AJMAL MAN, C.J.- By this common judgment, we intend to dispose of the above five review petitions. Through the aforesaid review petitions, review has been sought of the judgment dated 24.11.1991 rendered by a bench of this Court comprising five learned Judges passed in Civil Appeals Nos. 148-K of 1984, 85-K of 1989, 86-K of 1989, 87-K of 1989, 88-K of 1989, 89-K of 1989, 90-K of 1989, 50-K of 1986, 166-K of 1990, 167-K of 1990, 168-K of 1990 and 302-K of 1990), The present five review petitions have been filed by the appellants in Civil Appeals Nos. 148-K/1984 (C.R.P. No. 6/1992), 85- K/89 (C.R.P. No. 7/92), 86-K/89 (C.R.P. No. 8/92), 87-K/89 (C.R.P. No. 9 92). 302-K/90 (C.R.P. No. 20/92). They relate to one building bearing No. W.O. 7/34. Wadhumal Odharam Quarters, opposite City Courts, Karachi. The ground floor of the above building had seven shops, which were occupied by the various tenants.
2. It may be stated that the landlord filed ejectment cases against the aforesaid tenants on the ground of re-construction in terms of Section 13(2)(vi) of the late West Pakistan Urban Rent Restriction Ordinance, 1959, hereinafter referred to as the Ordinance. It is not necessary to give the chequered history of litigation. However, it will suffice to state that eventually various Rent Controllers granted ejectment orders to the landlord on the above ground on various dates. The tenants filed First Rent Appeals, namely, FRAs Nos. 716 1980, 421/1984, 426/1984, 547/1984 and 907/1986. F.R.A. No. 716 of 1980 was allowed by a learned Single Judge of the High Court of Sind through a judgment dated 8.12.1983 Abdul Ghaffar Abdur Rahman v. Asgher Alt and others (1984 C.L.C. 2863) on the ground that the approved building plan produced by the landlord did not show that there would be a provision for shops on the ground floor in order to provide accommodation to the tenants in terms of Section 13(5-B) of the Ordinance. Whereas the tenants' afore-mentioned F.R.As. Nos. 421/1984, 465/1984 and 547/1984 were dismissed by another learned Single Judge of the same High Court through a judgment dated 13.8.1987. He did not follow the above judgment in the case of Abdul Ghaffar Abdur Rahman v. Asghar Ali and others (supra) in view of the judgments of this Court in the case of Abdul Bari v. Khadim Hussain (PLD 1978 S.C. 78), in the case of Ghulam Nabi v. Mushtaq Ahmed (PLD 19) S.C. 206) and in the case of Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed Ali Haider and others (PLD 1983 S.C. 342). -It may further be observed that F.R.A. No. 907 of 1986 was disposed of yet by another Learned Judge of the said High Court through a judgment dated 6.12.1989. While dismissing the aforesaid F.R.A., the Learned Single Judge observed that the question, as to whether a tenant had to be accommodated in terms of sub-section (5-B) of Section 13 of the Ordinance, would arise after the new building was constructed and before the possession was given to another tenant. He modified the observation of the Learned Rent Controller on the above point.
3. It may be stated that the landlord filed a petition for leave to appeal bearing C.P.L.A. No. 84-K of 1984 (converted into Civil Appeal No. 148-K of 1984) against the afore-mentioned judgment of the Learned Single Judge dated 8.12.1983 rendered in F.R.A. No. 716 of 1980, which was reported as Abdul Ghaffar Abdur Rahman v. Asghar AH and others (supra), which was granted by this Court on 7.6.1984 on the ground that the view found favour with the Learned Judge in chambers was in conflict with the view taken by this Court inter alia in the case of Abdul Bari v. Khadim Hussain (supra) and in the case of Abdul Hadi alias Abdul Hassan and 2 others v. Syed Ali Haider and others (supra). It was also ordered by the leave granting bench that it would be appropriate that the appeal arising out of the aforesaid petition for leave should be heard by a bench consisting of not less than five Learned Judges. After that, six petitions for leave to appeal had come up for hearing before a bench of this Court on 2.2.1989 i.e. Three petitions were filed by the tenants and three were filed by the landlord. Leave was granted in the above six petitions on 6.2.1989 on the ground that leave was already granted earlier. The petitions which were filed by the tenants bore numbers C.P.L.A. Nos. 444-K/I987, 445-K/1987 and 446-K/1987, which were converted into Civil Appeals Nos.
85- K. 1989, 86-K/1989 and 87-K/1989. Then the fifth tenant filed Civil Petition No. 113-K of 1990, in which leave was also granted on 20.2.1990 on the same ground. The above petition was converted into Civil Appeal No.302-K of 1990.
4. This Court by the judgment under review not only disposed of aforementioned five appeals but had also disposed of a number of other appeals mentioned in the body of the judgment under review including relating to the properties situated in Sukkar and Jacobabad as common question of law was involved therein.
