Brief facts leading to the, review petition in hand are that one Zaman Khan son of Hijab resident of village Khwaishki Payan, Tehsil and District Nowshera was owner in possession of the property in dispute described in the heading of the plaint. Zaman Khan died in the year 1936 and his inheritance devolved upon Mst. Shahmero, his widow, therefore, inheritance Mutation No,742 was attested in her favour on 19-7-1936. After the death of Zaman Khan, his son namely Aman Khan was born and inheritance Mutation No,791 was attested on 8-5-1937 in his name. He (Aman Khan) also died after a few days, therefore, once again inheritance Mutation No,844 was sanctioned on 14-8- 1937 in favour of Mst. Shamero. Sardar Khan etc., the respondents filed suit in the year 1987 in the Court of Senior Civil Judge, Nowshera claiming 5/6 Shari share from the estate of Zaman Khan through two sisters namely Mst. Gulai and Mst. Marsai by assailing the correctness of Mutation No,844 attested on 14-8-1937. The said suit was resisted by Mst. Shahmero and the learned trial Court vide judgment and decree dated 19-1-1992 passed decree in favour of Sardar Khan etc. On appeal, the said judgment and decree was modified by the learned Additional District Judge Nowshera and the respondents/plaintiffs were granted decree to the extent of 14/24 share in the suit-land. Mst. Shahmero being not satisfied with the judgment and decree passed by the learned Additional District Judge dated 16-4-1993 filed C.R. No,514/93 before this Court. The said petition came up for hearing before the then Hon'ble Chief Justice of this Court on 5-11-1998. Mst. Shahmero the petitioner in C.R. No,514 of 1993 despite service did not attend the Court, therefore, her revision petition was dismissed on merits in her absence on 5-11-1998. She has now moved this Court for review of the order dated 5-11-1998 or in the alternative for restoration of revision petition considering it to be dismissed in default on account of non-appearance of the petitioner through the review petition in hand.
2. Mr. Mian Muhammad Younis Shah, the learned counsel representing the petitioner argued that in case of the absence of the petitioner, this Court had no jurisdiction to dismiss the revision on merits. It could only be dismissed for non-prosecution and since no rules for revision have been framed in C.P.C., therefore, the rules applicable to the appeal shall be applicable as analogy.
3. 'It was further argued that since no period for the restoration of revision for non-prosecution has been prescribed, therefore, residuary Article 181 of the Limitation Act shall be applicable which prescribes a period of limitation of 3 years. The impugned order was passed by this Court on 5-11- 1998 and the review petition was filed on 16-9-1999, i,e, within a period of 3 years, therefore, the same was within time.
4. On the other hand Haji Muhammad Zahir Shah, the learned counsel representing the respondents argued that the review petition is hopelessly barred by time. Article 173 of the Limitation Act prescribes period of 90 days from the date of order or decree but in case in hand the order was passed on 5-11-1998 whereas the review petition was filed on 16-6-1999. It was further argued that the grounds on which an order/judgment could be reviewed are not available to the petitioner.
5. Regarding the alternate prayer it was argued that since the revision petition was dismissed on merits, therefore, the same could not be restored. The petitioner, should see other remedies available to her under the law.
6. So far as the argument of.The learned counsel for the petitioner that in case of absence of the petitioner, the Court had no jurisdiction to decide the revision petition without hearing the petitioner on merits and the same should have been dismissed in default has no force at all. Section 115, C.P.C. Does not confer any substantive right to the petitioner because revision is a matter between the higher and the subordinate Court and the right to move a petition in this respect by the petitioner is merely a privilege. The provisions of section 115, C.P.C. Only apply to the cases involving the illegal assumption, non-exercise or irregular exercise of jurisdiction and the same cannot be invoked for conclusion of law or fact which do not in any way affect the jurisdiction of the Court. The High Court may even suo motu interfere where the subordinate Court has (a) exercised jurisdiction not vested in it or (b) failed to exercise jurisdiction vested in it or (c) acted in exercise -of its jurisdiction illegally or with material irregularity and may make such order as it thinks fit. It is established law by now that where the aforesaid conditions are not satisfied, the High Court would not interfere, in its revisional jurisdiction under section 115, C.P.C. The plain reading of the said section indicates that it is only the satisfaction of the revisional Court regarding the proper exercise of jurisdiction or exercise of jurisdiction illegally or with material irregularity by the subordinate Courts when interference under the above-quoted law can be made.
7. In the case in hand, the petitioner had been served, she opted to remain absent, the Court had two options, either to dismiss the revision for non-prosecution or to take agonies of going through the record of the lower Courts to ascertain as to whether there was any jurisdictional errors in the judgments and decrees of the Courts below. The then Hon'ble Chief Justice opted to exercise jurisdiction by taking the pains to go into the record of both the Courts below and decided the revision petition on merits which under the law he was empowered to do.
8. The argument of the learned counsel for the petitioner that the revision petition decided in the absence of the petitioner should by presumed to have been dismissed in default.And be restored has no force. It was the petitioner who had invoked the jurisdiction of this Court under section 115, C.P.C. By filing revision petition, she should have been vigilant to pursue her petition. She was properly served for 5-11-1998. Neither she nor her counsel attended the Court and opted to remain absent on the fixed date, when the revision petition was decided on merits. The petitioner did not bother to know the outcome of her case and it was after about 7 months and 11 days that she filed the review petition in hand. Since the revision petition had been decided on merits, therefore, the same cannot be presumed to have been dismissed for non-prosecution and cannot be restored.
9. The argument of the learned counsel .For the respondents that the review petition is hopelessly barred by time and the grounds on which the order/judgment could be reviewed are not available to the petitioner has a force in it. The judgment/decree was passed by this Court on 5-11-1998 when the revision petition was decided on merits. Limitation period prescribed under Article 173 of the Limitation Act is 90 days from the date of order or decree. The petitioner who had invoked the jurisdiction of this Court under section 115, C.P.C. Was not, vigilant to pursue her petition so much so that she did not bother to know about the fate of her petition for about 7 months. It was after 7 months and 11 days that she filed the review petition in hand and neither any application for condonation of delay has been filed nor any prayer during the argument was made at the bar for condoning the said delay, therefore, the review petition is hopelessly barred by time.
Review of an order or decree can be sought on three ground's namely, discovery of new and important matter or evidence which, after 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 record, or for any other sufficient reason. In the case in hand the review of the order/decree passed by this Court on 5-11-1998 has not been sought on the grounds mentioned above. It is also an established law by now that review proceedings cannot partake re-hearing of a decided case. If the Court has taken a conscious and deliberate decision of a point of law or fact while disposing of 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. Wisdom has been sought from Abdul. Ghaffar and others v.
Asghar Ali and others PLD 1998 SC 363 and Mian Rafiq Saigol and another v. Bank of Credit and Commerce International ,(Overseas) Ltd. And another PLD 1997 SC 865.
10. Keeping in view the above discussion, I find no merit in the petition in hand (Review Petition No,24 of 1999) the same is, therefore, dismissed with no order as to costs.