MUHAMMAD NOOR MESKANZAI, C J.---The applicant seeks review of the judgment dated 29th August, 2014 passed in Constitutional Petition No, 764 of 2013 whereby this Court accepted the writ petition by drawing the following conclusion:
6. In our considered opinion since the order passed by the trial Court was in accordance with law, well reasoned and did not suffer from any perversity, impropriety, irregularly and illegality, therefore, the revisional court committed material irregularity by setting aside a valid and legal order. No doubt" the extra ordinary constitutional jurisdiction is rarely exercised but keeping in view the facts and circumstances of this case the petition filed by the petitioner is found competent and maintainable."
2. Learned counsel for the applicant submitted that the permission of amendment granted to the plaintiff was beyond the scope of Order VI, Rule 17, C.P.C., he submitted that the relief claimed by the plaintiff actually changed the complexion of suit and the same could not have been granted in any case. Similarly, to allow plaintiff to mention the description of the property is an other change that is why the revisional court after proper appraisal of record rightly set at naught the order passed by the trial Court. He lastly, submitted that the applicant was not heard when this order was passed by this Court, therefore, he requested for review of order. He placed reliance on the following judgments: i.2005 YLR Lahore 2560 ii.1987 CLC 2227 iii.2006 SCMR 1574 iv. 2010 SCMR 827 Learned counsel for the respondents and petitioners in the main petition i,e, C.P. No, 764 of 2013 vehemently opposed the submissions by submitting that the grounds for review of an order recognized by law have not been pressed into service by the applicant, neither the said grounds are attractable nor available to applicant. He submitted that the trial Court while seized with the matter after proper appraisal of available material and by applying relevant law in its true prospective rightly allowed amendment, however, the revisional Court without applying judicial mind mechanically accepted the revision .petition. Nevertheless, this Court by taking into account the entire factual position and the law applicable on the subject with intent to do justice between the parties accepted the constitutional petition. Lastly, he stated that the application is not competent, therefore, may be dismissed. He placed reliance on the following citations: i.2006 SCMR 1574 ii.2009 YLR Karachi 1016 iii.2001 CLC (SC AJ&K) 946
3. We have considered the arguments so advanced by the learned counsel for the applicant but have not been able to persuade ourselves to subscribe to the learned counsel for multiple reasons.
Firstly, because the powers exercisable under Order XLVII Rule (1) C.P.C. are not unbridled, uncontrolled and unqualified. The jurisdiction can never be transgressed nor the barriers can be crossed. A conscious, deliberate and a reasoned judgment cannot be called in question through the process of review either on the ground of erroneousness of decision or incorrectness of the conclusion arrived at. Secondly, to press into service the provisions of Order XLVII Rule (1) and (2)
C.P.C. an applicant is required to specifically make out a case within the encompass of rules (1) and (2) of Order XLVII, C.P.C., establishing that the judgment suffers from a patent error of law or fact apparent on the face of record followed by material consequences on the merits of the case.
Thirdly, philosophy of finality attached to the judgments always remains the paramount consideration with the aim to put an end to litigation, as the principle of finality firmly stands embedded in the judicial system and review is an exception to this fundamental principle, therefore, unless the circumstances justifying the application of Rules (1) and (2) of C.P.C., exist, there remains no occasion for review of an order/judgment. Fourthly, the error of fact or law should be certain, evident, patent and apparent on the face of the record and should not require any elaborate argument or extraneous matter to show its incorrectness. Fifthly, an attempt to travel beyond the record in order to show the judgment is erroneous or incorrect can never be a ground for review of the judgment because if a court applies its judicial mind to a point of fact or law and draws a conclusion after conscientious reasoning such a conclusion even if erroneous it does not justify the maintainability of review application as it would be a case of appeal. Looking the case of applicant in this perspective, it can safely be concluded that the learned counsel did not get down to the brass-tacks of review as contained in and contemplated by the provisions of Order XLVII, Rule (1) and (2), C.P.C., the learned counsel failed to point out any error or mistake of fact or law even implied in nature what to speak of an error apparent on the face of record. Now adverting to last 'submission of the learned counsel that though his name appears in the main order but he was not heard, so without prejudice to preceding paras, the case was viewed, weighed and considered from this angle as well. The record reveals that the amendment was sought and accorded on two fold ground (a) to lessen and reduce the area of disputed property and (b) identify the reduced area by mentioning the boundaries of the disputed property. So far permission on the first ground is concerned, no doubt a plaintiff may reduce, restrict or lessen his claim i,e, withdraw from a large area or amount and confine the claim to a smaller area or lesser amount. For instance, a person files a suit for rupees 10,000 and if he wishes to withdraw his claim to the extent of Rs,5,000 he may do so, or, if the evidence produced by him/her proves the claim to the extent of Rs,5,000/- the suit shall be decreed by the court to such extent. So, legally there is no hitch, impediment embargo or restriction on a plaintiff for lessening, reducing or restricting his/her claim, the view finds support from a judgment titled as Akhtar Ali and others v. Sh. Muhammad lqbal and others reported in 1987 CLC 2227, relevant para whereof is reproduced herein below: "As is clear from the discussion above, an area of 3 Kanals which is described as Ghair Mumkin Abadi which was in possession of petitioners was also given to them in consolidation proceedings therefore, the respondents if amended the plaint to restrict the suit for the remaining land measuring 6 Kanals 7 Marlas, was not by itself a factor to non-suit them. They have proved the case through documentary as well as oral evidence which has been corroborated by evidence of petitioners themselves as discussed above. The petitioners miserably failed to prove even their mere possession over the suit land much less adverse possession maturing into ownership."
