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Civil Review Petition No.2 of 1987, decided on 2nd March, 1988.

(In the matter of review of the Judgment of Supreme Court dated 25 2 1987, in Civil Appeal No.47 of 1985).

S.114 Review Scope of review petition is very limited and in no case a party can be permitted to convert a review petition into appeal Reappraisal of evidence in review is not permissible When plaintiff fails to prove his case, he cannot be permitted to take any benefit from the weakness of the case of defendant To take the benefit from the weakness of the case of defendant is different from considering the evidence of the defendant alongwith the evidence adduced by the plaintiff. [ Appeal (civil)].

The scope of review petition is very limited and in no case a party can be permitted to convert a review petition into appeal.

In a pre emption case if it is established on the record that shops in dispute were the same which the non petitioner had acquired as a result of compromise decree passed in pre emption suit filed by him, the question as to which was the correct survey number in which the shops were situated was immaterial. While deciding the appeal Court after taking into consideration the respective contentions of the parties raised in their pleadings and the evidence adduced by them came to the conclusion that the shops in dispute were the same which came into ownership, of the non petitioner as a result of compromise decree passed, in his favour in the pre emption suit

Thus, the contention that the said findings were not supported by the evidence on the record would obviously tantamount to pursuade Court to reappraise the evidence in the review which is not permissible under law. The re appraisal of evidence if permitted in review would mean to hear appeal against Court"s own judgment.

If the plaintiff fails to prove his case, he cannot be permitted to take any benefit from the weaknesses of the case of defendant. But to take the benefit from the weakness of the case of the defendant is different from considering the evidence of the defendant alongwith the evidence adduced by the plaintiff. In the instant case the findings were not based primarily on the evidence of the petitioner or on the "weaknesses of the case of defendant", rather the statements of the witnesses for the petitioner were considered alongwith the statements of plaintiff in light of the respective contentions of the parties and a conclusion was drawn. It had been opined in the judgment under review that as the shops are the same which came into the ownership of the non petitioner as a result of compromise decree, it was not material in which of the survey numbers the same stand. Therefore, the entries in the revenue record which were also being challenged as being collusive would not make any difference. If the identity of shops is established then the question of "survey number" is immaterial. The finding based on due appraisal of evidence that the shops in dispute were the same which came into the ownership of the plaintiff/non petitioner as a result of compromise decree passed in his favour the question could not be permitted to be re opened in the review petition.

Ahmed Maiji and others v. Eakub Ali Munshi and others PLD 1961 Dacca 259; Messrs P.K. Basak & Co. Ltd. v. Messrs Gossen & Co. Ltd. P L D 1957 Dacca 233; Biram Das v. Mangal Singh and others A I R 1929(2) Lah. 868; M.D. Anwarullah Mazumdar v. Tamina Bibi and 5 others 1971 S C M R 94; Ghulam Akram and 5 others v. Syed Shabbir Hussain Shah and 10 others P L D 1986 S C (AJ&K) 56; Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 C L C 621: Muhammad Nazir v. Karamat Begum and another PLD 1985 SC (AJ&K) 140 and Muhammad Ayub Khan and 4 others v. Chairman, Inspection Team anal another P L D 1982 SC (AJ&K) 27 ref.

Maulvi Siraj ul Haq assisted by Muhammad Yunus Surakhji for Petitioner.

Raja Muhammad Siddique for Respondent.

This review petition has been directed against the judgment of this Court dated 25 2 1987, whereby accepting the appeal filed by the non petitioner, the judgment and the decree of the High Court were set aside whereas that of the trial Court were restored.

