1. On receipt of notice of violation of Sindh Buildings Control Ordinance, 1979 and the Approved Building Plan from Karachi Buildings Control Authority, the plaintiff on 4-3-2000 filed the present suit seeking a declaration that the notice issued by KBCA was illegal, mala fide and without lawful authority and permanent injunction restraining KBCA from interfering with the use of the Premises No,150-F, Block-II, PECHS, Karachi for commercial purposes. The plaintiff also sought temporary injunction which was granted. After hearing the learned counsel at length, the Court by Order dated 6-9-2002 came to the conclusion that the suit filed by the Plaintiff was not maintainable and accordingly rejected the plaint. On the same day the plaintiff filed an application (C.M.A. No,6084 of 2002) under Order 41, rule 5 read with Order 43, rule 2 and section 151, C.P.C. For suspension of the operation of the aforesaid order. Notice of the application was ordered to the defendants for .9-9-2002 and the operation of the Order dated 6-9-2002 was suspended. Thereafter, on 7-9-2002, plaintiff filed another Application (C.M.A. No,6105 of 2002) under Order 47, rule I read with section 151, C.P.C. For review of the Order dated 6-9-2002 of which a notice was issued to KBCA. On 16-9-2002, Ms.Zahida Naqvi appeared on behalf of KBCA and sought time to file counter-affidavits in respect of both the applications. The interim relief granted to the plaintiff was extended and continues till today. The principal application which requires decision is C.M.A. No,6105 of 2002 for review of the order dated 6-9-2002. The plaintiff has taken two grounds for review of the order, which are:
(i) That according to paragraph 24 of the order the plaint has been rejected, inter alia, on the ground that.The plaintiff had not provided any proof of payment of Rs,15,00,000 to PECHS when a copy of the receipt of such payment was filed. As Annexure 'A' to the plaintiff's counter-affidavit in reply' to defendant's Application No,4625/2000 and again attached a copy of the same with the application as Annexure 'A.
(ii) That the plaintiff had applied for regularization of the unauthorized construction under the Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance, 2002 and had paid a sum of Rs,15,882 as Scrutiny Fee to KBCA, a copy of which was filed with the application (C.M.A. No,6105 of 2002) as Annexure B-2. KBCA filed a counter-affidavit to the review application and with reference to paras. 3 and 4 of the affidavit stating the above grounds in support of the review application submitted as follows: "5. That the application is not maintainable on the grounds mentioned in paras. 3 and 4 of the affidavit. The regularization plan submitted by the plaintiff is pending with the authority under scrutiny process. It is further stated that it is a separate issue and will be decided according to the rules by the defendant i,e, KBCA." I have heard the arguments of Mr.Shahenshah Hussain, learned counsel for the plaintiff in support of the review application and the arguments of Ms.Zahida Naqvi, learned counsel for KBCA who urged dismissal of the same. The relevant portion of Order XLVII, rule 1, C.P.C. Relating to review reads as follows: Application for review of judgment.---(1) Any person considering himself aggrieved--
(a) by a 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. In the present case clause (1)(c) of Order XLVII is applicable. To justify review under this clause the plaintiff has to show 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 order was made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. In the present case, there has not been any discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the plaintiff or could not be produced by him at the time the order was passed. I have gone through the entire Court file and find that none of the documents tiled with the application for review were filed earlier at any point of time. The counter-affidavit filed by the plaintiff in reply to defendant's Application C.M.A. No,4625 of 2000 though mentions the payment of Rs,15,50,000 towards the conversion charges to PECHS and the receipt in respect thereof but the same was not attached with the counter-affidavit. The plaintiff also did not file any copy of the receipt of payment of Rs,15,882 as Scrutiny Fee on 5-8-2002 and 15-8-2002 when the matter was fixed in Court to hear the counsel on the effect of 2002 Amendment made in the SBCO 1979. In view of the aforesaid facts, KBCA has correctly stated in its counter-affidavit that the application for review on the grounds stated in the application is not maintainable. KBCA has, however, admitted that the regularization plan submitted by the plaintiff is pending with the Authority under scrutiny process which is a separate issue and will be decided according to the rules by it.
3. From the above discussion, it is clear that the documents filed by the plaintiff along with the review application were in his possession but he did not file them in Court at any time. Even if the documents had been filed it would not have made any difference in the ultimate decision. It cannot also be argued that the Court came to a wrong conclusion on account of some mistake or error apparent on the face of the record. No other argument has been advanced in support of the review application. It is accordingly dismissed. Consequently, the interim order of suspension of the Order dated 6-9-2002 stands terminated.