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Civil Appeal No. 4‑P of 1969, decided on 4th December 1972.

(On appeal from the JUDGMENT and order of the Peshawar High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 5th July 1966, in Civil Revision No. 219 of 1958).

Review‑Expression "error apparent on face of record"‑JUDGMENT of Full Bench of High Court binding on all Division Benches and Single Judges‑Omission, by Single Judge, to notice such JUDGMENT is omission to notice a law declared and would thus be an "error apparent on face of record"‑Review of JUDGMENT, in circumstance, maintainable ‑ Review, however, discretionary-- Court not bound to grant review even where adequate ground exists‑Discretion, nevertheless, must be exercised upon sound judicial principles.

A JUDGMENT by a Single Judge was sought to be reviewed on the ground that he had failed to notice a Full Bench decision of the same High Court to the contrary which had been decided but not reported by the time his JUDGMENT was announced. The Single Judge refused review holding that the decision of the Full Bench, although binding on him, had not been reported and as such there was no sufficient ground for review under order XLVII, rule 1, C. P. C.

Held; A JUDGMENT of a Full Bench also decides authoritatively for the High Court the point of law referred to it and, therefore, to that extent also declares the law with respect to that point. That declaration of law is binding on all other Benches of the High Court until set aside or reversed by another Full Bench of the same High Court or by a superior Court. Failure to notice such an authoritative decision would, there fore, clearly be an error apparent on the face of the record, the single Judge was, therefore, not right in holding that the review petition was not maintainable.

The granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles.

Majid Khan v. Mujahid Khan P L D 1966 Pesh. 264; Subbier v. Chinnappa Rowthen A I R 1915 Mad. 1068; Garabini Kamarin v. Surji Narain Singh A I R 1924 Pat. 250; Natesa, Naicker v. Samabanda Chettiar A I R 1941: Mad. 918; Murari ,Rao v. Balvanth Dikshit I L R 46 Mad. 955; Smt. Selha Del ,v. Keshab Charon Mahanty A I R 1946 Pat. 188; Muhammad Khan v. Pakistan P L D 1958 Kar. 75 and Chhajju Ram v. Neki A I R 1922 P C 112 ref.

S. 5(c)‑ ‑Interpretation of cl. (c) in Majid Khan v. Mujahid Khan P L D 1966 Pesh. 264 not approved by Supreme Court.

Muhammad Yunis Shah, Advocate Supreme Court instructed by Abdul Samad Khan, Advocate‑on‑Record (absent) for Appel lant.

Ghazanfar Ali Shah, Advocate Supreme Court instructed by Abdul Waheed Khan, Advocate‑on‑Record for Respondent.

Date of hearing: 4th December 1972.

‑‑This appeal, by special leave, arises out of a JUDGMENT of a learned Single Judge of the former High Court of West Pakistan, Peshawar Seat, in Civil Review No. 85 of 1966.

This review arose out of a suit for possession, by pre-emption, of the land which was sold by one Mir Akbar Shah for a sum of Rs. 1,000. The land was comprised in Khasra No. 6489/1975 of village Zaida in the District of Mardan. The sale was effected by Mutation No. 8338 attested on 23‑4‑1956. The present appellant claiming to be a resident of ‑the same village brought the suit on the ground that he was a co‑sharer in the khasra and, therefore, had a preferential right do pre‑empt against the respondent‑vendee.

The respondent contested the suit by setting UP the plea that, as he did not own any house or any vacant site measuring more than one kanal in the village, he had purchased the suit land for the construction of a house for his own occupation and, as such, the sale was exempt from pre‑emption under section 5 (c) of the North‑West Frontier Province Pre‑emption Act, 1950.

He also maintained that he had paid Rs. 1,000 as the consideration for the sale.

The trial Court found In favour of the vendee‑respondent and held that the sale was exempt from pre‑emption. The suit costs the pre‑emptor‑appellant was accordingly dismissed with costs.