5. Mr. S. Sharifuddin Pirzada. Learned Sr. ASC appearing for the petitioners, has submitted that there are following errors of law apparent on the face of the judgment under review:-
(i) That this Court by holding that a tenant would not be entitled to invoke the benefit of sub- section (5-B) of Section 13 of the Ordinance if the nature of the new building was changed by the landlord i.e. a commercial building was convened into a residential building or vice versa, overlooked the language of the aforesaid provision which did not make any above distinction;
(ii) That this Court had invoked in the judgment under review Section 11 of the Ordinance by holding that it did not prohibit a landlord from convening a non-residential building into a residential building though the above Section related to the existing building add not to the new ly constructed building;
(iii) That this Court failed to take into consideration the factum that notwithstanding that a tenant might have been ejected on the ground of re-construction, his tenancy did not come to an end in view of the judgments of this Court in the case of Matloob v. Mst. Saeeda Khatoon (1988 SCM R 1575) and in the case of Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others (PLD 1993 S.C. 210).
His further submission was that there were following factual apparent errors in the judgment under review:-
(i) That this Court failed to take into consideration the statement made by Mr. Hussainy son of Asghar Ali. Who holds power-of-attorney on behalf of the respondents/landlords. In reply to the Court question that he had given instructions to his Advocate, Mr. Ibrahim Peshori, to inform the Court that after demolition of the old building,' the landlord would construct a commercial building.
The above statement is at page 28 of the paper book Part-II of C.R.P. No. 6-K of 1992, which reads as under:- "I am aware of the filing and disposal of the F.R.A. No.716 of 1980, filed by another tenant. Abdul Ghaffar Abdul Rehman, against us in this Court. Abdul Ghaffar Abdul Rehman was also a tenant in the same building in which the present appellant is tenant. In that F.R.A. No. 716 of 1980 our advocate was Mr. Ibrahim Peshori".
Q: Is it correct that after taking instructions from you or your father, your advocate in F.R.A. No. 716 of 1980 Mr. Ibrahim Peshori had informed the Court that the building that could be constructed on the plot in question after demolishing the existing building, w ill be a commercial building and various premises in the new building will be used or rented out or disposed of as commercial premises?
A: On question from the Court during the hearing of F.R.A. No. 716 of 1980, our advocate Mr. Ibrahim Peshori had taken instructions and I had given such instructions to Mr. Ibrahim Peshori as are mentioned in the question. These instructions were given on behalf of mv father.
(ii) That this Court failed to take into consideration the judgment rendered bv a Learned Single Judge of the High Court of Sind, Saleem Akhtar, J.(as he then was), in the case of U.S.A. Trading Company v. Asghar All and others (1986 C.L.C, 2121) in respect of the building in question, wherein he after examining the approved plan came to the conclusion that the ground floor of the new building could, be used for commercial! Purposes without disturbing the plan in the following words: "In the present case this building is situated in a predominantly commercial area. I have examined the approved plan of the respondent and strikingly the ground floor plan has been made in such a way that it can conveniently be used for commercial purposes without disturbing the plan in the least. This clearly supports the statement of the Learned counsel for the respondent in F.R.A. 716/80 and I am convinced that the ground floor of the new building will be let out for commercial purpose. This ground floor of the new building w ill hardly change its character".
As regards the scope of a review petition, he has relied upon the judgments of this Court in the case of it. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 S.C. 335), in the case of Eida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 S.C. 701), in the case of United Bank Limited through Senior Vice Presidem, Zonal Office, Faisalabad v. Muhammad Saleem Raza and two others (1994 S.C.M.R, 1795) and in the case of Mian Rafiq Saigol and another v.
Bank of Credit and Commerce International (Overseas) Limited and another (PLD 1997 S.C. 865).
On the other hand, Mr. Gulzarin Kiani, Learned ASC appearing for the respondents' first submission was that if this Court forms the view that the judgment in question deserves to be reviewed, this Court should not record any reason but by a short order allows the review petition and refix the hearing of the appeals. Reliance was placed by him on the case of Sheonandan Paswan v. State of Bihar and others (A.I.R. 1983 S.C. 112S). However, he candidly conceded that the above procedure needs not to be followed if we were to confine ourselves to the constructions of the relevant provisions of the Ordinance without referring to the factual controversy.
Then, he contended that the scope of a review petition is limited particularly in a case where the view adopted in the judgment of which review is sought, has been consistently taken by the same Court for a number of years. According to him, that the view which has been found favour in the judgment under review was, namely, that if a landlord changes the nature of the building on re- construction i.e. If the converts a commercial building into a residential building, sub-section (5-B) of Section 13 of the Ordinance cannot be availed of, is a view which was adopted in the case of Abdul Bari v. Khadim Hussain (supra), which was followed in 1980 in the case of Ghulam Nabi v.
Mushtaq Ahmad (supra) and then it was adopted in the case of Abdul Hadi alias Abdul Hadi Hasan and 2 others v. Syed Ali Haider and others (supra).
