' This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan calls in question the order dated 26-2-1991 passed by learned Member (Consolidation), Board of Revenue, in Review Petition No,104/90, whereby he reviewed the order passed by his predecessor on 28-8- 1990 by upholding the order of the Consolidation Officer dated 13-6-1985.
2. Briefly the facts are that consolidation scheme of the revenue estate of Walipur, Tehsil Shakar Garh, District Sialkot, was confirmed by the Consolidation Officer on 13-6-1985 under section 10(3) of the Consolidation of Holdings Ordinance, 1960, hereinafter called the Ordinance, whereby Khatas of the petitioners were confirmed in Scheme No,78 and that of respondents Nos.2 to 4 in Scheme No,1. Being aggrieved with the aforesaid order, the petitioners filed an appeal dated 24-5-1987 before the Additional Deputy Commissioner (Consolidation), District Sialkot Camp Shakar Garh.
This appeal was accepted by his order dated 31-1-1989 after hearing the parties and perusing the material available before him. In consequence thereof, relevant amendments were made in the respective Khatas of the parties. Respondents Nos.2 to 4 filed second appeal against the aforesaid order before the Additional Commissioner (Consolidation), Gujranwala Division, Gujranwala, but the same was rejected by order dated 18-9-1989. The revision petition filed by respondents Nos.2 to 4 also met the same fate as it was rejected by Mr. Hafizullah Ishaq, the then learned Member (Consolidation), Board of Revenue, after re-appreciating the evidence on record and providing an adequate opportunity of being heard to the parties by order dated 28-8-1990.
3. Feeling still not satisfied, respondents Nos.2 to 4 filed a review petition under section 8 of the West Pakistan Board of Revenue Act, 1957, hereinafter called the Act, against the said order on the following grounds:-
(1) that the appeal filed by the petitioners against the order of the Consolidation Officer was time- barred;
(2) that the Collector vide order dated 31-8-1989 condoned the delay through a non-speaking order;
(3) that the limitation was condoned without providing opportunity to the respondents herein to explain their view-point;
(4) that the finding recorded by the Collector regarding service on respondents Nos.2 to 4 herein was against facts;
(5) that the Courts below were not aware of the correct Sharia Law on the subject and that the findings of facts were not correct;
(6) that the order for proclamation was invalid and was based on misapplication or non- application of law;
(7) that the basic order of the Collector dated 31-1-1989 was unlawful and, therefore, the subsequent proceedings are also had;
(8) that the respondents Nos.2 and 3 are facing great difficulties in cultivating their lands as a result of amendments made in the respective Khatas of the parties;
(9) that the persons whose areas were given to respondents Nos.2 to 4 had not filed any appeal against them; and
(10) that the Courts below ignored certain admissions made in the pleadings of the parties,
4. The learned Member, Board of Revenue reviewed the order passed by his predecessor on the grounds stated in paragraphs Nos.4 and 5 of the impugned order which read thus:-- "4. Fact remains that the appeal of the respondents was time-barred by about two years. No proper explanation was given in his Court for the condonation of the said miserable delay. Each and every day's delay should have been explained as held in 1973 SCM R 304. As a result of consolidation operations the parties were adjusted rightly. Pre-consolidation period the petitioners held their land in 23 plots and during the consolidation operations they were accommodated in two plots but as a result of the amendments framed by the Collector (Cons.) they were given land in six plots. Similarly the respondent's pre-consolidation plots were ii which were reduced to three plots as a result of consolidation operations, as well as in amendments. As a result of these amendments the plots were divided and increased from 2 to 6 which cannot be conveniently irrigated. Reduction of plots means the real follow up of the consolidation operations and any order directing increase of number of plots with either of two sides would rather be considered as harsh and unfair and against the spirit of consolidation operations. It is also strange that simply on the basis of concurrent findings of two Courts below my learned predecessor announced the order now before me. No doubt he was fortified by two orders of the lower Courts but question remained that basic fortification in the order of the Collector (Cons.) was not strong enough for the learned Additional Commissioner (Cons.) or for my learned predecessor to bank upon. Any order unnecessarily increasing number of plots would always be considered as unfair. To this Court no improvement appears to have been done over and above the basic consolidation scheme. What was wrong with the basic scheme has not been convincingly brought out by all the three Courts (i,e. Member (Cons.) Additional Commissioner (Cons.) and Collector (Cons.) and that confusion is required to be removed.
5. This Court has therefore, good reasons to sustain the basic consolidation scheme dated 13-6- 1985 as confirmed by the Consolidation Officer between the petitioner and the respondents.
