HCJD A -3 8

JUDGMENT SHEET
IN THE LAHORE HIGH COURT
LAHORE
JUDICIAL DEPARTMENT

Review Application No.3 of 2019

(Atta Muhammad & another versus Mst. Farrukh Batool)

JUDGMENT

Date of hearing 02-11-2021

Petitioner by Malik Mumtaz Akhtar,

Advocate.

Respondent by Maher Muhammad Akhtar Aziz,

Advocate.

SULTAN TANVIR AHMAD, J:– Through

present review application vires of order dated 27-03-2019 passed
by learned Single Judge in Civil Revision No.631-D of 2006 has
been challenged.

2. Per contents of the Civil Revision, the applicant filed

suit for specific performance on the basis of oral agreement, with
respect to land originally went in his possession being lessee of
Mst. Farrukh Batool (respondent), who filed the written statement
and contested the suit, raising legal and factual objections. The
parties led their respective evidence both, oral as well as
documentary and learned Trial Court, while giving issue-wise
findings, vide judgment dated 17-03-2005 dismissed the suit.
Applicant filed appeal which was also dismissed with special costs
by learned Appellate Court vide judgment dated 19-07-2006 and
while concurring the findings of learned Trial Court, inter alia,
following observation was passed by learned Appellate Court:-

“Learned trial court has rightly held that the PWs are
closely related to each other and they have failed to
prove any existence of transaction in dispute and
 Review Application No.3 of 2019 (Judgment) 2

payment of earnest money to the defendant. The

learned trail Court has also rightly observed that the
plaintiffs had instituted this suit to prolong their
possession over the land in dispute as tenant.”
(Emphasis Supplied)

The aforesaid judgments were assailed before this Court, through

Civil Revision No.631-D of 2006, which was dismissed vide order
dated 27-03-2019, impugned in the present review application.

3. Learned counsel for petitioner has submitted that

revision petitioner had filed a civil miscellaneous application
No.1946-C of 2018 under Order XLI Rule 27 read with section 151
of the Code of Civil Procedure, 1908, on 18-09-2018, which was
not decided before or at the time of deciding the main case and
failure to decide the said miscellaneous application has vitiated the
impugned order dated 27-03-2019. Before answering this
contention, we would like to discuss this civil miscellaneous
application and implication of its non-disposal.

4. The application in question is for producing additional

evidence and applicant sought to produce witness of oral agreement
namely Mst. Rahmat Bibi wife of Ghulam Shabbir and one
Khawaja Arshad, Local Commissioner. The application was filed
after about one and half decade of the evidence stage, when the
applicant had ample chance to produce the witnesses. Both the
learned Courts below have concurrently observed that Mst. Rehmat
Bibi was only independent witness and she was deliberately
avoided to be produced during the trial.

5. Not just the aforesaid application is filed at highly

belated stage to fill up the lacuna, at the same time the reading of
record reveals that this application has apparently been used as a
tool to further prolong the proceedings in revision petition. Vide
order dated 04-09-2018 this Court took serious notice of delaying
tactics, which were being adopted after obtaining interim relief, in
the following manner:-
 Review Application No.3 of 2019 (Judgment) 3

“2. Present petitioner instituted suit against the

lady/respondent on the basis of oral agreement in
2003 and since then he is enjoying possession of the
disputed property despite the fact that suit was
concurrently dismissed by the two Courts below. This
Civil Revision is lingering on for the last twelve years.
The case diary maintained by this Court reflects that
petitioner obtained status quo by filing C.M. during
the pendency of this Civil Revision and till today he or
his counsel did not cooperate with the Court for its
disposal.”

6. Soon after the above observations, application under

Order XLI, Rule 27 of the Code of Civil Procedure, 1908, was filed
with the obvious object of further delay and matter was yet
prolonged for another six months, leaving this Court with no option
but to finally decide the revision petition on the basis of record and
hearing other side. Undoubtedly, the power to admit evidence can
be used at any stage(s) of appeal or even revision but this discretion
only empowers the Court to do complete justice in genuine cases
and not to patch up the weaker parts of cases and to entertain
applications at belated stage causing further delay in conclusion of
litigation, at the cost of other party. Reliance in this regard can be
placed on “Rana ABDUL ALEEM KHAN versus IDARA
NATIONAL INDUSTRIAL CO-OPERATIOIVE FINANCE
CORPORATION DEFUNCT through Chairman Punjab
Cooperative Board for Liquidation, Lahore and another” (2016
SCMR 2067), wherein it has been held, as follows:-