His further submission was that in order to justify a review of the judgment, it is incumbent upon a petitioner to show that the view which has been taken in the judgment under review was not possible at all and that the mere fact that two views were possible, would not be a ground for review. To reinforce the above submissions, Mr. Kiani has relied upon the following cases:-
(i) Sajjan Singh and others v. Tfc State of Rajasthan and others (AIR 1965 S.C. 845);
(ii) The Keshav Mills Co. Ltd. Period v. The Commissioner of Income Tax, Bombay North, Ahmedabad (AIR 1965 S.C. 1636);
(iii) Pillani Investment Corporation Ltd. v. The Income Tax Officer, A' Ward Calcutta and another (AIR 1972 S.C. 236);
(iv) Sow Chandra Kanta and another v. Sheikh Habib (AIR 1975 S.C. 1500);
(v) M/s. Northern India Caterers India) Ltd. v. it. Governor of Delhi (AIR 1980 S.C. 674);
(vi) Col. Avtar Singh Sekhom v. Union of India and others [AIR 1980 S.C. 2041);
(vii) A.R. Antulay v. R.S. Nayak and another (AIR 1988 S.C. 1531).
6. Before taking up the above contentions, we may observe e that we are not inclined to examine all the contentions raised by Mr. S. Sharifuddin Pirzada, Learned Sr. ASC for the petitioners, except contention No. (i) referred to hereinabove in Para 5 as the remaining contentions are new. They are not reflected in the judgment under review and they do not fall within the scope of review.
7. We may now refer to the relevant provisions of the Ordinance which are in issue, namely, Section I3(2)(vi) and Section 13 (5-B), which read as under:- "13.(1) ...............
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that:-
(i) .........
(ii) ........
(iii) .........
(iv) ............
(v) .............
(vi) the building or rented land is reasonable and is in good faith required by the landlord for the reconstruction or erection of a building or the landlord has obtained the necessary sanction for the said reconstruction or erection from the Town Improvement Trust, Municipal Committee or Town Committee for the area where such building or rented land is situated; Section 13 (5-B). Where, in pursuance of an order under clause (vi) of sub-section (2), a landlord has obtained possession of a building (in this sub-section referred to as the old building), and construct a new building on the same site, the tenant who was evicted from the old building may, before the completion of the new building and its occupation by another person, apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation, and the Controller shall make an order accordingly in respect of the area applied for or such similar area, as considering the location and type of the new- building and the needs of the tenant, he deems just, and on payment of rent to be determined by him on the basis of tent of similar accommodation in the locality.
8. A perusal of the above-quoted clause (vi) of sub-section (2) of Section 13 of the Ordinance indicates that a landlord is entitled to apply for eviction of a tenant if he reasonably and in good faith requires the building or rented land for reconstruction or erection and that he has obtained the necessary- sanction for the said reconstruction or erection from the authorities concerned.
Whereas sub-section (3-B) of Section 13 of the Ordinance confers a right on a tenant by providing that where in pursuance of an order under clause (vi) of sub-section (2) of Section 13, a landlord has obtained possession of a building, and constructs a new building on the same site, the tenant who was evicted from the old building, may before the completion of the new building and its occupation by another person, apply to the Rent Controller for an order directing that he be: put in possession of such area in the new building, which does not exceed the area of the old building of which he was in occupation and thereupon the Rent Controller shall make an order accordingly in respect of the area applied for or such similar area as considering the location and the type of the new building and the needs of the tenant which he may deem just on payment of rent of similar accommodation in the locality.
9. We may now take up the three judgments of this Court which have been referred to and relied upon in the judgment under review, namely:-
(i) Abdul Bari v. Khadim Hussain (PLD 1978 S.C. 78); in which the landlord sought ejectment of a commercial tenement on the ground of reconstruction. The Rent Controller dismissed the same by holding that the landlord failed to prove that he required the premises for reconstruction reasonably and in good faith. However, the above finding was reversed by the Learned District Judge, Sialkot. He concluded that there was reliable evidence to show that the landlord w anted to construct a house for his residence in place of the present building and that for this purpose he had already obtained the sanction of the Municipal Committee for the plan of the proposed reconstruction. The above finding of the Learned District Judge was upheld by the Lahore High Court in a second appeal. Then the matter was brought by way of an appeal with the leave before this Court and it was urged thai in view of sub-section (5-B) of Section 13 of the Ordinance, the landlord was not entitled to change the nature of the new building which would defeat the right of the tenant. The above contention was repelled by this Court by holding as under:- "We regret we cannot subscribe to this line of reasoning, as we find that clause (vi) of sub-section
(2) of Section 13 of the Ordinance does not by itself, impose any restriction or limitation as to the nature and purpose of the new building which is to be reconstructed in place of the old building. If this clause is to be read as being subject to the provisions of sub-section (5-B) of the same section in 'the sense that the nature and character of the building cannot be changed by reconstruction, then the result would be to prevent future development of property even though its environment and. The requirements of the community at large, may have changed. Such an interpretation would be altogether unreasonable and against the public interest, and should be avoided unless the words of the statute are so clear and unambiguous to make it inevitable. This does not appear to be the case here.