Accordingly the order of my learned predecessor dated 28-8-1990 is hereby recalled. The review petition is accepted with the result (that) the orders of two Courts below i,e. Order dated 18-7-1989 of the learned Additional Commissioner (Cons.) and 31-1-1989 of Collector (Cons.) respectively would be considered as having been interfered with and set aside between the two parties i,e.
Petitioners and the respondents."
5. Ch. Nazar Hussain, learned counsel for the petitioners, argued that the review petition under section 8 of the Act was not competent, in that, there was no mistake or error apparent on the face of the record or any other sufficient reason warranting review.
6. Mr. M. Hanif Khatana, learned counsel for respondents Nos.2 to 4 argued that there was an error on the face of the record, inasmuch as, not a single Marla of land of the present petitioners was given to respondents Nos.2 to 4 during the confirmation of the Scheme. To this extent the Scheme in respect of respondents Nos.2 to 4 herein could not have been disturbed. Resides, no Court right from the Additional Deputy Commissioner up to the Member, Board of Revenue, had given detailed reasons while dealing with the question of limitation in filing the appeal by the petitioners and affecting of service on respondents Nos.2 and 3 herein before the Additional Deputy Commissioner.
The contention is devoid of any force. The learned Member, Board of Revenue, in his order dated 28-8-1990 took notice with particularity of the plea raised by the aforesaid respondents that they were neither served personally nor any notice was published in the newspapers. This plea was rejected by the learned Member, Board of Revenue with the observation "the grounds for condonation of delay had been given by the Collector (Consolidation) and a notice was also published in the newspaper". It would, therefore, be seen that the grounds on which the aforesaid respondents sought review of the order of the learned Member, Board of Revenue, related to the merits of the case and did not fall within the scope of review as envisaged by section 8 of the Act which reads thus:-- "8. Review of orders by the Board.--(1) Any person considering himself aggrieved by a decree passed or order made by the Board and who, from the discovery of new and important matter of 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 the order was made, on account of some mistake or error apparent on the face of the record or for other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply to the Board for a review of judgment and the Board may, after giving notice to the parties affected thereby and after hearing them, pass such decree or order as the circumstances of the case require.
(2) Every application for review of a decree or order under subsection (1) shall be made within ninety days from the date of that decree or order."
7. The provisions of section 8 of the Act are somewhat analogous to the provisions of review contained in Order XLVII, Rule 1(c), C.P.C. Which reads thus:- "(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 he 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 to the Court which passed the decree or made the order."
8. The scope of review as envisaged by Order XLVII, Rule 1, C.P.C. Came up for consideration in Chhajju Ram v. Neki and others (AIR 1922 PC 112), wherein inter alia the following observations were made:-- For it is obvious that the Code contemplates procedure by way of review by the Court which has already given judgment as being different from that by way of appeal to a Court of Appeal. The three cases in which alone mere review is permitted are those of new material overlooked by excusable misfortune, mistake or error apparent on the face of the record, or 'any other sufficient reasons'.
' The expression 'sufficient' if this were all, would naturally be read as meaning sufficiency of a kind analogous to the two already specified that is to excusable failure to bring to the notice of the Court new and important matters, or error on the face of the record.
' Rule 1 of Order XLVII must be read as in itself definite of the limits within which review is today permitted, and that reference to practice under former and different statutes is misleading. So construing it they interpret the words 'any other sufficient reason' as meaning a reason sufficient on grounds at least analogous to those specified immediately previously."
' Also refer Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 SC 335). The following passage at page 354 on the question of review reads thus:-- "No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction....Lt is not because a conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie."
9. The scope of review as interpreted in the case of Chhajju Ram (supra) and Muhammad Amir Khan (supra) was quoted with approval by the Supreme Court in the case of Muhammad Ashraf v.
Dost Muhammad etc. 1981 SCM R 383.
10. The scope of review under section 8 of. The Act also came up for consideration in the case of Naseem Ahmed Kharal v. Board of Revenue, Sindh PLD 1979 Note 82 at p.57, the relevant page 117 reads thus:-- "The language of section 8 bears a close resemblance to the language used in the Code of Civil Procedure in so far as occasions making the remedy of review available are concerned. The only difference is that in 1964. Section 8. Of the West Pakistan Board of Revenue Act was amended so as to make the remedy by way of review available in cases where sufficient reason may be exhibited for review. The words "for.' any other sufficient reason" follow the words which lay down the grounds for interference in review. The words have to be read ajusdem generis with the words preceding them. It is not every cause which would make the remedy by way of review available but such cause must be relatable to the circumstances as discovery of new and important matter or some apparent mistake or error on the face of record."
