' RAJA SAEED AKRAM KHAN, J.--- This review petition has been filed seeking review of the judgment of this Court dated 10.7.2012, through which an appeal filed against the judgment and decree of the High Court dated 16.5.2009, was set aside and the judgment and decree of the Additional District Judge, Mirpur dated 3.3.2006, was restored.
2. After hearing the arguments of the learned counsel for the parties, the review petition was admitted for regular hearing on 27.11.2012.
3. The facts culminating into this review petition are that Muhammad Javed, plaintiff-petitioner, filed a declaratory suit in respect of the land measuring 10 marlas, bearing survey No.681 (old), 944-min (new), khewat No.2, situate in village Sangote, Tehsil and District Mirpur in the Court of Sub-Judge on 11.4.1992, which was dismissed vide order dated 31.8.1998. This order was assailed before the District Judge, Mirpur by filing an appeal which also met the same fate and was dismissed on 19.10.2001. The judgment of the District Judge dated 19.10.2001, was challenged through second appeal before the High Court on 31.12.2001. An application for withdrawal of the appeal was moved, whereupon, the High Court vide its judgment dated 18.11.2003, dismissed the appeal filed by the plaintiff-petitioner.
4. After withdrawal of appeal from the High Court, the plaintiff-petitioner herein filed again a declaratory suit against the defendant-respondents in respect of land mentioned in para No.3, hereinabove in the Court of District Judge, Mirpur, alleging therein that the predecessor of the plaintiff-petitioner permitted the defendant-respondents to reside in the house constructed in the suit land temporarily. The defendants-respondents, herein, while demolishing the house constructed by the predecessor of the plaintiff-petitioner illegally constructed a house in the suit land and denied to except the ownership of the plaintiff-petitioner in respect of the suit land. After necessary proceedings, the District Judge, Mirpur vide its judgment dated 30.3.2006 dismissed the suit filed by the plaintiff-petitioner. Against the aforesaid judgment the predecessor of the plaintiff- petitioner filed an appeal before the High Court, which was accepted by the High Court, vide order dated 16.5.2009. Feeling aggrieved, respondent No.1 filed an appeal before this Court, which was accepted vide impugned judgment dated 10.7.2012. The instant review petition has been filed to assail the legality of the judgment of this Court passed on 10.7.2012.
5. Ch. Muhammad Mumtaz, Advocate, the learned counsel for the plaintiff-petitioner, has argued that this Court while passing the impugned order has lost its sight and has not appreciated the pivotal point of cause of action in the light of the judgment of the learned High Court, which is an error apparent on the face of record. On this point the judgment is needed. He further argued that this Court has also overlooked the important aspect of the case that the doctrine of resjudicata under section 11, Order, II, Rule, 2 of C.P.C., and estoppel were not applicable in the case in hand. He argued that the fresh suit was filed on new cause of action and in the light of the observations made by the District Judge, Mirpur dated 19.10.2001.
6. On the other hand, Ch. Muhammad Anwar, Advocate, the learned counsel for respondents Nos.1 to 2, has strongly opposed the arguments advanced by the learned counsel for the petitioner, while submitting that there is no error apparent on the face of record. The judgment under review is perfect and legal. He contended that all the aspects of the case have already been dealt with and decided by this Court in a comprehensive manner, while delivering the impugned judgment. He further contended that nothing has been overlooked by this Court and the Court has failed to consider any important aspect of the matter while rendering the judgment under review. He maintained that the petitioner failed to substantiate any error apparent on the face of the judgment. He further submitted that it is celebrated principle of law that the review petition cannot be argued like an appeal.
7. We have heard the learned counsel for the petitioner at length and perused the record minutely.
After going through the judgment, we are of the view that the points raised before this Court seeking review of the judgment of this Court has already been dealt with by this Court in paras 7 to 9 of the judgment intelligently, which are reproduced as under:-- "7. Now coming towards the next point, whether the suit was also hit by Order II, rule 2, C.P.C., it would be useful to reproduce rule 2 of Order H, which reads as under:--
2. Suit to include the whole claim.-- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
' Relinquishment of part of claim. ---
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
' Omission to sue for one of several reliefs.--- (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
' Explanation.-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
' Rule 2 of Order II, C.P.C., postulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. However, a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Under sub-rule (2) if a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. The rule enjoins that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect, of the same cause of action and bars, except with the leave of the Court, any subsequent suit in respect of any portion of his claim which the plaintiff omits or intentionally relinquishes in the first suit. In order to completely attract the bar in Order II, C.P.C., to the subsequent suit, three conditions must be fulfilled; firstly, that the previous and the present suit must have arisen out of the same cause of action; secondly, both the suit must be between the same parties or their representatives; and thirdly, that the previous B suit must have been decided on merits. The above said rule is based on the principle that a defendant should not be vexed twice for the same cause. It is penal in nature and precludes the plaintiff to sue for the portion of the claim or for the remedy so omitted. In this regard reliance can be placed on a case titled Abdul Karim and 2 others v. Saadullah Khan and 2 others [PLD 1970 SC 63] in which it has been observed as under:-- "The expression 'cause of action' in Order II, rule 2, C.P.C., means the cause of action for which a suit is brought. In order that the cause of action for the two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regard is to be had to the allegations in the two suits without reference to the defence that may be set up by the defendants."