We consider, therefore, .That the ground of reconstruction mentioned in clause (vi) and sub- section (2) of Section 13 does not limit the same to reconstruction of a building of the same type and character and for the. Same purpose, namely, residential or non- residential as the case may be. However, the provisions of sub-section (5-B) would come into play if the reconstructed building is of the same type and character arid suitable for the same use as was the old building."
(ii) Ghulam Nabi v. Mushtaq Ahmad (PLD 1980 S.C. 206)
In the above case the facts Were that the landlord, who was a transferee of a garage from the Settlement Department, filed an ejectment application- against the tenant on the ground of reconstruction. The Learned Rent Controller dismissed the landlord's application for ejectment.
However, upon appeal, an Additional District Judge allowed the aforesaid ejectment application.
Then the tenant approached the High Court by-way of a second appeal. It was contended that the learned Additional District Judge had not recorded a finding that the landlord required the demised premises reasonably and in good faith. Consequently, the case was remanded to the Additional District Judge, who remanded the same to the Rent Controller for recording additional evidence. The Rent Controller after recording other evidence and also noting the undertaking given by the landlord remitted the case. She also observed in her order dated 10.6. f978 as under:- "gave an undertaking tb the effect that in case he fails to reconstruct the suit property after its demolition that suit property may be confiscated and he may be penalized to the tune of one lac.
He further deposed that he would let out the suit property to the respondent at-the prevailing market rent if it is not required by him after its; reconstruction. He stated that there are two garages which are proposed to be constructed.1 That about one garage this Court has already passed an ejectment order against the tenant named Muhammad Sharif.
The Learned Additional District Judge agreed with the view of the Rent Controller and allowed the landlord's appeal. The tenant's second appeal wa dismissed by the Peshawar High Court. Then, he filed a petition for leave to appear which was dismissed by this Court. Before this Court it was again urged that sub-j section (5-B) of Section 13 of the Ordinance could not be defeated by changing the purpose of the newly constructed building, but the above contention was again rejected as under:- "This sub-section only confers a right on a tenant to a lease or the demised premises after their reconstruction, and as the Controller is empowered to lease to the tenant in the new building a similar area then1 the premises originally demised to him, this express provision is inconsistent with the proposition that a landlord can reconstruct his property only in accordance with the needs of his tenant. Secondly, the! Option conferred on the tenant by this sub-section continues until the| completion of the new building and its occupation by another person. In view of the laws delays, this can only be many years after the landlord's reconstruction plan has- been approved by the local! Municipality, therefore, the plea that the landlord's rebuilding plan! Must conform to his tenant's requirements would lead to absurdity Thirdly, whilst a landlord cannot evict his tenant except on the grounds! Prescribed in the said Ordinance, a tenant is free to vacate the demised!
Premises after giving the contractual or statutory notice. As a tenant| can terminate his lease unilaterally, it would be extremely unjust and unreasonable if the landlord's right to rebuild and develop his property! Was subject to the tenant's veto, and injustice is not to be lightly| attributed to the Legislature".
(iii) Haiti alias Abdul Hadi Hasan and 2 others v. Syed Ati Haider and others (PLD 1983 S.C. 342):- in wich the facts were that the petitioners were three tenants occupying shops. The] landlord obtained ejectment order on the ground of reconstruction as the building! Was approximately 100 years old and was in a dilapidated condition. Under the approved plan, the landlord intended to construct residential building without I providing shops for the tenants. It was contended before this Court that the landlord! Could not defeat sub-section (5-B) of Section 13 of the Ordinance. The .Above! Contention did not find favour with this Court and that the same was rejected in the] follow ing words: 'The reading of both the provisions in harmony would yield the result thai sub-section (5-B) of section 13 comes into play only where the old building consisting of shops even after reconstruction retains the character of shops and also in those cases where the old building is a residential building and new building on re-construction is again built as a residential building. This sub- section would not apply in cases where a non-residential building is, after reconstruction, converted into a residential building'.
I0. The above view has been adopted in the judgment under review which has been reported under the title Asghar Ali and others v. Abdul Ghaffar Abdul Rehman and others (1992 S.C.M.I. 725) by holding as under:- "In the absence of any legal hindrance in the way of landlords to convert commercial building into residential, the landlord cannot be debarred to carry out his plans simply because it will prove an obstacle in the way of tenants to exercise his option available to him under section 13 (5-B). The apparent inconsistency between the two provisions of the statute has been amply taken care of by the Legislature itself by allocating separate operational field to each, 13 (2) (vi) having operation uncontrolled by 13 (5-B) and 13 (5-B) operating at a stage when 13 (2)(vi) has already taken effect.