On appeal, the Senior Subordinate Judge, Mardav, held that the vendee‑respondent had failed to prove that he had purchased, the land for building a house for his own occupation. He also found that the vendee‑respondent owned a share in an ancestral house situated on a little more than 7 marlas of land. Hence he was not a person who was entitled to claim the exemption under section 5(c) of, the North‑West frontier Province Pre‑emption Act, 1950. The learned Subordinate Judge also found that only Rs. 700 bad been shown to have been paid as the price of the land and, therefore, he reversed the JUDGMENT of the trial Court and decreed the suit for pre‑emption, on payment of Rs. 700.

As against this JUDGMENT, the vendee Mir Akbar Shah went to the High Court in revision under section 34 of the North‑West Frontier Province Courts Regulation, 1931. A learned Single Judge of the High Court accepted the revision on the ground that the findings of the Court below clearly established that the vendee was only owner of about 3 marlas out of house measuring 7 marlas and 3 sirs, and since this was less than one kanal, clause (c) of section 5 of the North‑West Frontier Province Pre‑emption Act was attracted. The trial Court was, therefore, right in dismissing the suit for pre‑emption. The revision was accordingly accepted, the JUDGMENT and decree of the learned Subordinate Judge was set aside and the suit for pre‑emption was dismissed with costs.

This was the JUDGMENT that the pre‑emptor sought to, be reviewed on the ground that the learned Single Judge had failed to notice a Full Bench decision of the same High Court to the contrary in the case of Majid Khan V. Mujahid Khan (P L D 1966 Pesh. 264) which had been decided on the 21st of July 1965, but the JUDGMENT therein had admittedly not been reported even up to the 5th of July 1966, when the JUDGMENT in the revision matter was announced by the learned Single Judge.

The learned Single Judge, after examining a number or decisions came to the conclusion that the failure to notice even a JUDGMENT binding on him, but not till then reported, was not a sufficient ground for review under rule 1 of Order XLVII of the Code of Civil Procedure. The review was accordingly dismissed.

Leave was granted in this case on the 3rd of April 1968, to consider as to whether the omission to notice a Full Bench authority of the same High Court, taking a view contrary to that which prevailed in the JUDGMENT sought to be reviewed, was a sufficient ground for review under Order XLVII, rule 1 of the Code of Civil Procedure.

Learned counsel appearing in support of this appeal has contended that a JUDGMENT of a Full Bench of the High Court, which is binding on all Division Benches and learned Judges sitting singly in that High Court, is a JUDGMENT which declares the law, and, therefore, an omission to notice such a JUDGMENT is an omission to notice a law, which has been declared, and this should stand on principle on the same footing as the failure to notice a decision of the Privy Council or of Supreme Court or a provision of a statute. The review, according to him, should, on this principle, have been granted.

In support of this contention he has placed reliance on a num ber of decisions. The first is in the case of Subbier v. Chinnappa Rowthen (A I R 1915 Mad. 1068). In this case it was held that "where a decision is on its face erroneous owing to the attention of the Court not leaving been called to a decision of the High Court which it was bound to follow . . . . . the Court has a discretion in such cases to grant a review."

In the case of Garabinl Kamarin v. Surji Narain Singh (A I R 1924 Pat. 250), however, a contrary view was taken on the ground that if a Full Bench decision of the High Court reported in the authorised law reports some four months before the trial was not placed before the Court on the ground that it was not in fact within the knowledge of the party or his pleader, then the omission to notice the JUDGMENT due to ignorance of this nature cannot be pleaded as a ground for review under Order XLVII, rule I of the Code of Civil Procedure.

In the case of Natesa Naicker v. Samabanda Chettiar (A I R 1941 Mad. 918), the view taken was that when a legal position is clearly established by a well‑known authority and yet by some unfortunate oversight a Judge has gone palpably wrong by the omission of those concerned to draw his attention to that authority, which was binding on him, then, in a proper case, it may be a ground coming within the category of an error apparent on the face of the record.

This decision followed an earlier decision of the same High Court in the case of Murari Rao v. Balvanth Dikshit (I L R 46 Mad. 955).

It would thus be seen that, so far as the Madras High Court was concerned, it accepted as correct the view that where "there is a legal position clearly established by a well‑known authority" and that authority is by some unfortunate oversight overlooked, then that may be a ground coming within the "category of an error apparent on the face of the record" for the purposes of a review.

