SULTAN TANVIR AHMAD, J:- Through present review application vires of order dated 27-03-2019 passed by learned Single Judge in Civil Revision No.631-D of 2006 has been challenged.
2. Per contents of the Civil Revision, the applicant filed suit for specific performance on the basis of oral agreement, with respect to land originally went in his possession being lessee of Mst. Farrukh Batool (respondent), who filed the written statement and contested the suit, raising legal and factual objections. The parties led their respective evidence both, oral as well as documentary and learned Trial Court, while giving issue-wise findings, vide judgment dated 17-03-2005 dismissed the suit. Applicant filed appeal which was also dismissed with special costs by learned Appellate Court vide judgment dated 19-07-2006 and while concurring the findings of learned Trial Court, inter alia, following observation was passed by learned Appellate Court:- "Learned trial court has rightly held that the PWs are closely related to each other and they have failed to prove any existence of transaction in dispute and payment of earnest money to the defendant. The learned trail Court has also rightly observed that the plaintiffs had instituted this suit to prolong their possession over the land in dispute as tenant."
(Emphasis Supplied)
The aforesaid judgments were assailed before this Court, through Civil Revision No.631-D of 2006, which was dismissed vide order dated 27-03-2019, impugned in the present review application.
3. Learned counsel for petitioner has submitted that revision petitioner had filed a civil miscellaneous application No.1946-C of 2018 under Order XLI Rule 27 read with section 151 of the Code of Civil Procedure, 1908, on 18-09- 2018, which was not decided before or at the time of deciding the main case and failure to decide the said miscellaneous application has vitiated the impugned order dated 27-03-2019. Before answering this contention, we would like to discuss this civil miscellaneous application and implication of its non-disposal.
4. The application in question is for producing additional evidence and applicant sought to produce witness of oral agreement namely Mst. Rahmat Bibi wife of Ghulam Shabbir and one Khawaja Arshad, Local Commissioner . The application was filed after about one and half decade of the evidence stage, when the applicant had ample chance to produce the witnesses. Both the learned Courts below have concurrently observed that Mst. Rehmat Bibi was only independent witness and she was deliberately avoided to be produced during the trial.
5. Not just the aforesaid application is filed at highly belated stage to fill up the lacuna , at the same time the reading of record reveals that this application has apparently been used as a tool to further prolong the proceedings in revision petition. Vide order dated 04-09-2018 this Court took serious notice of delaying tactics, which were being adopted after obtaining interim relief, in the following manner:- "2. Present petitioner instituted suit agains t the lady/respondent on the basis of oral agreement in 2003 and since then he is enjoying possession of the disputed property despite the fact that suit was concurrently dismissed by the two Courts below . This Civil Revision is lingering on for the last twelve years. The case diary maintained by this Court reflects that petitioner obtained status quo by filing C.M. during the pendency of this Civil Revision and till today he or his counsel did not cooperate with the Court for its disposal."
6. Soon after the above observations, application under Order XLI, Rule 27 of the Code of Civil Procedure, 1908, was filed with the obvious object of further delay and matter was yet prolonged for another six months, leaving this Court with no option but to finally decid e the revision petition on the basis of record and hearing other side.
Undoubtedly , the power to admit evidence can be used at any stage(s) of appeal or even revision but this discretion only empowers the Court to do complete justice in genuine cases and not to patch up the weaker parts of cases and to entertain applications at belated stage causing further delay in conclusion of litigation, at the cost of other party . Reliance in this regard can be placed on "Rana ABDUL ALEEM KHAN versus IDARA NATIONAL INDUSTRIAL CO-OPERA TIOIVE FINANCE CORPORA TION DEFUNCT through Chairman Punjab Cooperative Board for Liquidation, Lahore and another" (2016 SCMR 2067 ), wherein it has been held, as follows:- "We are afraid that the power under the provisions of Order XLI, Rule 27 of the C.P.C. for allowing additional evidence available is not unfettered nor does the Appellate Court has the discretion to allow additional evidence per its own caprice, rather it (discretion) is structured/limited by the factors enunciated in the said provisions of law i.e., where the Court from whose decree the appeal has been preferred has refused to admit any evidence which it ought to have admit. In this case, the petitioner never moved the Courts below to produce any evidence in the nature of examination of the Postman which was declined ; that the Appellate Court requires any document or examination of witnesses enabling it to pronounce its judgment does not mean that the Court shall provide a delinquent with a chance to make up for his omission and fill up the lacuna of his case and allow additional evidence particularly in the circumstances when neither in the grounds of appeal a case for additional evidence has been set out nor any independent formal application has been moved for the purposes of producing additional evidence."