8. Admittedly, the ground of possession of house was available at the time of filing of first suit but the plaintiff-respondent intentionally omitted the same, therefore, the case of the plaintiff- respondent very much comes under the purview of above said provisions of C.P.C., and the trial Court has rightly applied the same along with section 11 of C.P.C. A plea which could be taken in the first suit cannot be taken in the subsequent suit. Reliance can be placed on a case titled Pardool and 3 others v. Gulzada and others (PLD 1995 SC 410)in which it has been observed as under:- "6. We have heard the learned counsel for the petitioners and perused the record. Admittedly the land in dispute was mortgaged with the respondents somewhere in 1895. Thereafter, .The mortgagees sub-mortgaged it to the petitioners predecessor-in-interest for a period of 60 years.
The respondents in order to redeem the land approached the petitioners but they refused rather they (the petitioners) filed a civil suit in the year 1979 and asked for declaration that they had become owners by prescription being time-barred mortgagee on account of the sub-mortgage in their favour through Mutation No.1289 dated 15.6.1908. However, they were unsuccessful in their efforts up to the Supreme Court of Pakistan. In those proceedings they did not raise the plea which they have raised in the present suit, of which this petition has arisen. Such pleas were available to the petitioners and the failure to raise such pleas in the earlier suits between the parties rightly prevailed with the Courts below in dismissing the petitioners' suit as barred under section 11 read with Order II, rule 2 of C.P. Code. We find no infirmity in the judgment of the learned High Court and refuse to grant leave to appeal. Petition is, accordingly, dismissed."
9. The term 'cause of action' is nowhere defined in the Code of Civil Procedure. Apparently it means, the infringement of a right which furnishes an occasion for the action. The expression 'cause of action' includes every fact which could be necessary for the plaintiff, if traversed to prove in order to support his right to the judgment. This term relates to the facts or allegations which give rise to a claim or right or infringement of right of any plaintiff against certain defendants to enable a Court to grant relief. Reliance can be placed on a case titled Abdul Ghafoor and Brothers, Contractors v.
Natural Food and Beverage (Pvt.) Ltd. And 2 others 2001 YLR 3243 wherein it has been observed as under:--- "... The term 'cause of action' refers to every fact, which if traversed, it should be necessary for the plaintiff to prove in order to support his right to judgment and which, if not proved, gives the defendant a right to judgment and for this purpose, only the facts stated in the plaint are to be considered to determine whether they constitute a cause of action or not? It must be remembered that even a fraction of cause of action is a part of cause of action and therefore, if even a fraction of cause of action accrues within the local limits of jurisdiction of a Court, that Court has the jurisdiction to entertain the suit. Clause (c) of Section 20 of the Code of Civil Procedure is based on broad principle to avoid multiplicity of proceedings and inconvenience to the parties."
' It was further observed in the aforesaid case as under:--- "7. The expression 'cause of action' used in the Code in its general sense, refers to and signifies averment of fact or state of facts, giving rise to a claim, or right of the plaintiff, against the defendant, sufficient to enable a Court in rendering a judgment or to grant relief. It excludes relief sought for and plea of defendant. It may mean facts or allegations, contemplating a claim or right and infringement of a right."
After going through the above said portion of the judgment, the questions raised in this review petition have been answered after assigning solid reasons, while relying upon the judgments delivered by the superior Courts. As this Court has held in a plethora of judgments that this Court while deciding the review petition under section 42-D of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978 cannot go beyond the relevant provisions of law. The review is only permissible when there is an error apparent on the face of the record. The law is very much settled on the point that the review cannot be argued like an appeal. The same cannot be allowed on the ground that a party is dissatisfied from the judgment or another view is possible. In this regard reliance can be placed on a case decided recently, titled Ashfaq Ahmed and others v. Ch. Maqbool Raza and others (Civil Review Petition No.23 of 2012 decided on 10.1.2013) wherein it has been observed as under:--- "14. Here we also like to observe that the review is not meant for rehearing of the appeal rather the same can be reviewed only on the point which has escaped the notice of the Court and it cannot be allowed to be argued like an appeal. The Supreme Court in its review jurisdiction would not sit as a Court of appeal upon its own judgment mainly on the ground that the review petitioner thinks himself to be aggrieved from the judgment under review. The review jurisdiction of the Supreme Court cannot be invoked as a matter of routine to re-hear a case which has already been decided....."
' In another case reported as Sabir Hussain and others v. Muhammad Taj and others [2010 SCR 65], this Court has held as under:--- "7. .... The powers of review are very limited, which are confined only to the extent of errors apparent on the fact of record. What is an error apparent on the fact of record, cannot be defined precisely or exhaustively. Order XLVII, Rule 1, C.P.C. Covers both, a case of review on grounds of mistake or error of fact as well as of law provided it is apparent on the face of record. ...."
In the light of what has been discussed above, the plaintiff-petitioner has failed to make out any case to justify the admission of this review petition. Therefore, finding no force in this review petition the same is dismissed with no order as to