In the case of Smt. Selha Dei v. Keshab Charan Mahanty (A I R 1946 Pat. 188), a further distinction was sought to he drawn by the Patna High Court between a reported JUDGMENT and an unreported JUDGMENT of the Privy Council by which a JUDGMENT relied upon by the High Court had been overruled. Unfortunately, there was also a difference of opinion in this case, because, the other learned Judge constituting the Bench thought that a review was rot at all permissible on the ground that an authority binding upon the Court had not been brought to its notice at, the time of the hearing of the matter.

So far as this country is concerned, a Division Bench of the High Court of West Pakistan, Karachi Seat, in the case of Muhammad Khan v. Pakistan (P L D 1958 Kar. 75) has held that the failure of the High Court to notice a decision of the Supreme Court which had declared the law on the matter was "a mistake apparent on the face of the record", even though the JUDGMENT of the Supreme Court was announced after the order of the High Court sought to be reviewed had been, made, because, the effect of the declaration by the Supreme Court was that the law was as declared from the very date it came into force.

As against this, the learned counsel for the respondent has relied on the observations of the Privy Council in the case of Chhajju Ram v. Neki (A I R 1922 P C 112) to the effect that the words "any other sufficient reason" occurring in rule 1 of Order XLVII, C. P. C. must be read ejusdem generis with the words preceding it.

In that case what had happened was that a Division Bench of the High Court, while hearing an appeal had allowed an additional ground to be raised and additional evidence adduced in support thereof. Then on the basis of this additional ground, the JUDGMENT of the Court below was reversed, holding that the plaintiffs' claim for pre‑emption was really one on behalf of third persons who had no such right. It was this JUDGMENT that was sought to be reviewed on the ground that the additional ground of appeal and the additional evidence could not have been allowed in law to be raised. This application for review came up before another Division Bench of the same High Court. The latter took the view that the former Division Bench was right in admitting the additional ground and evidence, but it then proceeded to deal with the JUDGMENT of the former Division Bench on merits as if sitting in appeal and came to the conclusion that the previous decision had been arrived at "upon an incorrect exposition of the law". On this conclusion, the review was accepted and the appeal was directed to go before the Bench that had heard it the first time. It went, unfortunately before another Division Bench and the third Division Bench considered certain other grounds of appeal, which had not been admitted by the first Division Bench and decided these points adversely to the appellants, then followed the decision of the second Division Bench at the second hearing and dismissed the appeal. It was in these circumstances that the Privy Council held that what the Bench hearing the review matter had done was not competent under Order XLVII, rule 1 of the Code of Civil Procedure, and in the course of its opinion observed that the words "any other sufficient reason" occurring in this rule must be interpreted as meaning a reason sufficient on grounds at least analogous to those specified immediately previously.

This decision does not in my view, indicate that the proposition that an omission to notice an authority like a Full Bench JUDGMENT delivered before the JUDGMENT sought to be reviewed will not amount to a failure to apply the appropriate law and, therefore, come within the category "of a mistake or error apparent on the face of the record", particularly where the decision left unnoticed is undoubtedly binding on the Court concerned e. g. a JUDGMENT of the Privy Council or of the Supreme Court or even of a Full Bench of the High Court.

Learned counsel for the respondent has conceded that failure to notice a JUDGMENT of the Privy Council or of the Supreme Court may amount to an error on the face of the record, because, such JUDGMENTs declare the law for all concerned and all sub ordinate Courts are bound to follow that law. I see no difference, therefore, in principle between JUDGMENTs of these Courts and the JUDGMENT of a Full Bench of a High Court. A JUDGMENT of a Full Bench also decides authoritatively for the High Court the point of law referred to it and, therefore, to that extent also declares the law with respect to that point. That declaration of law is binding on all other Benches of the High Court until set aside or reversed by another Full Bench of the same High Court or by a superior Court. Failure to notice such an authoritative decision would, therefore, in my opinion, clearly be an error apparent on the face of the record.

