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Civil Review Petition No. 87-R in 'C. P. S. L. A. No. 99-R of 1980; decided on 7th February, 1981.

--Art. 188 read with Supreme Court Rules, 1956, O. XXVI-Review- Cannot be permitted on basis of material available but not produced and if produced only for first time - Fact of Court having not been impressed by petitioner's claim regarding existence of two garrages in disputed small property being only one of several circumstances, leading Court to conclude case being not fit for grant of special leave to appeal, nothing, held, turns on additional evidence allegedly showing existence of two garrages in property concerned--[Review].

Kh. Muhammad Farooq, Advocate and Khan Imtiaz Muhammad Khan, Advocate- on-Record for Petitioners.

Nemo for Resondents.

Date of hearing : 7th February, 1981.

This petition has been filed for a review of this Court's order dated 22-11-1980 by which we dismissed the petition for leave filed by the petitioner against a judgment of a learned Single Judge of the Lahore High Court by which he had allowed the writ petition of the first respondent (hereinafter called the respondent). According to Khawaja Farooq, the dispute relates to a garage in a small property in Rawalpindi measuring only 125 square yards, and the long history of the litigation between the parties has been set out in this Court's order of 22-11-1980, therefore, we will not refer to the details of that litigation again although it was relevant to the order passed by us.

Now, as the High Court had divided the property by transferring the garage to the respondent, Khawaja Farooq relied on the judgment of the Letters Patent Bench by which the learned Single Judge was bound and as the Letters Patent Bench had remanded the case to the Settlement authorities learned counsel submitted that the learned Single Judge had erred in allowing the writ, because by doing so, he had interfered with the unanimous exercise of the Settlement authorities in favour of the petitioner. Now, even though the Settlement authorities had after remand decided the dispute between the parties in the petitioner's favour this does not mean that the High Court could not in its constitutional jurisdiction set aside an order which was without lawful authority. That is obvious, therefore, learned counsel then stated that the learned Single Judge had interfered with the discretion of the Settlement authorities on a question which was within their exclusive jurisdiction without applying his mind to the facts and circumstances of the case, and, therefore, there was an error apparent in our order, because we had pointed out that the learned Single Judge was bound by the Letters Patent Bench yet we had not granted leave.

In dismissing the petition, we had observed that it was not a fit case for the grant of special leave, and in this connection, we may point out that in the second sentence of his judgment, the learned Single Judge of the High Court had pointed out that according to the Rehabilitation record, the property had been divided in two units. This was a circumstance in support of the view of the learned Judge that the orders of the Settlement authorities were without lawful authority. But, whilst the position might have been different if the matter had rested here, there was prolonged litigation between the parties and there are several orders of the Settlement authorities holding that the property was divisible and as we observed in our order of 22-1-1980, the Additional Settlement Commissioner had even directed on auction of one of the garages. Therefore, there was ample material on the basis of which, the learned Judge could take the view which he did. Khawaja Farooq, therefore, submitted that these earlier orders of the Settlement authorities has been set aside by the High Court. That is true, but the earlier orders are sufficient to show that the Settlement authorities had themselves repeatedly taken the view that the property was divisible. It was in these circumstances that we held that it was not a fit case for the grant of special leave, and no argument has been advanced to persuade us to change our view.

However, in dismissing the petition, we had observed that we could not accept the petitioner's claim that there were two garages in a property measuring only 125 quare yards. Therefore, Khawaia Farooq has now produced documents which according to him show that the garages were garages for tongas. In the first place, a review cannot be permitted on the basis of material which was available, but was not produced, and admitted this material is being produced for the first time before us. Secondly, the fact that we were not impressed by the petitioner's claim that there were two garages on this very small property was only one of the several circum stances which led us to the conclusion that it was not a fit case for the grant of special leave. Therefore, nothing turns on the additional documents now sought to be produced.

The review application is only an attempt to reargue the petition and is dismissed.

Petition dismissed.

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