This writ petition has been filed to challenge the order passed by respondent No.8, in a review petition, on April 24, 1995.
2. The facts as disclosed in the petition, are that the petitioners filed partition proceedings for Khewat No.19/20 of Village Sochani, Tehsil Dadyal, against respondents Nos. l to 7 and other proforma respondents, before the Assistant Collector, Mirpur who passed an order on March 24, 1985. It was further disclosed that due to connivance of the lower revenue staff, the file in which the order was passed, was again placed before the Assistant Collector who passed an order on December, 24, 1987 to the effect that the order for partition had already been passed, as such no further proceedings were required. The respondents filed an appeal before the Collector against the above referred order, which was dismissed and a revision petition before the Revenue Commissioner also met the same fate. A further revision before the Member, Board of Revenue was also dismissed. However, a review petition filed by the respondents, was accepted by respondent No.8 on April 24, 1995 whereby the order passed by the Member, Board of Revenue in revision and the other orders by the subordinate Revenue Officers, were set aside and the case was remanded to the Assistant Collector to initiate fresh partition proceedings. This order is the subject of challenge before this Court.
3. Raja Muhammad Siddique Khan, the learned counsel for the petitioners raised the following points in support of the petition:---
(i) That the Assistant Collector, Mirpur passed a final order in the partition proceedings on 24-3- 1985 against which no appeal was preferred. However, an appeal filed against the order dated December 24, 1987 before the Collector was dismissed and a revision petition before the Revenue Commissioner and a further 'revision before the Member, Board of Revenue also met the same fate. It was explained that all the Revenue Courts held that the respondents did not file any appeal against the order passed in partition proceedings. However, the appeal filed by the respondents was held incompetent and time-barred. Therefore, the order attained finality after finally concluded by the order of Member, Board of Revenue;
(ii) that the appeal filed before the Collector was tampered with, so to make it an appeal against the order dated 24-3-1985 which was noticed by all the Revenue Courts;
(iii) 'that respondent No.8, set aside the orders. Passed by the Member, Board of Revenue and the other Revenue Officers, by accepting the review petition. The order was attacked on the following further grounds;---
(a) That the order was passed without jurisdiction and lawful authority;
(b) that respondent No.8 failed to appreciate that the partition order dated 24-3-1985 attained finality as no appeal was filed against that order; and
(c) that the scope of review is very limited, as such respondent No.8 transgressed his jurisdiction while going beyond the limits provided for the review. The learned counsel referred to 1983 CLC 621 in support of his assertions.
4. On the other hand, Raja Hassan Akhtar, the learned counsel for the respondents argued in the following manner:---
(i) That the points raised before the Collector, Revenue Commissioner and Member, Board of Revenue, were not considered, as such, the review was rightly attracted;
(ii) that without entering into detailed merits, it was apparent that some of the parties on record had died and a final order was passed without impleading their legal representatives. Therefore, the orders suffered from glaring illegality;
(iii) that the scope of review in revenue proceedings is wider than the provisions maintained for the purpose in other laws: and
(iv) that by acceptance of review petition, the case was remanded to the Assistant Collector for initiation of partition proceedings afresh where rights of the parties shall be considered and determined, as such no writ is attracted, as none of the rights of the petitioners is prejudiced by remand order. The learned counsel referred to PLD 1992 SC (AJ&K) 45 in support of his assertions.
5. I have heard the learned counsel for the parties and also gone through the record. It may be mentioned that the petitioners filed the partition proceedings on September 1, 1982 and a final order was passed on March 24, 1995. However, for unknown reasons, the file was again placed before the Assistant Collector who after hearing the concerned parties, passed an order on December 24, 1987, maintaining therein that the order for partition had already been passed, as such no further proceedings were required. An appeal by the respondents was preferred before the Collector who dismissed the same on the ground that no appeal against the order passed by the Assistant Collector on March, 24, 1985, was filed but it was filed against the order dated December 24, 1987. Therefore, the order dated March 24, 1985 attained finality. Alternatively, it was held that even if the appeal was held to have been filed against that order, in that case too, the appeal was hopelessly time-barred. The Additional Commissioner in revision against the order passed by the Collector gave the same reasons for dismissal of the revision petition. The order was upheld by the Member, Board of Revenue, on the same grounds.
6. In a review filed by the respondents, the orders by the Member, Board of Revenue and subordinate Revenue Officers were set aside by accepting the same on the following grounds:---
(i) That it is essential to judge the legal validity of order dated March 24, 1985, passed by the Assistant Collector which does not satisfy the requirements of an order passed under the relevant provisions of law, as the same was passed without hearing the non--applicant-respondents, particularly without receiving any objections from them; and
(ii) that the observations of the Revenue Officers with regard to non-filing of an appeal against the order dated March 24, 1985, are not based on facts.
