2010 M L D 1316
[Quetta]
Before Mrs. Syeda Tahira Safdar, J
MUHAMMAD YAQOOB ---Petitioner
Versus
ABDUL AZIZ ---Respondent
Civil Revision No. 134 of 2006, decided on 10th June, 2010.
(a) Civil Procedure Code (V of 1908) ---
----O. XLVII, R.1 ---Review ---Scope ---Scope of review was narrow ---Nothing new could be
agitated while applying for review of the order/decree ---No major alteration could be made in
the order.
(b) Civil Procedure Code (V of 1908) ---
----O.XL VII, R.1 ---Specific Relief Act (I of 1877), S. 1 2---Suit for specific performance of
agreement of sale---Review application ---Defendant was present in person at the time of
passing decree in favour of plaintiff which was a consent decree ---Defendant, in
circumstances, could not take advantage of alleged over-writing or cutting present in contents
of sale -deed and based his claim for effecting change in boundary of property in question
given in the agreement, on basis of which the boundaries were mentioned in the decree ---No
public immunity could be trans ferred in favour of any private party for his personal use ---
Plaintiff in the present case had not claimed any right on any public lane, rather he had based
his claim on the sale -deed which was specifically to the extent of a house situated within the
boun daries mentioned therein ---Trial Court could not treat the application for review as a suit
and thereby collect evidence in respect of the same and change the contents of decree ---Trial
Court had made serious error while conducting the case in such a manne r---Appellate Court
also failed to observe the legal position and the relevant provision of law ---Order passed by
Qazi Court and Majlis -e-Shoora were set aside and application for review filed by the
defendant stood rejected.
Mujeeb Ahmed Hashmi for Pe titioner.
Manzar Siddique for Respondent.
Date of hearing: 16th April, 2010.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J .---Through instant petition the petitioner sought for
setting aside of impugned orders dated 22 -12-2005 made by Qazi Kalat and dat ed 30 -3-2006
made by Majlis -e-Shoora being contrary to law and facts, further suit cannot be decided by
the court on basis of inspection conducted by the Presiding Officer. Further, as the decree
was a consent decree, therefore, the order was neither appea lable, nor revisable or
reviewable; as such the appellate and the trial courts have made an error.
As per record the suit filed by the petitioner was decreed with consent of the parties through
order dated 28 -9-2004 by the Qazi Kalat. Thereafter, on 28 -10-2004 the respondent filed an
application for review of the order dated 28 -9-2004, contending therein that as at south of
property in question there is a public way, the only passage for general public, thus, prayed
that in decree amendment be made to thi s effect while writing down the same. This
application was allowed through order made on 11 -11-2004 by Qazi Kalat. Whereupon the
petitioner filed an application for setting aside of ex parte order which was also rejected
through order dated 1 -12-2004. Feel ing aggrieved of the same he approached this court. His
petition was decided through order made on 14 -10-2005, whereby both the orders dated 11 -
11-2004 and 1 -12-2004 were set aside, while the case was remanded to the trial court with
direction to decide th e application strictly in accordance with law and pass a speaking
judgment. On remand of the case the trial court decided the application for review through
order made on 22 -12-2005, thereby allowing the same. The appeal preferred by the petitioner
was dec ided through order dated 30 -3-2006 thereby upholding the order of the trial court.
The petitioner still feeling aggrieved preferred present petition seeking setting aside of both
orders and decree of his suit.
The petitioner is aggrieved of order of tria l court whereby the application for review of
judgment was allowed, while amendment was made in decree dated 28 -9-2004. It was held
by the trial court that as the petition writer has after cutting word ( ﺮﺍﻩﻋﺎﻢ ) i.e. public
passage, written after word (ﻛﻧﻮﺍﮟﺁﺒﻧﻮﺸﻰ ) without signing it, which was illegal,
therefore, at south public passage be written. The appellate court upheld the findings. This
order has been made by the trial Court while accepting the application for review of
judgment and decree. Order XLV II, Rule 1(1), C.P.C. describes the scope of review, which
states as under: -
"Application for review of judgment .---(1) Any person considering himself aggrieved:
(a) by a decree or order from which an appeal is allowed, but from which no appeal
has be en preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the
exercise of due diligence, was not within his knowledge or could not be produced by
him at the time when the decree was passed or order made, or on account of some
mistake or error apparent on the face of the record, or for any other sufficient reason,
desire to obtain a review of t he decree passed or order made against him, may apply
for a review of judgment to the court which passed the decree or made the order."