In view of what has been discussed above, we have no reason to dissent from the dictum of the above-quoted cases of Abdu! Bari, Ghulam Nabi and Abdul Hadi. And hold that the provisions of section 13(2)(vi) are subservient to or controlled by the provisions of section 13 (5-B) and have to be considered independently by the Rent Controller while dealing with eviction petition under the Rent Law's, mote so, when the proposed reconstruction is from commercial building to residential one".
11. Mr. S. Sharifuddin Pirzada has pointed out that in the above first two cases the personal requirement was involved as is reflected by the narration of the facts and, therefore, the same are distinguishable. Whereas the aforesaid third case is on all fours applicable to the case in hand. His submission was that this Court has overlooked the important features of above sub-section (5-B) of Section 13 of the Ordinance inasmuch as it has overlooked the factum that it refers to new building without saying the same type of building and it has employed the word "area" and not the words 'shop' or 'residential premises'. In other words, according to him. a tenant has the option to apply under the aforesaid provisions of the Ordinance for an area in the new building notwithstanding the change of nature of the building.
12. We. May observe that the view taken by this Court in the aforementioned three judgments as well as in the judgment under review that sub-section I 15-B) of Section 13 of the Ordinance does not control clause (vi) of sub-section (2) of Section 13 thereof and that the landlord has the right to develop his property and I to change the nature of construction and that the tenant does not have any veto J power to prevent it by virtue of sub-section (5-B) of Section 13, seems to be in -j consonance with law. However, the conclusion that the provisions of sub-section ] (5-B) would come into play only if the constructed building is of the same type and character and suitable for the same use as was the old building, appears to be contrary to the language and spirit of Section 13(2)(vi) and Section 13 (5-B) of the Ordinance in view of the Use of the word "type" in the new building and not shop or residential premises. The above aspect has been touched upon by Saleem Akhtar; J while sitting as S.B. (as he then was) in the case of JU.SA. Trading Company v.
Asghar Air and others (supra) as under:- "The protection afforded to the tenant in case where the existing building is to be demolished and a new building is to be reconstructed is that the tenant can apply to the Controller for the possession of such area, in the new building which does not exceed the area of the old building of which he was in occupation. On. Such application being made the Controller can make order taking into consideration the location and type of new' building and the need of the tehanr. This provision as well as the earlier provision in the West Pakistan Urban Rent Restriction Ordinance, do not specifically impose a bar that if a commercial building is demolished and residential building is v constructed or vice versa then, the tenants who were occupying the premises and have been evicted will be debarred from filing application for obtaining possession for the same, similar or lesser area. It is also pertinent that the legislature has used the word "area" and not the words "shop": "room", "premises" or "house". Therefore, by using the - Word "area" the nature of-the premises has not been classified or restricted. The tenant can apply for an area but it is within the discretion of the Controller to decide what area should be given to him, and this discretion will be exercised by raking into consideration the location, the type and nature of the new building and the need of the tenant. It, therefore, cannot be ruled out that a tenant who has been evicted from a commercial building cannot apply for an area in a newly-erected residential building or vice versa.
It is possible that he may be needing the premises for his own residence. The object of the legislature is to protect the interest of tenants and not to deprive them of their rights which they are entitled under the law" .
Secondly, the tenant's right cannot be pre-empted/defeated at the stage of passing of ejectment order before the new building is constructed. The right to apply under the above sub-section (5-B) accrues to a tenant at the stage mentioned therein, namely, before the completion of the new building and its occupation by another person as held by this Court in the case of Hassan and others v. Fancy Foundation (PLD 1975 S.C. 1) in the following words:- There however, appears to be substance in the second limb of the argument of the appellants learned counsel, namely, that in the circumstances of the case, the advantage under newly inserted subsection (5-B) will be available to the appellants. The sub-section will come into operation in these cases after the ejectment of the appellants and reconstruction of the building which have yet to take place, in that sense, the application of sub-section (5-B) in favour of the appellants in these cases would be prospective even though some of the events, namely the initiation of the proceedings for eviction of the appellants had already taken place prior to enactment of the sub-section".
13. It is not uncommon but we may say it is more common in big cities like Karachi that the landlords get their building plans approved showing a particular nature of construction or certain number of floors but during the process they change the complexion of the construction and they get the revised plans approved after the completion of construction. It is a matter of common knowledge of which this Court can take judicial notice that in Karachi, some landlords show the ground floor in a commercial area as the parking lot for cars and other vehicles and the upper floors as residential, but after sometime, they convert the parking lot into shops.
14. We may now advert to the question, as to whether the above omission to take into consideration the above prominent features of sub-section (5-B) of Section 13 of the Ordinance brings the case within the ambit of the scope of review. In this behalf, reference may be made to Article 188 of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, Order XXVI, Rule 1 of the Supreme Court Rules, 1980, framed under Article 191 of the Constitution, hereinafter referred to as the Rules, and Order XLVII, rule 1, C.P.C.