7. Before adverting to the scrutiny of the impugned order, it would be appropriate to look for the provisions provided for the purpose, in the Azad Jammu and Kashmir Board of Revenue Act, 1993 which is reproduced as below :---- "8. Review of orders by the Board.---(1) Any person aggrieved by a decree passed or order made by the Board 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 the order was made, or on account of some mistake or error apparent on the face of the record or for any other sufficient cause 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."
An analysis of the above provision reveals that the review is allowed almost on the similar grounds as, provided in Order 47, Rule 1, C.P.C. And Order XLVI, Rule 1, of the Supreme Court Rules, which are usefully reproduced below:--- "Order 47, Rule 1, C.P.C. Application for review of judgment.---(1) Any person considering himself aggrieved---
(a) by 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 to 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 any 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 applies for the review.
Rule 1 Order XLVI of Azad J&K Supreme Court Rules:
(1) Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding on the grounds of an error apparent on the face of the record."
8. The provisions providing for the review are an exception to the general rule of finality firmly embedded in judicial system. As the review provisions found in the Azad Jammu and Kashmir Board of Revenue Act, are almost similar to those provided in the Code of Civil Procedure and the Azad Jammu and Kashmir Supreme Court Rules, therefore, it would be appropriate to seek guidance from the observations made by the Supreme Court of Azad Jammu and Kashmir on certain occasions. A review matter came under consideration before the Court in the case titled Mst. Sardar Begum and 2 others v Ahmad Khan and 4 others 1983 CLC 621 wherein it was observed as under:--- "8. Orr a proper consideration, it will be found that the principles underlying the limitations mentioned in Order 47, Rule 1, C.P.C., are implicit in the nature of review jurisdiction. It should only be granted for some sufficient cause akin to those mentioned in Order 47, Rule 1 of the Civil Procedure Code. The indulgence by way of review may, no doubt, be granted to prevent an illegality as where by some inadvertence an important statutory provision has escaped notice which, if it had been noticed, might have materially affected the judgment of the Court but in no case should a re- hearing be allowed on merits. Besides, there must be an end to litigation .-------- ------Incorrectness of view--Challenge to in review--Held: No mistake in considered conclusion to be ground for exercise of review jurisdiction as to permit review on ground of incorrectness of view to amount to grant Court jurisdiction to hear appeals against its own judgments. ---Review jurisdiction--Exercise of--Held: points already raised and decided not to be allowed to be re-opened in review jurisdiction of Supreme Court to afford rehearing especially when no error disclosed in impugned judgments."
The point also came under consideration before the Supreme Court of Pakistan in a case titled Ghulam Fatima v. Settlement Commissioner, Lahore (1969 SCM R 5), wherein the following observation was made:--- "A review cannot be granted merely because one party or the other to the litigation is not satisfied with the decision of this Court and considers that the matter should be reheard or reargued. A review is not a substitute for an appeal. Therefore, the mere dissatisfaction of a party to the litigation is no ground for review although it might have been a ground for an appeal if an appeal lay from a decision of this Court."
1973 SCMR 143, in the following words:--- "We are not impressed by this contention, because, it really amounts to challenging the correctness of the view taken by this Court in the order now sought to be reviewed, and this cannot be a ground for review."
A similar view also prevailed in the case titled S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore 1978 SCM R 367 in the following words:--- "But a judgment cannot be reviewed merely because a different view could have been taken. And further, even if we also assume that the petitioner's submission is correct, the contention that the impugned order was void and not voidable, cannot be established without elaborate arguments.
But as pointed out by us a review can lie only when the alleged error in the judgment is an evident error which can be established without elaborate arguments."
9. Keeping in view the principle enunciated in the above quoted authorities, it can safely be concluded that the order passed by the Member, Board of Revenue, while reviewing the order earlier passed by his predecessor, is beyond the scope of review as provided in the above-referred provisions of Azad Jammu and Kashmir Board of Revenue Act. The learned Member in his order has practically reheard the appeal and decided the points which were considered and decided as such. It was not within his jurisdiction to review on, the ground of incorrectness of the view as he could not hear the appeal against his own judgment or the judgment of his predecessor, particularly when no error, was disclosed, the case could not be re-opened as was done by him. In fact, all the elements of review were lacking in the case. The authority cited by the learned counsel for the respondents with its distinct facts, is not applicable to the present case as the appeal by way of leave against the order passed by the High Court, was accepted, mainly on the ground of writ petition having been filed against a private party, was held to be not maintainable, as such it was held to be dismissed. Therefore, the above-referred authority did not support the respondents' assertion.
10. In view of the above discussion, the order passed by the Member, Board of Revenue, respondent No.8, is held to be illegal and is of no legal effect which is hereby set aside and that of Board of Revenue dated November 28, 1993 by which order dated March 24, 1985 passed by the Assistant Collector was finally affirmed, is hereby restored by accepting the writ petition.