“We are afraid that the power under the

provisions of Order XLI, Rule 27 of the C.P.C.
for allowing additional evidence available is not
unfettered nor does the Appellate Court has the
discretion to allow additional evidence per its
own caprice, rather it (discretion) is
structured/limited by the factors enunciated in
the said provisions of law i.e., where the Court
from whose decree the appeal has been
preferred has refused to admit any evidence
which it ought to have admit. In this case, the
petitioner never moved the Courts below to
produce any evidence in the nature of
examination of the Postman which was
declined; that the Appellate Court requires any
 Review Application No.3 of 2019 (Judgment) 4

document or examination of witnesses enabling

it to pronounce its judgment does not mean that
the Court shall provide a delinquent with a
chance to make up for his omission and fill up
the lacuna of his case and allow additional
evidence particularly in the circumstances when
neither in the grounds of appeal a case for
additional evidence has been set out nor any
independent formal application has been moved
for the purposes of producing additional
evidence.”
(Emphasis Supplied)

7. We are of considered view that purported pending

application even if decided would not have resulted into any
different conclusion of the revision petition. Now coming to the
question raised by learned counsel of the petitioner, vis-à-vis the
rule that failure to decide the miscellaneous application vitiates the
judgment or decision of the main case, the Courts in discharge of
their legal and judicial duties, are emphatically required to decide
the miscellaneous applications before or at the time of final
disposal of the lis and omission to do so can ipso facto nullify the
decision in the main case. However, in performance of such
function, it is also the responsibility of the learned appellate or
revisional Courts or the learned higher foras to keep in mind the
object of filing such unattended application, its relevance and any
bearing on the merits of the case. When miscellaneous application
is totally irrelevant and/or does not have any bearing on the merits
of the case as well as when unattended application, on face of it, is
an attempt by a delinquent to cause delay by misuse of process of
law, the non-disposal of miscellaneous application alone, cannot be
a reason to interfere with a judgment, which otherwise is as per the
law and is based on sound reasoning. Any other approach to
aforesaid rule can aid the delay in justice and wastage of time in
fruitless exercise but at the same time it will encourage delinquents
to misuse the process by filing extraneous applications. Somewhat
in similar situations the Courts in cases titled “AIJAZ MAHMOOD
versus Messrs HONGKONG AND SHANGHAI BANKING
CORPORATION” (2014 CLD 1313), “KAKI verus AQLEEMUN
 Review Application No.3 of 2019 (Judgment) 5

and 3 others” (2015 CLD 290), and “Mst. MAIRAJ BIBI & 4
others versus MUHAMMAD SHAFIQUE through L.Rs. and
others” (PLD 2020 Lahore 888) have already observed that non-
disposal of miscellaneous applications having no significance or
effect on merits of the main case, is not always fatal. It will be
beneficial to reproduce the relevant part of judgment in
Miraj Bibi case (Supra):-

“It is not an inflexible rule that in all

eventualities non-decision of an application
would affect the merits of the case. When it is
found that the contents of application are
superfluous, failure to pass an order on such
application shall not cast aspersions on the
proceedings of the Court.”

8. Even otherwise, to bring the case within the ambit of

Order XLI, Rule 1 of the Code of Civil Procedure, 1908, it is
incumbent upon the applicant to establish that the mistake apparent
on the face of record, if considered will effect decree or order as
well as error must be so manifest that no Court could permit it to
remain on record. The Court cannot commence to hear the matter
as an appeal against its own judgment, which would to akin to
infringing the principle of finality firmly embodied in our judicial
system as well as Order XX Rule 3 of the Code of Civil Procedure,
1908. Reliance in this regard can be placed on “MEHMOOD
HUSSAIN LARK and others Versus MUSLIM COMMERCIAL
BANK LIMITED and others” (2010 SCMR 1036). The relevant
part of the said judgment is reproduced hereunder:-

“We have given due consideration to the arguments

advanced by the petitioners in person, gone through
the judgment sought to be reviewed. We are of the
view that before an error can be a ground of review, it
is necessary, that it must be one which is apparent on
the face of the record and that it must be so manifest,
so clear, that no Court could permit such an error to
remain on record. Incorrectness of a conclusion
arrived at after a conscious perusal of record and in
depth examination of evidence cannot be made a
ground for review because to permit a review on the
ground of incorrectness would amount to granting
 Review Application No.3 of 2019 (Judgment) 6

the Court jurisdiction of re-hearing appeals against

its own judgment.”
(Emphasis Supplied)

9. Learned Single Judge while declining to use its

revisional jurisdiction, against concurrent judgments and decrees of
learned two Courts below, has given a comprehensive judgment
while encompassing all the aspects of the case and in the light of
settled principles of law. The applicant who gained possession of
the agriculture land as tenant has managed his possession for two
decades, without payment of lease amount, on the basis of oral
agreement and throughout adopted all the tactics to delay the legal
proceedings to keep the alleged cause alive and maintain his
possession, by misuse of process of law.

10. Pursuant to the above discussion, this application

being devoid of any merit is dismissed, with costs of Rupees One
Lac (Rs.1,00,000/-).

(CH. MUHAMMAD MASOOD JAHANGIR) (SULTAN TANVIR AHMAD)

JUDGE JUDGE

Approved for reporting

JUDGE
Rao Azmat/*