The brief facts giving rise to the petition are that non petitioner Akka Khan brought a declaratory suit challenging the two sale deeds executed by one Hadayat Ali in favour of Syed Ghulam Shabbir petitioner; herein, and also sought decree for possession of eight shops which were constructed on the land measuring 17 marlas. According to the case of the plaintiff, the aforesaid shops were originally in the ownership of his brother Rangbaz who transferred the same to Hadayat Ali through a registered sale deed dated 18 3 1973. Akka Khan non petitioner/plaintiff, filed a pre emption suit against the said sale which resulted in a compromise decree in his favour on 13 1 1924. According to the terms of the said compromise, Hadayat Ali vendee was to retain the possession of five shops on payment of rent, whereas remaining three shops were to remain in his possession without payment of any rent. According to the case of plaintiff/non petitioner, Ghulam Shabbir Shah and Hadayat Ali, with the connivance of the Revenue Department, manoeuvred to get the entry of the said shops as having been constructed on land comprised in survey No.502 min in the settlement of 75 76 A.D. instead of survey No.508. According to the plaintiff, the change in survey number of the land on which the shops were constructed was effected with ulterior motive to deprive him of his title to the shops. It was further his case that after the change in survey number of the land on which the shops stood constructed, the same were transferred by Hadayat Ali to the petitioner. The suit was contested by the defendants contending that shops in dispute were situated in survey No.502. The trial Court decreed the suit of the plaintiff/non petitioner holding that in fact the shops in question were the same which Akka Khan, non petitioner, had obtained as a result of compromise decree passed in his favour in the pre emption suit. However, the trial Court observed that the plaintiff/non petitioner could not prove that shops in question were fictitiously entered in survey No.502 as a result of connivance between defendants and the Revenue Authorities. On appeal by the petitioner to the District Judge, the judgment and decree of the trial Court were set aside; and the appeal filed by Akka Khan non petitioner before the High Court was also dismissed. However, the appeal filed by Akka Khan, non petitioner, in this Court was accepted and thus, the judgment and decree passed by the trial Court in his favour stood restored.

We have heard the preliminary arguments advanced by the learned counsel for the parties on the point as to whether the review merits to be admitted for regular hearing. The learned counsel for the petitioner, Maulvi Siraj ul Haq, has vehemently argued that this Court has made a wrong approach to the case while passing the judgment under review. He has argued that the Court has drawn a wrong inference from the contents of the written statement; he has contended that the perusal of the written statement, filed by the petitioner, clearly shows that he denied the averments made in the plaint and thus, the inference drawn by this Court that the defendant petitioner did not deny that shops in dispute were the same for which the decree was passed in favour of the, non petitioner in pre emption suit, is incorrect. The learned counsel has further argued that even otherwise the approach by this Court to the proposition involved was faulty because it is a settled principle of law that if the plaintiff fails to prove his case, he cannot be permitted to succeed on the weaknesses of the case of the defendant. The learned counsel has also maintained that as the plaintiff failed to discharge the onus of proof, he cannot get any benefit from the weaknesses of the defendant"s case. Whether the same is due to defective pleading or it can be spelled out of the statements of witnesses of the defendant petitioner. The learned counsel has cited following authorities in support of the aforesaid proposition that plaintiff cannot take any benefit from the weaknesses of the case of defendant:

Ahmed Miaji and others v. Eakub Ali Munshi and others PLD 1961 Dacca 259; Messrs P.K. Basak & Co. Ltd, v. Messrs Gossen & Co. Ltd. P L D 1957 Dacca 233; Biram Das v. Mangal Singh and others A I R 1929(2) Lah. 868; MD Anwarullah Mazumdar v. Tamina Bibi and 5.others 1971 S C M R 94.

The learned counsel has further contended that copies of Misl e Haqeit Exhs. P A and PB show that shops which belonged to plaintiff/ non petitioner were entered in survey No.805, whereas the shops sold by Hadayat Ali to the petitioner, Ghulam Shabbir Shah, were constructed on the land comprising survey No.502 which was a "Khalsa" land. The learned counsel has maintained that as the said documentary evidence has not been properly appreciated by this Court, the judgment necessitates the review. The learned counsel has further submitted that plaintiff/ non petitioner should have applied to the trial Court to appoint a commission for conducting a local inquiry with regard to the question as to whether the disputed shops were constructed over the land comprising survey number 508 or survey No.502.