Article 188 of the Constitution confers power on this Court subject to the provisions of any Act of the Parliament and any rules made by the Supreme Court to review any judgment pronounced or any order made by it. Whereas Order XXVI, rule 1 of the Rules lays down that subject to the law- and practice of the Court, the Court may review its judgment, order or any civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of C.P.C, and any criminal proceeding on the ground of an error apparent on the face of the record.
It may be observed that Order XLVII, rule 1 of C.P.C, gives a right to a party to apply for review if he is aggrieved by the orders or decrees, or decisions mentioned in sub-clauses (a), (b), (c) of rule 1 on the three grounds, namely, 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 the when the decree was passed on order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason.
15. We may now refer to the judgments relied upon by the Learned counsel for the parties. Mr. S. Sharifuddin Pirzada has referred to the following cases:-
(i) Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 S.C. 335).
(ii) Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad and another (PLD 1995 S.C. 701),
(iii) Suba through Legal Heirs v. Fatima Bibi through Legal Heirs and others (1996 SCM R 158);
(iv) Mian Rafiq Saigol and another v. Bank of Credit and Commerce International overseas) Limited and another (PLD 1997 S.C. 865);
(v) Unreported order in Civil Review Petition No. 1-K of 1989 (Begum Asfar Saeed and others v. Ch. Abdul Aziz) rendered by this Court on 10.3.1991.
In the above first case, Cornelius, C.J., made the following observations as to the scope of review:- "For the present purpose, the emphasis should, in my opinion, be laid upon the consideration that, for the doing of 'complete justice, the Supreme Court is vested with full power, and I can see no reason why the exercise of that full power should be applicable only in respect of a matter coming up before the Supreme Court in the form of a decision by a High Court or some subordinate Court. I can see no reason why that purpose in its full scope, should not also be applicable for the purpose of reviewing a judgment delivered by the Supreme Court itself: provided that there be found a necessity within -the meaning of the expression 'complete justice' to exercise that power. It must, of course, be borne in mind that by assumption, every judgment pronounced by the Court is a considered and solemn decision on all points arising out of the case, and further that every reason compels towards the grant of finality in favour of such judgments delivered by a Court which sits at the apex of the judicial system. Again, the expression 'complete justice' is clearly not to be understood in any abstract or academic sense. So much is clear from the provision in Article 163
(3) that a written order is to be necessary for the purpose of carrying out the intention to dispense "complete justice'. There must be a substantial or material effect to be produced upon the result of the case if, in the interests of "complete justice" the Supreme Court undertakes to exercise its extra- ordinary power of review of one of its own considered judgments. If there be found material irregularity, and yet there be no substantial injury consequent thereon, the exercise of the power of review to alter the judgment would not necessarily be required. The irregularity' must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice. Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the Constitution or with a law of Pakistan there it would be the duty of the Court unhesitatingly to amend the error. It is a duty which is enjoyed upon every Judge of the Court by the solemn oath which he takes when he enters upon his duties, viz. To preserve, protect and defend the Constitution and law of Pakistan.
In the above report, Kaikais, J., who rendered his separate opinion, made the following observations:- 'To permit a review on the ground of incorrectness would amount to granting the Court the jurisdiction to hear appeals against its own judgments or perhaps a jurisdiction to one Bench of the Court to hear appeals against other benches; and that surely is not the scope of review jurisdiction.
No mistake in a considered conclusion, whatever the extent of that mistake, can be a ground for the exercise of review jurisdiction. On a proper consideration it will be found that the principles underlying the limitations mentioned in Order XLVII, rule 1, Civil Procedure Code, are implicit in the nature of review jurisdiction. While I would prefer not to accept those limitations as if they placed any technical obstruction in the exercise of the review jurisdiction of this Court 1 would accept that they embody the principles on which this Court would at in the exercise of such jurisdiction. It 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. It is a remedy to be used only in exceptional circumstances'.
In the second case this Court comprising the then Learned Chief Justice and four companion Judges entertained a suo motu review and allowed the same for the following reasons:-
11. "The above case supports the petitioner's stand. Another aspect which escaped notice of this Court in the judgment under review is that some of the other civil servants/employees placed in the same position as the petitioner w as had been considered for promotion to BPS-17 and in fact were promoted, whereas the petitioner was denied the above benefit which amounted to violation of inter alia Article 25 of the Constitution of the Islamic Republic of Pakistan. 1973. In this regard, reference may be made to the case of I.A. Shanvani and others v. Government of Pakistan through Secretary, Finance Division. Islamabad and others (1991 SCM R 1041).
12 ................
13 ..................
14. The upshot of the above discussion is that the judgment under review is liable to be recalled as it proceeded on wrong premises. We would, therefore, allow the above Suo Mom Review Petition and recall the above judgment. In consequence thereof, petitioner's Civil Appeal No. 216 of 1991 is allowed and the judgment of the Tribunal is set aside and the respondents are directed to consider the petitioner's case for promotion to BPS-17.
