Case Summary & Legal Holding

This judicial decision was delivered by the Peshawar High Court on 2007-07-09. The matter involves proceedings between ABDUL SHAKOOR and MUHAMMAD ZAFFAR ULLAH KHAN and 4 others, officially reported as 2008 PLJ 97. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.

Full Judgment Text & Judicial Ruling

Court Name: Peshawar High Court Judge(s): Ijaz-ul-Hassan Khan Title: ABDUL SHAKOOR vs MUHAMMAD ZAFFAR ULLAH KHAN and 4 others Case No.: R.P. No, 10 of 2007 with CMs. No, 9 and 20 of 2007, in C.R. No, 1238 of 2005 Date of Judgment:2007-07-09 Reported As: PLJ 2008 Peshawar 97 Result: Petition dismissed

JUDGMENT

JUDGMENT Through instant Petition, Abdul Shakoor petitioner, seeks review of the judgment dated 9.2.2007, passed by this Court in Civil Revision No, 1238/2005, captioned Abdul Shakoor petitioner vs. Muhammad Zafarullah Khan and others, respondents. The petition has arisen in the following circumstances:-- Respondent. No, 1 filed a suit for possession through partition of suit house, situated at Mauza Jangal Khel, Kohat. The trial Court, sed, preliminary decree on 13.3.1997 in favour of Plai If/Respondent No 1. Thereafter the decree holder/Respondent No 1 moved an application for the grant of final decree. The learned Civil Judge, appointed local commissioner in order to ascertain the-fact, whether the disputed house was partition able or not. The local commissioner visited the spot and submitted his report on 2.2.2003,which was brought under challenge on various grounds. The commission report was set aside and a new commission was appointed, who submitted his report on 21.6.2003. The petitioner objected the report. After the examination of the commissioner as CW, learned trial Court confirmed his report and also passed the final decree on 24.4.2004. The petitioner, filed an appeal on 2.6.2004, but the same was dismissed on 8.7.2005 by learned Additional District Judge, Kohat. A civil revision was filed in this. Court, which also met the same fate. Hence instant review petition. 2. Mr. M.S.H. Qureshi, Advocate appearing on behalf of the petitioner, assailed the judgment under review on a number of grounds and attempted to argue that the provisions of Section 2 of the Partition Act, 1893, and the statement of CW. 1/Commissioner have not been taken into consideration which has resulted in complete failure of justice and provides a valid ground for review of the judgment of this Court.

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3. Mian Mohibullah Kakakhel, Advocate for the respondents, on the other hand, refuted the arguments of learned counsel for the petitioner and supported the impugned judgment whole heartedly, maintaining that the contentions raised by learned counsel for the petitioner have been exhaustively dealt with in the judgment under review and learned counsel has not been able to point out any such error of law in the judgment or interference in the review jurisdiction. To supplement the contentions, reliance was placed on Mian Rafiq Saigol and another. Vs. Bank of Credit & Commerce International (Overseas) Ltd and another (PLD 1997 Supreme Court 865). 4. The exercise of review jurisdiction does not mean a rehearing of the matter and as finality attaches to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions, which converge on the merits of the decision. It needs no reiteration that before an error can be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of ratiocination. It is not denied that 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 time of hearing of appeal or petition but not produced. The contentions of learned counsel for the petitioner as rightly urged, are nothing but reiteration of the same grounds, which were urged at the hearing of revision petition, but were rejected by this Court after consideration. These contentions cannot be allowed to be raised again in review proceedings as in the garb of proceedings for review, the petitioner cannot obtain re-hearing of his revision petition. The august Supreme Court of Pakistan in Sh. Mehdi Hassan. Vs. Province of Punjab through Member, Board of Revenue and 5 others (2007 SCM R 755), observed: "This is settled law that the points already raised and considered before the Court, cannot be re- agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the face of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law." 5. Pursuant to above, I find that no ground for review is made out. The review petition fails, which is hereby dismissed alongwith listed C.Ms. No order as to costs.

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