In reply the learned counsel for the non petitioner, Raja Muhammad Siddique, has argued that the scope of the review petition is limited and the points raised by the learned counsel for the petitioner do not furnish valid grounds for admitting the review petition. The learned counsel has contended that it is a settled principle of law that the scope of the review petition is not the same as that of an appeal and as such the judgment, even if the same is shown to be erroneous in point of law or fact, cannot be disturbed in exercise of review jurisdiction until and unless the same is shown to fall within the purview of Order XLVII rule 1, i.e., the same is shown to suffer from a defect apparent on the face of record or for any other sufficient reason. The learned counsel has cited the following authorities in support of his proposition:

In Ghulam Akram and 5 others v. Syed Shabbir Hussain Shah and 10 others P L D 1986 S C (AJ&K) 56, it was held that the review of the judgment is only permissible if a mistake or error is apparent on the face of the record or there is any other sufficient reason. As some of the points were left unresolved by the High Court, the case was remanded back to the High Court to give findings on some of the issues.

In Mst. Sardar Begum and 2 others v. Ahmad Khan and 4 others 1983 C L C 621, it was held that review was incompetent because the points raised tantamount to rehear whole the case afresh. It was further observed that incorrectness of the view taken would not furnish a valid ground for reviewing the judgment.

In Muhammad Nazir v. Karamat Begum and another P L D 1985 S C (AJ&K) 140 it was held that the reappraisal of the evidence cannot be undertaken by the Court in exercise of review jurisdiction. It was further opined that the review is not competent on the ground that the conclusion drawn while delivering the judgment under review was not sustainable. "

In Muhammad Ayub Khan and 4 others v. Chairman, Inspection Team and another P L D 1982 SC AJ&K 27, it was observed that in review a party cannot be allowed to reopen the case for rehearing of the points already decided. It was further observed that if the points have been already adjudicated upon, the review is not "competent even if the view taken in the judgment under review is shown to be a mistaken one.

We have given our due consideration to the arguments advanced at the bar. It is evident from the case law cited by the learned counsel for the parties that the scope of review petition is very limited and in no case a party can be permitted to convert a review petition into appeal. The learned counsel for the petitioner, Maulvi Siraj ul Haq, did not controvert the finding that if it is established on the record that shops in dispute were the same which the non petitioner had acquired as a result of compromise decree passed in pre emption suit, filed by him, the question as to which was the correct survey number in which the shops are situated is immaterial. It may be pointed out that while deciding the appeal this Court after taking into consideration the respective contentions of the parties raised in their pleadings and the evidence adduced by them came to the conclusion that the shops in dispute were the same which came into ownership of the non petitioner as a result of compromise decree passed in his favour in the pre emption suit. Thus, the contention that the said findings are not supported by the evidence on the record would obviously tantamount to pursuade us to reappraise the evidence in the review which is not permissible under law. The re appraisal of evidence if permitted in review would mean to hear appeal against our own judgment.

So far as the proposition that if the plaintiff fails to prove his case, he cannot be permitted to take any benefit from the weaknesses of the case of defendant is concerned, we have no quarrel with the same and respectfully approve the view taken in the authorities cited. But it may be observed here that to take the benefit from the weakness of the case of the defendant is different from considering the evidence of the defendant alongwith the evidence adduced by the plaintiff. In the instant case the findings were not based primarily on the evidence of the petitioner or as the learned counsel for the petitioner puts it, on the "weaknesses of the case of defendant rather the statements of the witnesses for the petitioner were considered alongwith the statements of plaintiff in the light of the respective contentions of the parties and a conclusion was drawn. It has been opined in the judgment under review that as the shops are the same which came into the ownership of the non petitioner as a result of compromise decree, it was not material in which of the survey numbers the same stand. Therefore, the entries in the Revenue Record which are also being challenged as being collusive would not make any difference. Even the learned counsel for the petitioner, as has already been pointed out, has frankly conceded that if the identity of shops is established then the question of "survey number" is immaterial. The finding based on due appraisal of evidence that the shops in dispute were the same which came into the ownership of the plaintiff/non petitioner as a result of compromise decree passed in his favour the question cannot be permitted to be re opened in the review petition.

In the light of what has been stated above finding no force in the review petition, it is dismissed in limine. No order as to the costs.

M.B.A./216/S.C.A. Petition dismissed.

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