4. So far as the permission on the second ground is concerned, in fact it is a legal requirement as contemplated by Order VII, Rule 3 C.P.C. which obliges the plaintiff to mention the description of the property to sufficiently identify the disputed property either by boundaries or numbers in a record of settlement of survey. In this part. of the country mostly the parties prefer to mention boundaries as the witnesses can conveniently describe the property by boundaries.
Moreover, the law stands settled on the subject that there should be no ambiguity and difficulty in locating and determining the disputed property. To ascertain the disputed property with exactitude the court must make all efforts and while performing this duty, the court may call the parties to file better statements, amend the plaint and even require the parties to produce such evidence. By holding the view, we are fortified by the dictum laid down by, the Hon'ble Supreme. Court in its judgment titled as 'United Bank of India Ltd. v. Azirannessa Bewa alias Azizannessa Bewa' reported in PLD 1965 Supreme Court 274, relevant para whereof is reproduced herein below: "If the learned Judges felt there was serious difficulty, in locating the land, without the aid of plans, a proper course may well have been to require the parties to present such evidence. The case was clearly one in which there was a duty upon the High Court to reach a definite conclusion as to the identity of the property in suit, for a continuous series of transactions had taken place between the proprietors and the Bhoumicks in respect of precisely four kattahs of land of which the jama was precisely given, and at least three boundaries were equally precisely indicated, and the case was not one which could be allowed to fail on a mere conclusion of difficulty in locating the land. As we have said earlier, an ambiguity was created by the circumstance that in Schedule kha to the plaint while the extent of the land as given by boundaries covered the full 10 kattahs of land to which the defendant's certificate related, yet what was sought was mere 4 kattaths "within the said boundaries" There were ample indications of a firm character on the record enabling the Court to identify the suit land as the piece of land covered by the kabullyat of the 7th June 1937."
5. Last but not the least, to ask for an amendment is an inherent and vested right of a plaintiff subject to two conditions i,e, (i) the proposed amendment shall not alter and change the character and complexion of the suit and (ii) all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties and this right is governed by the provisions of Order VI, Rule 17, C.P.C. Legally, any defect in the form of a suit shall not culminate in dismissal of suit because all the rules of procedure are meant to foster the cause of justice. Similarly, the court is ' and to consider the request of amendment in a broader perspective and remain quite liberal and flexible while exercising jurisdiction under Order VI, Rule 17, C.P.C. The latter portion of the Order VI, Rule 17, C.P.C. costs a duty upon court to grant permission for amendment as a matter of right if it is essential and inevitable for the resolution of real controversy and just decision of the case. In some cases the court has exercised suo motu jurisdiction even without any formal written request of plaintiff reliance is placed on a case law titled as 'Javed lqbal v. Abdul Aziz and another' reported in PLD 2006 SC 66, relevant operative portion is at page 71 [Head Note A], besides this para following observations have also been made:
13. On ,its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available and not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the Courts below failed to take into account the legal impact and effect of the provisions contained in section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908 providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, rule 17, Order VII, rule 7 and section 151, C.P.C., rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revisional jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary the judgment of the High Court in the peculiar facts and circumstances of the case, on the face of the record, appears to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is, therefore, fully justified and not open to any exception." We have gone through the citations referred to and relied upon by the learned counsel for the applicant but the facts are distinguishable, therefore, the cases so referred do not render any help to the case of applicant. In view of what has been discussed above, we do not find any substance in the application; therefore, the same is dismissed being devoid of merits. Parties are left to bear their own costs.