' In Zulfiqar Ali Bhutto v. The State (PLD 1979 SC 741) with reference to scope of "review", the following observations were made:-- "However, an order based on an erroneous assumption of material fact, or without adverting to a provision of law, or a departure from an undisputed construction of the law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review, or a finding contained therein, although suffering from any erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review."
10. The case of Zulfiqar Ali Bhutto (supra) has no application the controversy raised herein, in that, the learned Member, Board of Revenue was fully alive to all the points raised before him. After conscious application of his mind he recorded a finding on the entitlement of the parties in the light of the pleas raised before him. It was within his knowledge that delay in filing the appeal was condoned by the appellate authority and, therefore, this question could not be reagitated on merits in the garb of review under section 8 of the Act. Same is the position regarding the plea raised as to validity of service on the contesting respondents. Refer Riaz Hussain and others v.
Board of Revenue and others (1991 SCM R 2307). In the precedent case, the learned Judges of the Supreme Court, after exhaustive examination of their previous judgments, reiterated that the provisions of section 8(1) of the Act were substantially the same as in Order XLVII, Rule 1, C.P.C. And section 8 of the Act does not permit Revenue Board to re-hear the matter on merits. The relevant portion reads thus:- "Section 8(1) of the Act is substantially the same as Order XLVII, C.P.C. It is well-settled principle that no Court or authority possesses any inherent jurisdiction to review its decree or order. Such power can be exercised where it has been expressly conferred by statute Reference can be made to Muzaffar All v. Muhammad Shafi PLD 1981 SC 94, Hussain Bukhsh v. Settlement Commissioner, Rawalpindi. And others PLD 1970 SC 65 and Brig. H.H. Nawab Muhammad Abbas Khan Abbasi v. The Government of Pakistan and others PLD 1984 SC 67. The power to review can be exercised where there is mistake or error of law or fact apparent on the face of the record. To find out such error one has not to scrutinize the record or evidence but it should be self-evident from a persual of the record itself and can be pinpointed without elaborate examination. Inconsequential or insignificant errors which do not go to the root of the matter are to be through force. This petition was resisted by the petitioner/defendant and the following issues were framed:- "(1) Whether it is in the interest of the minor if her custody is handed over to the plaintiff?" OPR.
(2) Relief."
' The respondent apart from appearing herself also produced Suleman as P.W.2 while the petitioner appeared as D.W.1 and also produced Muhammad Hassan. Learned Judge Family Court through his order dated 13-2-1989 after scanning in evidence brought by the parties dismissed the application of the respondent No,1. Aggrieved with this order the respondent No,1 filed an appeal and the learned Additional District Judge through the impugned order dated 22-4-1989 set aside the order by accepting appeal. Hence, this Constitutional petition.
' It is the argument of the learned counsel that the Additional District Judge has not at all considered the welfare of the minor and has extended/granted the custody of the minor to respondent Not on flimsy grounds. Learned counsel appearing for the respondent has supported the impugned judgment.
' I have considered the contentions and have gone through the evidence of the parties. I have noticed that the respondent failed to establish through her testimony that the minor was taken away by force by the petitioner. It has successfully been brought on record that the respondent No,1 herself left the minor with the Petitioner with whom she has been living eversince. The petitioner has not contracted second marriage and the minor is being very well-looked after by him in a house where he is living ,alongwith other family. Members. The minor is also attending the school a's is reflected from the evidence. It is true that the respondent No,1 has also not contracted the second marriage but she is not living with her parents at her family abode in village Katcha Khuh.
She has been working at a Dera of Shakir Shah. Her testimony does not inspire any confidence and the only witness Suleman P.W. Produced by her does not advance her case any further. Said Suleman cannot be termed as an independent witness. Although the respondent No,1 while appearing as P.W.1 had stated that she had got no acquaintance nor had got any relationship with the said witness. However, the testimony of Suleman is completely otherwise. He has been coming to the Court on each date of hearing with the respondent as is reflected from his testimony. Both of them have been working at the place of Shakir Shah. It has also come on record that the respondent No,1 is not staying with her parents. The learned Additional District Judge did not at all advert to the welfare of the minor which is the paramount consideration while deciding the case of this nature. In case the order under appeal is not interfered with the minor would also be placed at the Dera of Shakir Shah where her mother is working. This would certainly jeopardise the welfare of the minor who is presently very well looked after by her father.
In view of what has been stated above, I am of the considered view that the learned Additional District Judge has not at all considered the evidence brought by the parties in its true perspective.
He has not at all discussed the important feature of the case i,e. The welfare of the minor.
Resultantly, the order dated 24-4-1989 passed by Additional District Judge, Okara, is hereby set aside as having been passed without lawful authority and of no legal effect. The parties are left to bear their own costs.