In the third case this Court, while accepting a review petition, made following observations:- "From the above discussed legal position, it emerges that a petition for review before this Court would lie on grounds, which are analogous to those embodied in Order XLVII, Rule 1, C.P.C. The review petition would also be competent if something which is obvious in the judgment has either been overlooked and that if it would have been considered by the Court, the final result of the case would have been otherwise. No review petition, however, would lie on the ground of a wrong decision by the Court or that another view is possible on reconsideration.
In the fourth case also the scope of review was succinctly discussed by this Court after referring the relevant case-law and in this regard the following observations were made:- "From the preceding discussion it follow's that review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view' on reconsideration is possible. Review also cannot be allowed on the ground of discovery' of some new material, if such material was available at the the of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberations, and have a material bearing on the final result of the case.
In the last unreported order of this Court in the case of Begum Asfar Saeed and others v. Ch. Abdul Aziz, after referring a number of cases, the following conclusion was recorded as to the scope of a review:- "From an examination of the aforesaid precedents of this Court, it seems settled that overlooking some important aspect of the matter from consideration or an erroneous assumption of a material fact affecting the conclusion reached in the judgment are valid grounds on which the review of a judgment can be permitted. In view of what is stated it is not necessarily to refer to the judgments cited by the respondent on the scope of review, because mostly the cases relate to re-argument of an appeal in review jurisdiction which is. Not permissible, or to the raising of pleas which w ere not agitated at the hearing of the appeal or contained a re-assertion of the law as laid down in the case of Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335) on which the respondent himself relied.
I6. We may now refer to the following cases relied upon by Mr. Gulzarin Kiani. Learned ASC for the respondents:-
(i) Sajjan Singh and others v. The irate of Rajasthan and others (AIR 1965 S.C. 845);
(ii) The Keshav Mills Co. Ltd. Petlad v. Die Commissioner of Income Tax, Bombay North, Ahmedabad (AIR 1965 S.C. 1636);
(iii) Pillani Investment Corporation Ltd. v. The Income Tax Officer, 'A' Ward Calcutta and another (AIR 1972 S.C. 236);
(iv) So Chandra Kama and another v. Sheik Habib (AIR 1975 S.C. 1500);
(v) M/s Northern India Caterers (India) Ltd. v. it. Governor of Delhi (AIR 1980 S.C. 674);
(vi) Col. Avtar Singh Sekhom v. Union of India and others (AIR 1980 S.C. 2041):
(vii) A.R. Antulay v. R.S. Nayak and another ( AIR 1988 S.C. 1531).
In the above first case, the Indian Supreme Court while dilating upon Article 141 of the Indian Constitution relating to the power of review- of the Supreme Court observed that the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decision or event to depart from them and any matters relating to the decision of Constitutional points which have significant impact on the fundamental rights of citizens, it would be prepared to review its earlier decision in the interest of public good and that the doctrine stare decisis may not be strictly applied in this context. It was further observed that this doctrine will not be permitted to perpetuate erroneous decisions announced by the Supreme Court to the detriment of the general welfare. It was also observed that the question, whether different view is to be taken, would depend on the nature of infirmity alleged in the earlier decision, its impact on public good and the validity and completing character of situations urged in support of the contrary view.
In the second case the Indian Supreme Court examined the scope as to when it should change its previous view in the following words:- When it is urged that the view already taken by this Court should be reviewed and revised it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable, in reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Art. 141, binding on all Courts within the territory of India, and so. It must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law' in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said law is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:- What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain un- noticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed is the Court hearing such plea fairly unanimous that there is such an error in the earlier view what would be the impact of the error on the general administration of law of on public good has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts and would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five Learned Judges of this Court".
In the third case it was urged by the Indian Supreme Court that when it was not shown that the earlier judgment of the Supreme Court was erroneous or that any vital point was not considered, the Supreme Court would decline to review its earlier judgment.
In the fourth case, KrishmaIyer, J. Made the following weighty observations as to the scope of review:- "Mr.- Daphtary, Learned counsel for the petitioners, has argued at length all the points which were urged at the earlier stage when we refused special leave thus making out that a review proceeding virtually amounts to a re-hearing. May be we were not right in refusing special leave right in the first round but, once an order has been passed by this Court, a review thereof must be subject to the rules of the game and cannot be rightly entertained. A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of counsel's certificate which should not be routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public the lost what with a huge back-log of dockets waiting in the queue for disposal, for counsel to issue easy certificates for entertainment of review and fight over again the battle which has been fought and lost.
In the fifth case, Krishma Iyer, J. Of the Indian Supreme Court again enunciated the scope of a review by holding that a party is not entitled to seek a review of the judgment delivered by the Supreme Court merely for the purpose of re-hearing and a fresh decision of the case. It has been pointed out that the normal principle is that a judgment pronounced by the Court is final and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do.
