PLJ 2021 Peshawar 47
Civil Procedure Code, 1908 (V of 1908)--
----S. 115, O.XXXIII, R. 1--Suits for recovery of outstanding rent--Decreed--Appeals--Direction for affixation of Court fee within three days--Non-compliance of order--Filing of review applications--Dismissed--Non-filing of application for treating appeals as paupers--Grounds for review--Exercising of power of review--Challenge to--Grounds of review that in earlier round of litigation Court fee was not paid, that value for purpose of Court fee and jurisdiction before trial Court was mentioned is exempted one and that petitioner is an old or infirm person is no ground for review of Judgment/Order--Order, review of which is sought, suffers from any error apparent on face of order and permitting order to stand will lead to failure of justice--In absence of any such error, finality attached to judgment/order cannot be disturbed--Power of review can be exercised for correction of a mistake and not to substitute a view--It has also been settled that if Court has taken a conscious and deliberate decision on a point of law or fact and disposed of matter pending before it, review of such order cannot be obtained on grounds that Court took an erroneous view or that another view on reconsideration is possible, more-so review also cannot be allowed on ground of discovery of some new material, if such material was available at time of hearing but not produced--Application by which petitioner has sought review of judgment though, contain ground of old age and sickness but mere mentioning same without complying with formalities provided in Order 3, Rule 3, plea/request of petitioner could not be entertained for treating same as pauper--Petitioner intended to seek presentation of his appeal as pauper and reversal of finding of Trial Court on ground pertaining to earlier round of litigation were properly discussed, appreciated and decided by Trial Court--Presentation of these petitions under above provisions of law relating to petition as pauper, were not competently filed--Petitioner in all cases has not been able to point any illegality, material irregularity or jurisdictional defect--Revision petitions were dismissed. [Pp. 50, 51 & 53] A, B, C, D, E, F, G & H
2008 SCMR 554, PLD 1997 SC 865 and 1998 SCMR 457 ref.
Mr. Abdur Rahim Jadoon, Advocate for Petitioner.
Mr. Muhammad Javed Yousafzai, Advocate for Respondents.
Date of hearing: 21.9.2020.
PLJ 2021 Peshawar 47
Present: Muhammad Naeem Anwar, J.
versus
HABIB AHMAD and others--Respondents
C.R. No. 41-P of 2017, decided on 21.9.2020.
Judgment
This single judgement in the instant Civil Revision (C.R. No. 41-P/2017), shall also decide C.R. No. 38-P/2017, C.R. No. 39-P/2017, C.R. No. 40-P/2017 and C.R. No. 42-P/2017, as common question of law and fact is involved in these petitions. The petitioner has challenged the judgements and order of the learned Additional District Judge-IV,
2. Significant facts of these petitions are that predecessor in interest of respondent No. 1, namely Haji Habib Ullah has filed suits for recovery of Rs. 20,600/, Rs. 86,407/-, Rs. 259,292/-, Rs. 137232/- and for Rs. Rs. 100,813/-as outstanding rent pertaining to House No. 3023, No. 3001, No. 3084-85, No. 3014, and No. 2987, against the defendants/respondents. Suits were resisted by present petitioners, who have filed their separate written statement in each case. After recording of evidence, learned trial Court through separate judgements in Suits No. 2/1, 4/1, 3/1, 1/1 and 5/1, dated 13.01.2016, decreed the suits. Being not satisfied from the judgement and decree of the learned trial Court, the petitioner assailed the same before the Appellate Court through separate appeals, wherein the learned Appellate Court has directed the petitioners/appellants, in all the appeals (five) in numbers, to affix the Court within three days and the appeal were posted for 15.06.2016. The petitioner has not complied with the direction of the learned Appellate Court within the period provided to him, however, on 15.06.2016, the appellants have filed review applications in all the appeals. Learned Appellate Court through its judgement and decree in all the appeals dated 30.09.2016, dismissed the review applications along with the appeal, hence, these petitions.
3. The petitioners sought the review of the judgment and order of learned Appellate Court on the ground that the respondent/decree holder has not affixed the Court fee before the trial Court, the petitioner is an old sick and infirm person suffering from the Cardiac disease is unable to affix the Court fee. Likewise, in earlier round of litigation he has not affixed the Court fee and his petitions were treated as paupers petitions under Order XXXIII Rule 11 of C.P.C, that the respondent at the time of filling suits, has categorically mentioned that the suits are exempted from affixation of the Court fee, as such, no direction could be issued by the learned Appellate Court directing the petitioner to affixed the Court fee, therefor, the Order of the learned Appellate Court in all these petitions was against the law, un justified, unwarranted and perverse, and without lawful justification and lastly the petitioner had submitted applications for treating the appeals under Order XLIV, Rule 1, of CPC as pauper appeal, but was not considered.
4. As against that, the learned counsel representing the respondent/decree holder has contended that the grounds taken in the review petition were not falling within the purview of Section 114, Order XLVII of the Code of Civil Procedure, the petitioner has not filed any application for treating the appeals as paupers, in accordance with order XXXIII, C.P.C. without which no exemption could be sought and the contention that in earlier round of litigation, the Court fee was not affixed, is no ground for seeking review.
