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Second Appeal No. 311 of 1971, decided on 30th May, 1985.

---S.114 and O. XLVII--Review--First Appellate Court not substantially criticising judgment of trial Court which adopting contrary view and not making comparative assessment of evidence--High Court, in second appeal making full appraisal of evidence adduced by parties and recording its findings--Held, there was no deviation from law and no good ground existed for reviewing judgment.

---S.114 and O. XLVII--Review of judgment of High Court passed in second appeal--High Court while disposing second appeal complying with principles of law and making a thorough appraisement of evidence and doing complete justice between parties--Judgment sought to be reviewed not suffering from any error of nature as to warrant review--Application for review dismissed.

P L D 1947 P C 293; P L D 1948 P C 219; A I R 1939 P C (K) 375; P L D 1964 Lah. 251; 1971 S C M R 395; P L D 1963 Kar. 161 and 465; P L D 1964 Lah. 351; P L D 1967 Kar. 233; r L D 1969 Pesh. 118; P L D 1975 Lah. 1276 and P L D 1981 S C 56 ref

Abdul Latif Channa for Appellants.

Zaheeruddin Khan for Respondents.

Date of hearing: 26th November, 1984.

This appeal was disposed of by judgment, dated 14th December, 1983. The appellant has filed Review Application under Order XLVII read with section 151, C.P.C. through newly-appointed Advocate Mr. Abdul Latif Channa. The grounds raised in the application are two-fold; firstly that there is mistake or error apparent , on the face of the record; and secondly that certain documents mentioned in the application found by the appellant after three stages of the proceedings before trial Court, the first appellate Court and the second appeal in this Court had passed may be taken into consideration.

The first ground regarding mistake or error apparent on the face of the record has been sub-divided in 8 clauses, which may be summarised as under:-

(i) That this Court has not appreciated that the learned Appellate Court had acted illegally in not applying its mind to the assertion of the appellant that they had inherited the suit property through their great grant ancestor Muhammad Bachal.

(ii) That this Court has not considered legal effect of the findings of the trial Court based on oral testimony and documentary evidence produced before it.

(iii) That this Court has erroneously been influenced by an order, dated 3-7-1962 passed by the Assistant Commissioner, Hala on an hopelessly time-barred appeal.

(iii-A) That the respondents claim set up in their written statement was rejected by the trial Court and they did not prefer appeal and the first appellate Court could not reverse the findings of the trial Court.

(iv) That the decisions of this Court and that of the lower Appellate Court are based on erroneous appraisal of material facts and law.

(v) That this Court has not properly appreciated the oral evidence adduced by the appellant.

(vi) That this Court has not properly appreciated the documentary evidence produced by the appellant.

(vii) That this Court has erroneously accepted the plea of the respondent as regards their supposed ownership over the land.

(viii) That this Court has not appreciated that the respondents have set up two inconsistent pleas of their alleged ownership over the property.

The learned counsel for the appellant has reiterated the grounds raised in the application and amplified them by criticising the judgment of this Court with immunity under the garb of review application. The first ground raised by him was that judgment of the trial Court was not discussed by the first appellate Court and this Court has not discussed the judgments of the trial Court and the first appellate Court and the judgments of both the Appellate Courts do not meet the requirements of law and the judgment of this Court needs to be reviewed. He has placed reliance on the case Madan Gopal and 4 others v. Maran Bepari and 3 others P L D 1969 S C 617 and Allahuddin v. Habib P L D 1982 S C 465. The principle laid down in the first case is that where the first appellate Court reverses the findings of the trial Court without paying any heed to the reasoning given by the first Court and the appellate Court also discounts a very fundamental piece of evidence, the High Court may disagree with the lower Appellate Court and reverse its findings in second appeal and restore that of first Court. In the second case, it was observed that the second appellate Court had not examined reasons advanced in the conflicting judgments of the trial Court with reference to evidence on record nor was comparative statement of such reasons undertaken and it was held that Court of second appeal did not proceed in accordance with law in refusing to go into findings on the facts assailed by the other party. In the latter case, reference was made to the former case. Of course, the first appellate Court in the instant case did not substantially criticize the judgment of the trial Court while adopting contrary view. Since there was no comparative assessment of evidence by the first Appellate Court, this Court made full appraisement of the evidence adduced by the parties and recorded its findings. In my opinion, there was no deviation from any principle of law in adopting that course. The entire evidence has been considered in reaching the conclusion recorded in the judgment and nothing seems to have been left out in reaching the conclusions and there does not seem any good ground for reviewing the judgment. The learned counsel has also made reference to some other reported cases viz. P L D 1947 P C 293; P L D 1948 P C 219; A I. R 1939 P C (K) 375; P L D 1964 Lah. 251 and 1971 S C M R 395. There does not seem any deviation in the judgment of this Court from the principle of l law enunciated in those cases.

The next ground urged by the learned counsel is that oral evidence of witness Ghulam Ahmad (Exh. 25) on the Pedigri of the appellant has not been considered in this Court. He has made reference to several authorities viz. P L D 1963 Kar. 161 and 465 P L D 1964 Lah. 351; P L D 1967 Kar. 233; P L D 1969 Pesh. 118; P L D 1976 Lah. 1276 and P L D 1981 S C 56 in support of his arguments. It would appear from the judgment that case of the parties mainly rested on documentary evidence which has been fully dealt with and the oral evidence of witness Ghulam Gul Muhammad has been made mention of to the effect that. it is reiteration of the pleadings of the appellant. In my view there has been extensive appraisement of the evidence in the judgment.

The learned counsel has next urged that the Judgment of this Court is not in accordance with law and it needs to be, reviewed in the light of the cases reported in P L D 1962 S C 335; P L D 1973 S C 110; P LD 1976 S C 309 and P L D 1978 S C 96. In all the cases relied upon by the learned counsel, the principles for review of a judgment/ order stand enunciated. In the case reported in Lt.-Col. Nawabzada Muhammad Ameer Khan v. The Controller of Estate Duty and another P L D 1962 S C 335 and Abdul Ghafoor Khan and others v. The Controller of Estate Duty and another, it was held that the power of review may be exercised for doing "complete justice" between parties. In the case reported in Faqeer Muhammad Khan v. Mir Akbar Shah P L D 1973 S C 110 it was held that judgment could be reviewed if there is error apparent on face of record. It was, however, observed that the power of review is discretionary and Court is not bound to grant review even where adequate grounds exist. Of course, it was cautioned that discretion

in exercise of power of review must be exercised upon sound judicial principles. In the third case cited as Syed Muhammad Zaki v. Masood Ali Khan and 2 others P L D 1976 S C 308. Review application was not allowed in the circumstances of the case examined therein. In the fourth case reported in Mst. Khadija Bai and others v. Muslim Commercial Bank P L D 1978 S C 96, it was held that a judgment contrary to law declared earlier could be reviewed. The principle enunciated in the aforesaid cases stands complied with in the judgment sought to be reviewed. Thorough appraisement of evidence has been made for doing complete justice between the parties as held in the case reported in PLD 1962 S C 335. The judgment sought to be reviewed does not seem suffering from any error of the nature as to warrant review of the decision recorded therein.

The learned counsel did not urge the other grounds for reconsideration of the judgment on taking into consideration the documents filed alongwith the review application.

For the reasons recorded above, there is no merit in the review application and it is dismissed with no order as to costs.

M . Y . H .

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