' This application under section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, seeks review of judgment of this Court dated 26th November 1990, dismissing Writ Petition No,470/R of 1981 filed by Budha deceased, predecessor of the petitioners.
2. The dispute between the parties relates to an area of 40 Kanals of land bearing Khasra Nos. 1839, 1840, 1846, 1847, 1848 in the revenue estate of Mauza Jandiala, Tehsil and District Lahore.
3. According to the case of the petitioners, the above-mentioned land forms part of larger area of land measuring 162 Kanals 11 Marlas which was allotted to the petitioner, Budha deceased, in the year 1964. Respondent No,2 was also an allottee in the same village. On 21st October, 1964, he filed an application, claiming that his allotment was deficient and he was entitled to further allotment of 40 Kanals. On this application, an order was passed by the Border Allotment Committee on 3rd April of 1965, transferring the land now in dispute to him. A mutation was also sanctioned in his favour on 7th February, 1970. The petitioner challenged this mutation by filing an appeal which was accepted on 22nd of October, 1973 by the Collector.
4. Subsequently, on 3rd April, 1975 an application for setting aside the order of allotment dated 21st of October, 1964 was filed by the petitioner before the Border Allotment Committee claiming that as the land in dispute stood allotted to the petitioner by the Rehabilitation Authorities, it could not have been transferred under the Border Area Allotment Scheme to respondent No,2. This application was accepted ex parte by the Border Allotment Committee on Goth August, 1978.
However on 12th October, 1978 respondent No,2 applied for the review of the order dated 6th August, 1978 which was allowed by the Border Allotment Committee on 28th July, 1981 inter alia on the finding that the petitioner had failed to prove that the land in question stood allotted to him by the Rehabilitation Department and as such the land was again restored to respondent No,2
5. This order of the Border Allotment Committee was challenged by the petitioners by filing Writ Petition No,470/R/81 in which they sought a declaration that the impugned order dated 28th of July, 1981 passed in second review was without lawful authority and of no legal effect. This writ petition was dismissed on 26th of November; 1990.
6. The petitioners applied for leave to appeal against the judgment of the Court by filing Civil Petition No,57/L/1991 before the Supreme Court of Pakistan which was granted on 15th of April, 1991.
While disposing of the said petition, it was also observed by the Supreme Court that a possibility cannot be ruled out that if the document annexed with the petition for leave to appeal had been produced before the High Court, the result of the writ petition might not have been the same. In the circumstances, the petitioners were directed to file an application for review and also for condonation of delay in filing the said application before this Court. It would be useful to reproduce the relevant observations of the Supreme Court of Pakistan which are as under:-
7. "On the same reasoning as advanced by the learned counsel for the grant of leave to appeal we think that it will be in the interest of justice that the petitioners should be directed to file an application for review before the High Court and place the same material (photo copies) on the record of those proceedings also. The apprehension in this behalf expressed regarding the limitation is not much well-founded as reliance should be placed on Sections 5 and 14 of the Limitation Act as well as to these observations. Accordingly, we direct that during the pendency of the appeal in this Court the review application may also be filed before the High Court, which it is hoped, shall be disposed of as soon a possible."
7. In compliance to the aforesaid directions, the petitioners have applied for review of the judgment in which notices were issued to the respondents who are duly represented by their counsel.
8. Before this application could be argued on merits, certain preliminary, objections were raised by learned counsel for the respondents which may be disposed of at the outset. The first objection was raised on the strength of Section 114 of the Code of Civil Procedure, that review of judgment can only be sought when no appeal has been filed while admittedly in the present case, the petitioners had gone in appeal to the Supreme Court. This objection is without any merit. Section 114 of the Code of Civil Procedure bars an application for review only when an appeal is allowed by the Code of Civil Procedure itself and not when the appeal is filed under some other law. This conclusion is borne out not only by the very language of the proceedure but is also supported by the judgment of this Court in Mian Abdul Aziz v. Dr. C.A. Chisty, Managing Director Katarband & Co., Power House, Jhang and another (PLD 1959 Lahore 31). In the present case, admittedly, the application for grant of special leave to appeal was filed under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973, and it is under that provision that the Supreme Court of Pakistan granted the petitioner the leave. Consequently, the bar contained in clause 114 (a) is not attracted.
9. The next objection of learned counsel for the respondents relates to the question of limitation.
Suffice it to say that the Supreme Court of Pakistan in its order dated 5th of April, 1991 has observed that the petitioners can rely upon Sections 5 and 14 of the Limitation Act, 1908 and the observations made in this order for seeking the condonation of delay, the factual position of the circumstances I feel that the delay in filing the application for review has been sufficiently explained. Therefore, C.M.
No,1/91 filed for condonation of delay is allowed.
10. The third objection raised by Sh. Abdul Aziz, learned counsel for respondent No,2 that his review on the ground of discovery of new and important evidence can only be filed if the applicant is able to establish that despite due diligence, he could not produce the evidence earlier. The proposition of law as stated by learned counsel is correct but in the present case, it has been noticed by the Supreme Court of Pakistan that the failure of the petitioners to file the documents earlier stands sufficiently explained. That being so, I am not in a position to accept this objection.
11. As regards the merits, Mr. Muhammad Shahzad Shaukat, learned counsel for the petitioners, Mr. Abdul Hafeez, legal represented by respondents No,2 to 9 and Ch. Muhammad Rafique Khan, Advocate, appearing on behalf of respondent No,1 all agreed that no proper inquiry has been conducted by any of the authorities into the real matter of controversy between the parties namely as to whether the land in question was allowed to Budha deceased, if so on what date and with what effect, the order of the Border Allotment Committee be set aside and the matter remitted to it for decision afresh after hearing the parties.
' In view of the above discussion, the application is allowed and the judgment of this Court in Writ Petition No,470-R of 1981 is recalled, therefore, the case is remanded to the Border Allotment Committee for decision afresh. There shall be no order as to costs.