In case in hand the petitioner filed a suit against the respondent seeking specific performance
of sale agreement date d 22-12-1992 describing the boundaries of the property in question as
East Public Lane, West Rod Khana, North houses of Haji Muhammad Ramzan and Allah
Bakhsh, South boundary of well. As the suit was not contested by the respondent/defendant
with averments that he is ready to effect mutation of property as per sale -deed in favour of
petitioner/plaintiff further contended that on southern side the petitioner/plaintiff is
interfering in public lane. The trial court decreed the suit through order dated 28 -9-2004
thereby ordered that mutation entry for property within boundary specified as East Public
Lane, West Rod Khana, North Houses of Muhammad Ramzan and Allah Bakhsh and South
boundary of well be effected in favour of petitioner/plaintiff. It is further appar ent from order
that at said occasion both the parties were present in person. The review application was filed
on 28 -10-2004, wherein it was his contention that in sale agreement while describing the
boundaries it was written that at South well and public lane, which has been cut down by the
petitioner/ plaintiff, as at South in fact is a public lane which is the sole passage for public
that cannot be included in the sale agreement. The trial court on remand of the case before
deciding the application visit ed the disputed property, as apparent from order dated 22 -12-
2005. It is observed by the trial court therein that disputed property consist of a house and a
lane, while from eastern side the lane is 20 feet wide and from western side its width is 30 -
1/2 fe et, further observed that lane at eastern side is used by general public, while there are no
signs of its use from western side. It is further held by the trial court that as the petition writer
has committed illegality by making cutting in contents of agr eement without counter -signing
it, therefore, the application for review is accepted.
The perusal of said sale agreement dated 22 -12-1992 reveals that while writing down the
boundaries of property in question it is, written that at East Public Lane, West Rod Khana,
North houses of Muhammad Ramzan and Allah Bakhsh and South Water well and lands of
Abdul Aziz respondent. It is apparent from this agreement that there is no cutting while
writing down south (ﻛﻧﻮﺍﮟﺁﺒﻧﻮﺸﻰ ,)rather on the word (ﺍﺮﺍﻀﻳﺎﺖﻤﻘﺮ) words
Rod Khana and public lane () were written, on which the pen was drawn across. The copy of
(ﺮﻮﺪﺨﺎﻧﻪﻮﺮﺍﻩﻋﺎﻢ )sale -deed filed by the petitioner also describe same boundaries wherein
at South well is written. There is no cutting or overwriting on the same. The scope of review
is narrow. Nothing new can be agitated while applying for review of the order/decree. No
major alteration can be made in the order. In present case the respondent at the time of
passing of order, dated 22 -12-2005, whereby the suit was decreed in favour of the petitioner,
that too with consent of the parties was present in person also. The respondent thereafter,
cannot take advantage of alleged overwriting or cutting present in contents the sale -deed and
based his claim for effecting change in boundary given in the agreement, on basis of which
the boundaries were mentioned in the decree. Even as per observations made by the trial
court the land existed on eastern side which is not a disputed fact, nothing is observed
about the lane alleged to be in existence at Southern side of the property in question. It is
settled principle of law that no public immunity can be transferred in favour of any private
party for his personal use. In present case the petitioner has not claimed any right on any
public lane rather he based his claim on the sale -deed which is specifically to the extent of a
house situated within the boundaries mentioned therein. Therefore, in view of the mentioned
facts there was no occasion for the trial court to treat the applicati on for review as a suit and
thereby collect evidence in respect of the same and change the contents of decree. The trial
Court has made serious error while conducting the case in such a manner. The appellate court
also failed to observe the legal position and also the relevant provision of law.
In view of above discussion the petition is hereby accepted. The order dated 22 -12-2005 of
Qazi Kalat and order dated 30 -3-2006 of Majlis -e-Shoora Kalat are hereby set aside. The
application for review stands rejec ted. The order and decree of trial Court dated 28 -9-2004 is
hereby upheld.
No orders as to costs.
H.B.T./77/Q Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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