SAFDAR SALEEM SHAHID, J. This revision petition has been directed against the order dated 02.10.2021, whereby the petition seeking review of the ex parte judgment dated 14.04.2017 and decree dated 16.10.2017 passed in a suit for partition with permanent injunction was dismissed by the learned Civil Judge, Lahore, and the judgment dated 15.12.2021, whereby the appeal filed by the petitioner against the order 02.10.2021 was dismissed by the learned Additional District Judge, Lahore.
2. Brief facts necessary for decision of the instant petition are that respondent No.1 filed a suit for partition of property with permanent injunction against the petitioner and respondents Nos.2 and 3 alleging that the parties being real brothers and sister are joint owner/co-sharer of inherited property i.c. House No. 12-FCC, Muratab Ali Road, Gulberg IV, Lahore, measuring 08-kanals (08- kanal 0.215) left by their deceased mother namely Qamar Munir Begum wife of Rai Bashir Ahmad deceased; that a suit filed by the parties for declaration of legal heirs was decreed ex parte 'vide judgment and decree dated 10.12.2014 and when approached by the parties for change of title of the property in their it names, the concerned LDA authority issued a letter dated 08.08.2014 vide No.LDA/DEM-II/4364 in favour of parties, but thereafter the defendants started to avoid the partition of property, on one pretext or the other. The petitioner and respondent No.3 contested the suit on different legal as well as factual grounds, whereas respondent No.2 showed his no objection in case the same is decreed.
3. The learned trial court, out of pleadings of the parties, framed issues on 28.10.2015 an called upon the parties to produce their evidence. Respondent No. 1/plaintiff appeared as PW.1 and produced Sohail Iqbal and Syed Shakeel Anwer as PW.2 and PW.3. He also tendered in evidence death certificate of his mother as Exh.PA, letter issued by LDA as Exh.PB, copy of sale deed in favour of deceased Qamar Murir Begum as Mark-A and copies of site plans of suit property as Mark-B and Mark-C. The petitioner as well as other defendants were, however, proceeded against ex parte on 06.06.2016 and thereafter the learned trial Court vide judgment dated 16.07.2017 passed preliminary decree and appointed a local commission, who submitted a report to the effect that property in dispute has been kept as one unit without any partition wall with four main gates, out of which two open towards Muratib Ali Road, Gulberg-IV, whereas the other two open towards Sikandar Malli Road, Gulberg-V, Lahore. According to the report, respondents Nos.1 and 2 are in possession of Western portion of the property, while the petitioner and respondent No.3 are in possession of the Eastern portion thereof and that the property can be partitioned by erecting walls as shown in the map (Annexure-C-11 with the report). The learned trial Court in view of the report of the local commission finally decreed the suit and held plaintiff/respondent No.1 to be entitled to get separate his share according to the map of partition annexed with the report, vide judgment dated 14.04.2017.
4. The petitioner challenged the said judgment by filing an application under section 12(2), C.P.C., which was dismissed vide order dated 04.02.2019 and the revision petition filed against the said order was also dismissed through judgment dated 25.04.2019, against which the petitioner filed Writ Petition No.51506/2019, but the same was withdrawn on 18.05.2021 with a view to initiate legal proceedings before the appropriate forum if permissible under the law. The petitioner thereafter filed a review petition against the original judgment dated 14.04.2017, which was dismissed vide order dated 02.12.2021 and the appeal filed against the same was also dismissed through judgment dated 15.12.2021. Both the said decisions have been assailed in the instant revision petition.
5. Record reveals that an application filed by respondent No.3 under section 151, C.P.C. seeking setting aside of ex parte judgment dated 14.04.2017 and decree dated 6.10.2017, was also dismissed vide order dated 25.11.2020. Thereafter on 24.12.2020 the petitioner and respondent No.3 field an application for execution/implementation of judgment and decree dated 14.04.2017 with a further prayer that in the meanwhile respondents Nos.1 and 2 be restrained from selling any specific portion of the property. The petitioner also filed an objection petition in the execution petition filed by respondent No.1, which was dismissed vide order dated 22.09.2021 and the appeal filed there against also met with the same fate vide judgment dated 15.12.2021.