In the sixth case, Krishma Iyer, J. Again reiterated that review is not a routine procedure but the material error should be manifest on the face of the earlier order resulting in miscarriage of justice and must be proved. in the seventh case, the Indian Supreme Court highlighted that there is no distinction as to the power between benches of the Supreme Court because of the number of Judges constituted the same, in the following words:- "It is the to sound a note of caution. The Supreme Court under its Rules of Business ordinarily sits in divisions and not as a whole one. Each Bench, whether small or large, exercises the powers vested in die Court and decisions rendered by the benches irrespective of their size are considered as decisions of the Court. The practice has developed that a larger bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court.
That principle, however, would not apply in the instant case and a Bench of Seven Judges is not entitled to reverse the decision of the Constitution Bench. Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in particular case.
17. From the above case-law, the following principles of law are deducible:
(i) That every judgment pronounced by the Supreme Court is presumed to be a considered, solemn and final decision on all points arising out of the case;
(ii) That if the Court has taken a conscious and deliberate decision on a point of fact or law, a review petition will not He;
(iii) That the fact the view, canvassed in the review petition is more reasonable than the view found favour with dm Court in die judgment/order of which review is sought, is not sufficient to sustain a review petition;
(iv) That simpliciter the factual that a material irregularity was committed would not be sufficient to review a judgment/order but if the material irregularity was of such a nature, as to convert the process from being one in aid of justice to a process of injustice, a review petition would lie;
(v) That simpliciter the fact that the conclusion recorded in a judgment/order is wrong does not warrant review of the same bat if did conclusion is wrong because something obvious has been overlooked by the Court or it has failed to consider some important aspect of the matter, a review petition would lie;
(vi) That if the error in the judgment order is so manifest and is floating on the surface, which is so material that had the same been noticed prior to the rendering of the judgment the conclusion would have been different, in such a case a review would lie;
(vii) That the power of review cannot be invoked as a routine matter to rehear a case which has already been decided nor change of a counsel would warrant sustaining of a review petition, but the same can be pressed into service where a glaring omission or patent mistake has crept in earlier by judicial fallibility:
(viii) That the Constitution does not place any restriction on the power of the Supreme Court to review its earlier decisions or even to depart from them nor the doctrine stare decisis will come in its way so long as review is warranted in view of the significant impact on the fundamental rights of citizens or in the interest of public good;
(ix) That the Court is competent to review its judgment/order suo morn without any formal application;
(x) That under the Supreme Court Rules, it sits in divisions and not as a whole. Each Bench whether small or large exercise the same powers vested in the Supreme Court and decisions rendered by the benches irrespective of their size are decisions of the Court having the same binding nature.
18. If we were to apply the above principles of law to the case in hand, it becomes evident that this Court has overlooked a very important and obvious fact that the cause of action to a tenant to apply to the Rent Controller for an order directing that he be put in possession of such area in the new' building which does not exceed the area which he was. In occupation in the old building, in case the ejectment order is granted under section 13( 2 X vi) of the Ordinance on the ground of reconstruction arises under sub-section (5-B) thereof not at the the of grant of ejectment order but before the completion of new? Building and its occupation by another person. This Court has also overlooked the legal implication of the use of the word "area" in the new building and not the words 'shop or residential premises'. As a corollary it must follow that the conclusion recorded by this Court in the above earlier cases on the basis of the approved plans, even before the commencement of the construction of the then proposed building that the provision of sub- section (5-B) of the Ordinance would come into play if the reconstructed building was of the same type and character and suitable for the same use as was the old building not warranted by law, as it pre-empted the causes of action of the tenants which had by then not accrued to them. The question, whether a tenant is entitled in invoke above sub-section (5-B) of the Ordinance, cannot be decided on the basis of the approved plan, which a landlord may produce at the the of seeking ejectment order but it is to be determined on the basis of the building which is actually constructed. We may again point out that a landlord may. Construct a building other than of which he got the plan approved. In other words, he may deviate from the approved plan. The view, which we are inclined to take, is in line with the judgment of this Court in the case of Hassan and others v.
Fancy Foundation (supra), quoted hereinabove in para l2, of which notice was not taken in the judgment under review.
Additionally, we may point out that the point involved affects a large number of tenants in respect of tenements which carry huge amounts of pugri in a city like Karachi and, therefore, we are of the view that it is a fit case where this Court should invoke in aid the power of review to eliminate miscarriage of justice.
19. We would, therefore, allow the above review petitions to the extent that the petitioners/tenants will have the right to apply in terms of sub-section (5-B) of Section 13 of the Ordinance to the Rent Controller at the stage mentioned hereinabove, namely, before the completion of the building and before its occupation by another person in terms of the above sub-section and the Rent Controller concerned shall decide applications for the above request according to law. The review petitions are allowed to the above extent. There will be no order as to costs.