repeated the same grounds which were argued at the time of hearing the main revision application and pleaded in the review application.
The learned counsel for the respondent No,2 has failed to point out any error in my Judgment.
Apart from this, this review application is misconceived and not maintainable in law.
6. The provisions of Order XLVII, Rule 3, C.P.C. provides that:- "The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review."
The provisions as provided in Rule 3 of Order XLVII, C.P.C. are mandatory and hence the review application should be drafted in the manner in which appeal is drafted. Since this review application of the respondent No,2 (CMA No,902/2016) is not drafted in the form as provided in Order XLVII, Rule 3, C.P.C., the same is not maintainable in law.
7. It is a well settled principle of law that where a particular procedure is prescribed for doing something, that thing must be done according to that procedure, otherwise, the entire proceedings would be illegal or irregular. Reliance can be placed upon the cases of (i) Khyber Tractors (Pvt.) Ltd. through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad (PLD 2005 SC 842), (ii) Hafeezullah and others' v. Abdul Latif and others (PLD 2002 Karachi 457), (iii)
Muhammad Idrees v. Collector of Customs and others (PLD 2002 Karachi 60) and (iv) Imran Saeed v. The State (2001 PCr.LJ (Peshawar) 1365).
8. It is also well settled principle of law that the Courts while interpreting the law will not read anything, which is not provided in the law, which has to be interpreted as it stands in the Statute Book. Reliance can be placed upon the case of Qamar ul Islam and another v. District and Sessions Judge/Chairman Election Tribunal, Nawabshah and others (PLD 2005 Kar. 591).
9. There is another factor for consideration that the respondent No,2 has affixed Court fee of Rs,5/- only, whereas, the respondent No,2 was required to pay Court fee of Rs,7500/- upon review application as provided in Item 5 of Schedule-I of Court Fees Act, 1870, which, for the convenient, is re-produced as under:- "5. Application for review of judgment, if presented before the ninetieth day from the date of the decree.One-half of the fee leviable on the plaint or memorandum of appeal."
10.In view of the above discussion, CMA No,902/2016 (review application of the respondent No,2) is dismissed being misconceived and not maintainable in law.
11.Now, I will take up C.M.A. No,105/2016 filed by the applicant. In support of this review application, the learned counsel for the applicant repeated the same grounds which were argued at the time of hearing the main revision application and pleaded in the review application. The learned counsel for the applicant has failed to point out any error in my Judgment or to show any misinterpretation of law. However, the learned counsel for the applicant relied upon the cases of (i)
Syed Arif Shah v. Abdul Hakeena Qureshi (PLD 1991 Supreme Court 905) and (ii) Sh. Mehdi Hassan v.
Province of Punjab through Member, Board of Revenue and 5 others (2007 SCMR 755).
12. Section 114, C.P.C. enumerates the general power of : Court to review its order or judgment and is subject to the provisions of Order XLVII, C.P.C. The following principles of law have been settled to decide the review application.
(i) Every order or judgment pronounced by the Court is _presumed to be a considered, solemn and final decision on all points arising out of the case;
(ii) If the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not lie;
(iii) The fact the view canvassed in the review petition is more reasonable than the view found favour with the Court in the judgment/order of which review is sought, is not sufficient to sustain a review petition;
(iv) Simpliciter the factum that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of a review petition would lie;
(v) Simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same but if the conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;
(vi) If the error in the judgment/order is so manifest and is floating. on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review petition would lie;
(vii) The power of review cannot be invoked as a routine matter to re-hear a case which has already been decided;
(viii) Review is not a re-hearing of the main case and hence rearguing a case fell outside the scope of review;
(ix) The scope of review is very limited and it cannot be used as a substitute for a regular appeal.
Reliance can be placed upon the following case-laws:-
(i) Abdul Ghaffar-Abdul Rehman and others v2 Asghar Ali and others (PLD 1998 Supreme Court 363);
(ii) Muhammad Ramzan v. Lahore Development Authority, Lahore (2002 SCMR 1336);
(iii) Abdul Rauf and others v. Qutab Khan and others (2006 SCMR 1574);
(iv) Malik Muhammad Mumtaz Qadri v. The State (PLD 2016 Supreme Court 146);
(v) Government of Punjab and others v. Aamir Zahoor-ul-Haq and others (PLD 2016 Supreme Court 421);
(vi) Engr. Inam Ahmad Osmani v. Federation of Pakistan and others (2013 MLD (Sindh) ) 1132);
(vii) Dr. Masroor Ahmed Zai v. Province of Sindh through Chief Secretary and 2 others (2016 CLC (Sindh) 1861); (viii) Maqbool Hussain alias Jamala Dogar v. Federation of Pakistan and others (2016 CLC (Lahore)
219);
(ix) Nazakat Hussain Shah and 5 others v. Muhammad All and 3 others (2016 MLD (Lahore) 1651);
(x) Shabir Ahmad Zaffar v. Member Board of Revenue (Consolidation) and others (2016 CLC (Lahore) 1655 ):
(xi) Mst. Rani Fareeda v. Tahir Sateem (2016 MLD (Lahore) 17", );
(xii) Mst. Gul Sofia Bibi and another v. Al-Hal Muhammad Nazir and 2 others (2016 CLC Peshawar)
10).
13. However, the learned counsel for the applicant relied upon the cases of (i) Syed Arif Shah v.
Abdul Hekeein Qureshi (PLD 1991 Supreme Court 905) and (ii) Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others (2007 SCMR 755), which do not support the case of the applicant.
14. In the case of Syed Arif Shah v. Abdul Hakeem Qureshi reported in PLD 1991 Supreme Court 905, it has been held that:- "The scope of a review is very limited. It cannot be used as a substitute for regular appeal, which is competent on a question of fact and law. The mere fact that a trial Court has taken an erroneous 'view on the question of fact or on the question of law, would not attract the review jurisdiction, which grounds are eminently amenable in an appeal."
15. In the case of Sh. Mehdi Hassan v. Province of punjob through Member, Board of Revenue and 5 others reported in 2007 SCMR 755, it has been held 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 the 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 event 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 am 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."
16. The learned counsel for the applicant has failed to point out any error of law or fact in my Judgment or to show any misinterpretation of law or to show that I have over-looked important aspect of the matter. The entire arguments of the learned counsel for the applicant were on the merits of the case which I have already decided in my judgment and accordingly the power of review cannot be invoked to re-hear the matter which has already been decided by me.
17.In view of the above discussion, CMA No,1051/2016 (review application of the applicant) is dismissed being misconceived, along with CMA No,1052/2016 (stay application).