5. Arguments heard and record perused.
6. No doubt, the Courts are vested the powers to review the Orders, Judgements, and decrees with certain restrictions, limitations conditions, being provided in Section 114, and Order XLVII, Rule 1, of the Code of Civil Procedure. The Court while reviewing judgement, Order cannot sit as a Court of appeal as the grounds for appeal and review are totally different from each other. Whenever there is a clerical, arithmetical, accidental, typographical and pencil slip mistakes which is floating on the surface of record or, which apparently is against the law coverable under Order XLVII could review however, in the instant matter the grounds of review that in earlier round of litigation Court fee was not paid, that the value for the purpose of Court fee and jurisdiction before the trial Court was mentioned is exempted one and that the petitioner is an old or infirm person is no ground for review of the Judgment/Order. The provision of Section 114, and Order XLVII, Rule 1, for convenience or reproduced as under:
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been 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, desires to obtain a review of the 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”.
The Superior Courts of the country from time to time rendered the judgments holding therein that the Review petition does not mean rehearing of the case that is already decided. The Hon’ble Supreme Court of Pakistan in the case titled, “Mian Rafiq Saigol vs. Bank of Credit & Commerce International (Overseas) Ltd” reported in PLD 1997 S.C. 865, did not reconsider the matter, which converge on the merits of the judgment, even if the same is erroneous per se, as the exercise of review jurisdiction is neither a rehearing of the matter nor a ground to justify its review because of the finality attaches to it. Similarly, in case titled, “Ali Ahmad vs. Muhammad Iqbal” reported in (2009 SCMR 394), the Hon’ble Supreme Court of Pakistan has held that:
“A review by its very nature was not an appeal or rehearing merely on the ground that one party or another conceived himself to be dissatisfied with the decision of the Court.”
7. Admittedly, the suits were for recovery of certain specific amount against the defendants including the petitioner, and the plaintiff/predecessor in interest of respondent No. 1, has properly valued the suit for the purpose of Court fee and jurisdiction, than the petitioner was required to affix the Court fee as per law, though it was the matter between the petitioner and the Court of appeal, however, the petitioner was required to have affix the Court fees at the time of presentation of appeal or when he was directed by the appellate Court with certain reasonable time either to affix the Court fee, or to make the deficiency good, the none compliance of the order, certainly entails panel consequences being provided in Order VII Rule 111(b)(c), of the Code of Civil Procedure, 1908.
8. Another equally significant aspect of the matter was the direction of the Court when the petitioner was given the period of three days so then the period provided by the Appellate Court, he could submit the application by taking ground provided to him Under Order XLIV, or Order XXXIII, Rule and he could also seeks stay against the order for compliance of the Court Order but once the time lapsed, the penal provision would automatically come into play, the party against whom the directions were given would have to bear the consequences of the same, undisputedly, the application for the review was submitted after the expiry of time and that too with such flimsy grounds which were not available to the petitioner on which the learned Appellate could review its order.
9. Furthermore, the provision relating to the submission of the plaint or appeal as pauper are dealt with Under Order XXXIII, Rules 2 and 3, whereby, it was provided by the legislature that every such application shall contain the particulars as provided in Rule 2 with a schedule of any movable and immovable property belonging to the applicant with the estimated value there, shall be annexed there too and it shall be signed/ verified in the manner prescribed for signing and verification of pleadings and every such application shall be presented by applicant in person, unless he is exempted from appearing in Court in which case the application may be presented by an authorized agent who can answer all material question relating to the application and may be examined in the same manner as the party presenting him might have been examined as such party attended in person. The Rule further provided the examination of the applicant in this respect, in which Rule 4, is reproduced as under:
“(1) Where the application is in proper form and duly presented the Court may if it thinks fit examine the applicant or his agent when the applicant is allowed to appear by agent regarding the merits of the claim and the property of the applicant.
(2) Where the application is presented by an agent, the Court may if it thinks fit order that the applicant be examined by a commission in the manner in which the examination of an absent witness may be taken.”
10. The memorandum of appeal reveals that at the time of filing no such application was filed before the learned Appellate Court, similarly the appeal was not presented in accordance with Order XLIV, Rule 1, and Order XXXIII, Rules 2 and 3 of the Code of Civil Procedure. It is important to note that any such application seeking the presentation or suit or appeal as pauper deserves its dismissal Under Order XXXIII, Rule 5, which provides:
“The Court shall reject an application for permission to sue as a pauper,--
a) where it is not framed and presented in the manner prescribed by Rules 2 and 3, or
b) where the applicant is not a pauper, or
c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or
d) where his allegations do not show a cause of action, or
e) where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter”.
“The petitioner did not comply with the direction and after expiry of the period for payment of Court-fee, moved an application for permission to sue as a pauper. The application was dismissed for lack of sufficient ground enabling him to sue as a pauper. The appeal was also dismissed for non-compliance of the direction to make up deficiency of Court-fee vide order dated 31-5-1994. The writ petition filed by the petitioner also met the same fate.”
(Y.A.) Revision petition dismissed
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