6. Arguments heard. Record perused.
7. The matter relates to partition of a residential property left by late mother of the parties. It is well settled that claim for partition is a recurring cause of action and unless the division of the joint property has been finalized, each party remains participant of the partition proceedings and has got right to claim his share and that right is not lost. In the instant case the petitioner joined proceedings and remained present till the recording of evidence of respondent No. 1/plaintiff, but thereafter absented and was proceeded against ex parte, preliminary decree was passed and on the basis of report of local commission, against which ' there was no objection by either party, final decree was passed by the Court. The petitioner then filed an application under section 12(2), C.P.C. for setting aside the said decision, which being not maintainable was dismissed and the revision petition filed by the petitioner also met with the same fate. The petitioner filed a writ petition, which was withdrawn with a view to initiate legal proceedings before the appropriate forum. An application under Order IX, rule 13, C.P.C. for setting aside the ex parte judgment was filed, which was dismissed. The petitioner was well aware of the pendency of proceedings regarding partition of the property in dispute and he duly joined the same by filing written statement but he absented from the same and was proceeded against ex parte, preliminary decree was passed, local commission was appointed, who submitted the report, which was not objected to by either party and the trial Court finally decreed the suit. Instead of associating with the proceeding of local cc emission or raising any objection against her report, the petitioner remained absent till the passing of final decree. After passing of final decree, the petitioner remained associated with the matter under different provisions of law which were not applicable to the case. Thereafter, the petitioner filed the review petition, but the learned trial Court, after taking into consideration all the above facts dismissed the same and the appeal filed against that decision also met with the same fate.
8. Section 114 of C.P.C. deals with review of decree or order, which is as follow:- "114. Review.---(1) himself aggrieved-- Subject as aforesaid, any person considering
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred;
(b) by a decree or order from which no appeal is allowed by this Code; or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
2. Nothing contained in subsection (I) shall, apply to a review of any judgment pronounced or order made by the Supreme Court."
Order XLVII, C.P.C. is also reproduced for convenience:-- "Application for review of judgment.---(1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent he can present to the Appellate Court the case on which he applied for the review."
In view of the above provisions of law, scope of the review is very limited and review can be sought in an extraordinary situation and it cannot be taken as a matter of routine. However, the review jurisdiction can be invoked only where discovery of some new and important evidence which despite exercise of due diligence was not within knowledge of party and so could not be produced by him when order was being passed or on account of some mistake or error on the face of record.
Reliance in this regard can also be placed on the case of Mst. Gul Saba Bibi and another v. Al-Haj Muhammad Nazir and 7 others (2016 CLC 10).
9. The Hon'ble Supreme Court in the case of lqbal Pervaiz and others v. Harsan and others (2018 SCMR 359), held that "once a case was finally decided, the court became functus officio. Only provision which allowed changes in the final order was the provision of review, scope of which was limited to correcting an error that was floating on the face of the record. To have a second opinion of the findings reached in the final order by the same court was not permissible while exercising power of review."
10. Review jurisdiction is to be exercised within strict parameter laid down in Order XLIVII, C.P.C. and failure of a party to appear on a date of hearing was no ground for review of judgment passed in his absence. In addition thereto, review jurisdiction is confined to the extent of patent error or a mistake floating on surface of record, which, if not corrected, might perpetuate illegality and injustice and the points already raised and considered by Court could not be re-agitated in review jurisdiction. Mere fact that another view of matter was possible or conclusion drawn in impugned judgment was wrong, would not be a valid ground to review a judgment, unless it is shown that the Court had lases failed to consider an important question of law. Reliance in this regard can be placed on the cases of Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others (2007 SCMR 755), Mst. Aisha and others v. KMC. Defunct, succeeded by City District Government Karachi and others (2005 YLR 175) and Mussrat Nazir v. Malir Development Authority through Director General, Memon Gosh, Malir and 4 others (2009 MLD 167).
11. A glance of above provisions and the case law enumerates the powers of a Court to review its orders, subject to certain conditions envisaged therein. None of the conditions required for review of judgment and decree passed by the learned trial Court could have been pointed out by the petitioner, therefore, the review petition was rightly dismissed being devoid of any force. The petitioner was unable to point out any infirmity or perversity in the impugned order.
12. For what has been discussed above, the petitioner has been unable to point out any illegality, irregularity or any jurisdictional error in the order/judgment of Courts below, calling for interference under the revisional jurisdiction of this Court. The instant petition, therefore, fails and is accordingly dismissed with no order as to costs.