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Civil Review Petition No. 40 of 1968, decided on 11th October 1968.

(On review from the judgment of the Supreme Court, dated the 21st May 1968, in Civil Appeal No. 14 of 1966).

Art. 62 and Supreme Court Rules, 1956, O. XXYI‑Review‑Supreme Court while passing previous order in no way misled in its decision by error of High Court‑Review in circumstance not called for.

Ghulam Mujaddid Mirza, Senior Advocate Supreme Court instructed by Mushtaq Ahmad Khawaja, Senior Attorney for Petitioners.

Azim Din Choudhury, Advocate Supreme Court instructed by Abdul Karim, Attorney for Respondents.

Date of hearing : 11th October 1968.

This is a petition for the review of a considered judgment of this Court in Civil Appeal No. 14 of 1966, delivered on the 21st May 1968.

Review is sought on two grounds, namely, (i) that ‑the attention of this Court was not drawn to an inaccuracy in the judgment of the High Court to the effect that Malik Din, the petitioner, had in his appeal before the Collector, filed on the 11th May 1955, admitted "the factum of gift by his father Imam Din" in favour of the son of another pre‑deceased son of his and (ii) that the grounds of appeal filed before the Collector by Malik Din were not produced before this Court. It is urged that it maybe that on this account this Court too was under a misconception that the factum of the gift was not challenged by the petitioner in his earlier appeal before the Collector.

The question that fell for decision in the appeal was as to the validity of an oral gift made by Imam Din in favour of his grandson on the 17th April 1955, which was mutated by two separate mutations on the 18th April 1955. This Court, agreeing with the High Court, upheld the validity of the gift and dismissed the suit filed by Imam Din to have the gift declared invalid and to have the mutation cancelled.

So far as this Court was concerned, it was in no way misled I by the error of the High Court, for, what this Court said was to [A the following effect

"In this appeal, he did not challenge the factum of the muta tion but merely alleged that the gift had been illegally made and was invalid because Imam Din was of unsound mind at that time."

The recital in the order of the Collector, as was pointed out by this Court, was admitted merely "to prove the grounds upon which Malik Din had on the previous occasion sought to challenge the mutation" as secondary evidence of the substance of his pleadings, that is, his memorandum of appeal and not to prove the truth of the recital.

The contention, therefore, that the decision of this Court would have been different if this alleged inaccuracy had been brought to the notice of this Court is wholly misconceived, for, this Court was fully conscious of the fact that Malik Din had even in May 1955, challenged the validity of the gift.

So far as the discovery of new evidence is concerned, it is true that the grounds of appeal of Malik Din in the appeal filed by him on the 11 May 1955, were not placed before the Court, but this was not due to the fact that these grounds could not have been discovered by Malik Din even after the exercise of due diligence at the relevant time. He well knew that he had filed an appeal before the Collector to challenge a mutation. He must, therefore, have also known the grounds that he had taken in that appeal. If he wished to rely upon them, it was for him to put them in the trial Court. The document was easily avail able to him. Having failed to do so then, he cannot now seek to have them put in for the purposes of a review, after the recital in the order of the Collector had been accepted as secondary evidence of those very grounds.

Apart from this, even after looking into these grounds it does not appear to us that there is anything in them which would have materially affected the decision of this Court.

In the circumstances no ground has been made out which would merit a review of the judgment of this Court. This petition e is, accordingly, dismissed.

Petition dismissed.

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