In a Court consisting of only four Judges like the Peshawar seat of the former West Pakistan High Court, it is difficult to Imagine how a decision of a Full Bench consisting of three of the learned Judges of that High Court remained unknown to the fourth learned Judge. I am not, therefore, prepared to accept that because the JUDGMENT of the Full Bench was not reported up to the time the JUDGMENT sought to be reviewed was delivered, the learned Judge concerned was not aware of it and, therefore, not bound to take any notice of it. The JUDGMENT of the Full Bench, so far as the Peshawar Seat of the High Court was concerned, was not only an authoritative decision but also a well‑known decision, which should have been followed.

We are, therefore, unable to agree with the learned Single Judge that the review petition was not maintainable. Nevertheless we must also point out that the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as In the case of all judicial discretions, be exercised upon sound judicial principles.

The learned counsel for the respondent next contended that, in any event, the Full Bench decision was not applicable in the facts of the present case. He has drawn our attention to section 5 of the North‑West Frontier Province Pre‑emption Act, 1950 which reads as follows :‑

"5. Property exempted from pre‑emption.‑No right of pre -emption shall exist in respect of the sale of, or the foreclosure of, a right to redeem‑

(a) a shop, serai, katra or club;

(b) a dharamsalz, mosque, church or other similar charitable institutions or buildings;

(c) agricultural land or village immovable property, con sisting of an area measuring not more than two kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for constructing a house for his own occupation "

The Full Bench has interpreted the words "where he neither owns a house nor a vacant site measuring more than one kanal as meaning that the ownership of a house of any dimension will be sufficient to disqualify a person from claiming this exemption. In other words, according to the Full Bench decision, the words "measuring more than one kanal" appearing in clause (c) of section 5 qualify only the words "vacant site" and do not qualify the word "house".

Learned counsel for the respondent argues that the Full Bench has not noticed that the words of the Statute "neither owns a house nor a vacant site measuring more than one kanal". The use of the conjunctions "neither" "nor" clearly indicate that these two types of properties namely, "a house" and "a vacant site", are being lumped together and, therefore, the qualifying words "measuring more than one kanal" should qualify both.

Apart from this, learned counsel further contends that since the right of pre‑emption has now been generally accepted to be a piratical right for depriving a person of the benefits of a transaction into which he has legitimately entered, the words of the statute should be construed strictly against the person asserting such a piratical right and in favour of the person sought to be deprived of the property. From this point of view too, it is urged, the words of the Statute should be given their natural meaning and not a strained meaning. Hence, since the Statute has used the words "a house" and not "a share in a house" or "a part of a house", then the person owning only a share in a house should not be disqualified from claiming the exemption under section 5(c) of the North‑West Frontier Province Pre‑emption Act. The Full Bench was not right in depriving a person owning only a share in a house of the benefit of the exemption. From both points of view, it is con tended, the Full Bench decision does not appear to have given clue weight to all relevant considerations. The interpretation placed upon section 5 (c) of the Act of 1950 appears to be too wide and perhaps unnecessarily too liberal in favour of the pre‑emptor.

In support of this contention, the learned counsel has also relied on an unreported decision of the Judicial Commissioner of the North‑West Frontier Province in Civil Revision No. 253 of 1951 (Rahmatullah v. Qabal Shah). decided on the 3rd of June 1952. There too it was held that a person owning only a share in a house is not disqualified from claiming the exemption.

It is unfortunate that no appeal was brought before this Court from the decision of the Full Bench in the case of Majid Khan v. Mujahid Khan; but it seems to us that a great deal can be said in support of the view taken by the learned Single Judge in his JUDGMENT in the revisional matter which was sought to be reviewed. We find ourselves unable to approve of the Full Bench decision which appears to be opposed to the ordinary grammatical construction of the language of clause (c) of section 5 of the North‑West Frontier Province Pre‑emption Act, 1950. In the circumstances, we do not consider it necessary go interfere with the discretion exercised by the learned Single Judge by refusing to review his JUDGMENT.

This appeal is accordingly dismissed; but, having regard to the circumstance that we are dismissing this appeal on a different ground, we make no order as to costs.

K. B. A. Appeal dismissed.

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