(Emphasis Supplied)
7. We are of considered view that purpor ted pending application even if decided would not have resulted into any different conclusion of the revision petition . Now coming to the question raised by learned counsel of the petitioner , vis-a-vis the rule that failure to decide the miscellaneous application vitiates the judgment or decision of the main case, the Courts in discharge of their legal and judicial duties, are emphatically required to decide the miscellaneous applications before or at the time of final disposal of the lis and omission to do so can ipso facto nullify the decision in the main case. However, in performance of such function, it is also the responsibility of the learned appellate or revisional Courts or the learned higher foras to keep in mind the object of filing such unattended application, its relevance and any bearing on the merits of the case. When miscellaneous application is totally irrelevant and/or does not have any bearing on the merits of the case as well as when unattended application, on face of it, is an attempt by a delinquent to cause delay by misuse of process of law, the non-disposal of miscellaneous application alone, cannot be a reason to interfere with a judgment, which otherwise is as per the law and is based on sound reasoning. Any other approach to aforesaid rule can aid the delay in justice and wastage of time in fruitless exercise but at the same time it will encourage delinq uents to misuse the process by filing extraneous applications. Somewha t in similar situations the Courts in cases titled "AIJAZ MAHMOOD versus Messrs HONGKONG AND SHANGHAI BANKING CORPORA TION" (2014 CLD 1313 ), "KAKI verus AQLEEMUN and 3 others" (2015 CLD 290), and "Mst. MAIRAJ BIBI & 4 others versus MUHAMMAD SHAFIQUE through L.Rs. and others" (PLD 2020 Lahore 888) have already observed that non-disposal of miscellaneous applications having no significance or effect on merits of the main case, is not always fatal. It will be beneficial to reproduce the relevant part of judgment in Miraj Bibi case ( Supra ):- "It is not an inflexible rule that in all event ualities non-decision of an application would affect the merits of the case.
When it is found that the contents of application are superfluous, failure to pass an order on such application shall not cast aspersions on the proceedings of the Court."
8. Even otherwise, to bring the case within the ambit of Order XLI, Rule 1 of the Code of Civil Procedure, 1908, it is incumbent upon the applicant to establish that the mistake apparent on the face of record, if considered will effect decree or order as well as error must be so manifest that no Court could permit it to remain on record. The Court cannot commence to hear the matter as an appeal against its own judgment, which would to akin to infringing the principle of finality firmly embodied in our judicial system as well as Order XX Rule 3 of the Code of Civil Procedure, 1908. Reliance in this regard can be placed on "MEHMOOD HUSSAIN LARK and others Versus MUSLIM COMMERCIAL BANK LIMITED and others" (2010 SCMR 1036 ). The relevant part of the said judgment is reproduced hereunder:- "We have given due consideration to the arguments advanced by the petitioners in person, gone through the judgment sought to be reviewed. We are of the view that before an error can be a ground of review , it is necessary , that it must be one which is apparent on the face of the record and that it must be so manifest, so clear , that no Court could permit such an error to remain on record. Incorrectness of a conclusion arrived at after a conscious perusal of record and in depth examination of evidence cannot be made a ground for review because to permit a review on the ground of incorrectness would amount to granting the Court jurisdiction of re-hearing appeals against its own judgment."
(Emphasis Supplied)
9. Learned Single Judge while declining to use its revisional jurisdiction, against concurrent judgments and decrees of learned two Courts below , has given a comprehensive judgment while encompassing all the aspects of the case and in the light of settled principles of law. The applicant who gained possession of the agriculture land as tenant has managed his possession for two decades, without payment of lease amount, on the basis of oral agreement and throughout adopted all the tactics to delay the legal proceedings to keep the alleged cause alive and maintain his possession, by misuse of process of law .
10. Pursuant to the above discussion, this application being devoid of any merit is dismissed , with costs of Rupees One Lac (Rs.1,00,000/-).