' SHER ZAMAN CHAUDHRY, J.-The facts giving rise to this appeal directed against the judgment of the High Court dated 13-11-1974, passed on a review petition filed by the respondent briefly stated are that a house belonging to the appellant situated in old Mirpur town was acquired by the Government through an award announced on 15-9-1967, by the Collector Land Acquisition for Mangla Dam. The amount awarded was Rs, 9,703.70.
2. Feeling dissatisfied with the award the respondent-Government filed a reference petition claiming therein that the house in dispute having been constructed after the promulgation of notification under section 6 of the Land Acquisition Act, was an unauthorised construction. Since the appellant constructed the house without prior approval of the Collector, Mangla Dam, he was, therefore, not,- as claimed in the reference petition, entitled to any compensation. The Reference Judge after necessary proceedings dismissed the reference vide his judgment, dated 31-10-1968.
3. An appeal filed by the Government challenging the correctness of the finding recorded by the District and Reference Judge, Mirpur was rejected by the Division Bench of the High Court on 8-6- 19)0. The respondent then filed a petition for review of the judgment on the ground that new evidence has become available which if allowed to be produced will prove decisive on the point in dispute between the parties. Before the petition could be disposed of, the learned Chief Justice of the High Court, a member of the Bench, which pissed the judgment, sought to be reviewed had retired. So it was heard by the learned Single Judge of the High Court who accepted the review petition on the ground of new evidence. The judgment under review was set aside vide High Court's judgment, dated 13-11-1974.
4. It is this judgment of the High Court passed on a review petition, the validity of which has now been challenged. This appeal, it may be stated, was originally filed in the Judicial Board. ' Through the process of law it subsequently, however, stood transferred to the Supreme Court. The reversal of the impugned judgment is sought by the appellant on the ground that it is not in accordance with the requirements of Order XLVII, rules 1 and 4 (2)(b) of the Code of Civil Procedure.
5. Kh. Muhammad Saeed, the learned Advocate for the appellant argued that the fresh evidence now sought to be introduced and made basis for the review by the respondent-Government was, as appears from the record, within the respondent's knowledge at the time when the reference was still pending before the District and Reference Judge, Mirpur. Despite this knowledge about the existence of this new evidence now made basis for the review, the respondent made no effort to produce it till after the dismissal of the appeal by the Division Bench of the High Court. There existed no justifiable reasons, argued the learned counsel, warranting the review of its judgment by the High Court. The impugned judgment being violative of the rules contained in Order XLVII of the Code of Civil Procedure could not, therefore, according to him, be sustained.
6. Controverting the arguments advanced on behalf of the appellant Mr. T. H. Twig, the learned counsel for the respondent submitted that since new evidence sought to be produced by the respondent was of a decisive nature, it could be a valid ground for allowing the review petition. The impugned judgment, according to him, being perfectly in accordance with the provisions contained in Order XLVII of the Code of Civil Procedure, was open to no exception and as such the appeal was liable to be dismissed.
7. We will now proceed to examine the merit of the arguments addressed on behalf of the parties.
In order to determine EIS to whether the review of its judgment allowed by the High Court was in conformity with the requirements of relevant law, a reference to Order XLVII, rules 1 and 4(2)(b) of the Code of Civil Procedure is imperative. Order XLVII, rule 1 reads:- "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 ' 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 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 to, the Court which passed the decree or made the order,"
' Rule 4(2)(b) of the Code reads:- "no such application shall be granted on the ground of discovery of new matter or evidence which, the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation."
8. From the perusal of these provisions it becomes clear that to bring his case within the purview of these above-listed provisions, the applicant must first prove that the newly-discovered evidence, despite the exercise of due diligence by him was not within his knowledge or that it could not be produced earlier. No petition for review on these grounds is to be allowed without a strict proof of such assertions as required under rule 4(2)(b) or Order XLVII of the Code. The requirement of strict proof is mainly based on the consideration that where a litigant has obtained a judgment from a Court of justice, he Libeler law is entitled to enjoy its benefits and could not be robbed of the fruits of the judgment or decree so obtained by him except on solid grounds. Since it is so easy for an unsuccessful litigant to see the weak part of his case and then to remove those weaknesses and the lacunas left over in the case. So the rule that permits a review on account of discovery of new evidence has, therefore, been fenced round with many limitations. Where therefore, a review of the judgment is sought by an unsuccessful party on the ground of discovery of new evidence great care B ought to be exercised and strict proof of the assertion is to be insisted upon by the Court while allowing the relief of a new trial.
9. The question now, therefore, needing examination is as to whether the order allowing the review passed by the High Court in the instant case was passed.In accordance with the requirements as contained in Order XLVII, rules 1 and 4(2)(b) of the Code. We have carefully examined the record including the petition for review and the affidavit filed in support of it. From the perusal of the record it appears that the respondent had the knowledge about the existence of this new evidence when the reference was still pending in the Court of District and Reference Judge, Mirpur. Sh. Lqbal Ahmed X. E. N. Appearing as a witness for the Government in his evidence before the Reference Judge recorded on 24-1-1969, stated that Iftikhar Shah appellant had applied for the permission to construct the house but it was refused by the Collector Ivlangla Dam. The point thereafter, it appears, was not pressed any further by the respondent, and then the petitioner before the Reference Judge. Neither the certified copies of the alleged application and the order of rejection passed thereon by the Collector were placed on record nor any application for summoning the original was moved before the Reference Judge. We have with utmost cam examined the record including all the interim orders recorded by the trial Court but have not been able to find anything which could show that any effort was made by the respondent in that direction. The evidence of the appellant, on the statement of Government Advocate, was closed on 12-3-1969, by the trial Court. In defence Syed Iftikhar Hussain Shah appellant himself appeared as his own witness and got his statement recorded on 2-9-1969, but was not cross-examined on the point. There is no explanation as to why the respondent kept silent, if not earlier, at least from 24-1-1969 till 1-1-1970, when for the first time the Advocate for the respondent asked the Collector to provide the .
Documents. The petition for review was filed in the High Court on 10-9-1970. In this petition too, it is not even claimed muchless proved that respondent had no knowledge of this evidence or that prior to 1-6.1970 any effort topic procure this evidence was made. Thus it could hardly be called a case of the exercise of due care and diligence nor the evidence that was made basis' for allowing the retrial by the High Court, could be regarded as newly discovered evidence or that it could not be produced earlier.
10. The point next requiring determination is as to whether a review could be allowed or retrial could be ordered on the sole ground of importance of evidence. We have given our earnest thought to the proposition and find that a review can only be allowed within the limitations. Envisaged under Order XLVII, rules 1 and 4(2)(b) of the Code.
11. The proposition may yet be looked into from a different angle. Could the importance of evidence be regarded as "Any other sufficient reason" also put a ground for review under the rule? The answer so this query is in negative because the expression "for any other sufficient reason" is to be interpreted as meaning a reason sufficient on grounds at least analogous to E those expressed in the rule. So therefore, to allow a review or ordering a retrial on the simple ground that the evidence has been secured subsequently or it is important, will reduce the relevant rule to the state of redundancy. We therefore, set aside the impugned order and accept the appeal. In view of intricate question of law involved we make no order as to costs. .
Appeal accepted 1001