ORDER SHEET

HIGH COURT OF SINDH, KARACHI

Suit No.05 of 1998

   Date                     Order with signature of Judge.

1. For hearing of CMA No.9255/2013

2. For hearing of CMA No.6333/2013

Mst.Doda Begum                          ……………..Plaintiff

Versus

Israr Hussain Zaidi & others          ...... …..Defendants

Date of hearing 28.10.2013

Mr.Gharib Nawaz Daccawala, Advocate for the plaintiff

Moulvi Iqbal Haider, Advocate for the legal hers of the defendant No.1.

Defendant No.2 & 3 already declared ex-parte.

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Muhammad Ali Mazhar, J:- In this suit for declaration, cancellation of documents, possession, permanent injunction and mense profit, the plaintiff has prayed for the declaration that she is absolute owner of House No.     R-107, Sector 15-A/5, KDA Scheme Buffer Zone, North Karachi Township, Karachi admeasuring 120 sq.yards vide conveyance deed dated 3.8.1987 and she was under the possession. It is further stated that in the year 1994, she went to Rawalpindi and in her absence she posted two watchmen namely, Akhtar Zaman and Muhammad Sultan for protection of the property in question. However  when she returned back in the year 1996, she found that the defendant No.1 was in possession on the strength of a conveyance deed dated 28.9.1995. The plaintiff has further prayed for the cancellation of the sale deed executed by the defendant No.2 in favour of the defendant No.1 and the possession of the property in question.

2. This matter was partly heard by some other learned judges of this court but hearing could not be concluded for one or the other reason.  During the pendency of suit, the defendant No.1 expired and his legal heirs were brought on record (wife, daughter and a son) that are now in possession of the property. When this matter was fixed before me on 5.3.2013, the plaintiff and Mst.Saeeda Nighat Naqvi (widow of the defendant No.1) both were present along with their counsel and in their presence learned counsel appearing for parties made a request for a short date for making an attempt of amicable settlement and for exchange of offers. By consent, the matter was adjourned to 6.3.3013. Again on 6.3.2013, the aforesaid parties were present along with their counsel when Mst.Saeeda Nighat Naqvi (widow of the defendant No.1) had agreed that the property in question may be sold out through Nazir of this court and out of sale proceed, a sum of Rs.25 lakhs will be paid to the plaintiff and remaining amount will be paid to her. On the mutual agreement, the Nazir of this court was appointed Commissioner to evaluate the property in question and obtain bids and submit the same in court for approval. Mst.Saeeda Nighat Naqvi also agreed to deposit Rs.30,000/- tentatively with the Nazir of this court for publication charges. It was further clarified in the order that the entire expenditure including publication charges and Nazir’s fee will be deducted from the sale proceed and will be adjusted in the shares of parties accordingly.

3. However on 21.5.2013, the newly appointed advocate for the legal heirs of defendant No.1 filed an application (CMA No.6333/2013) under Section 114 read with Section 151 CPC, in which it was prayed that the order dated 6.3.2013 may be recalled/reviewed as the wife of deceased defendant No.1 is not willing to get this matter disposed of on the basis of compromise and she wants the disposal of the suit on merits. On 6.8.2013, the learned counsel for the legal heirs of defendant No.1 requested that Mst.Saeeda Nighat Naqvi wanted to file additional affidavit in support of review application and he sought two weeks’ time. On 29.8.2013, Moulvi Iqbal Haider, her learned counsel   also requested for time to file application for condonation of delay in support of review application. However on  31.8.2013, instead of filing condonation application under Section 5 of the Limitation Act, he filed an application (CMA No.9255/13) under Section 14 of the Limitation Act. In this application he took the plea that Mst.Saeeda Nighat Naqvi wrongly filed CMA No.2899/2013  in which she supported the order dated 6.3.2013 but requested for slight modification that she may be allowed to dispose of the property by her own.

4. The learned counsel for the legal heirs of defendant No.1 referred to additional affidavit filed by Mst.Saeeda Nighat Naqvi in which she took the stand that her earlier counsel mislead her as she only understood that she would only pay Rs.10 lakhs to Rs.15 lakhs to the plaintiff from her own sources and the subject property will not be sold out as she is widow and she has no accommodation to live except the suit property.

5. The learned counsel argued that on 5.3.2013,  Mst.Saeeda Nighat Naqvi was waiting for her case and suddenly her earlier counsel appeared and stated that the matter has been adjourned to 6.3.2013 for an amicable settlement. On 6.3.2013, she understood that the settlement between her and plaintiff is on the terms as her counsel informed her. In the affidavit Mst.Saeeda Nighat Naqvi admitted to have moved CMA No.2899/2013, but now she insists that this application be ignored and the review application should be allowed so that the consent order dated 6.3.2013 should not remain in the field. It was further averred that the consent of Mst.Saeeda Nighat Naqvi was recorded due to misleading of her counsel as she was not aware regarding the compromise so, her newly appointed  learned counsel requested that the order dated 6.3.2013 may be reviewed and the matter may be decided on merits. In support of his arguments, the learned counsel referred to following case law:-

(1) 1990 PLC 609 (Assistant Director, Labour and Inspector of Factories, Hyderabad v. Naeem Ali Muhammad Munshi, Employer, Shalimar Food Products). This judgment has no relevancy with the facts and circumstances of the case in hand. In the cited judgment, the learned Tribunal only quoted the meaning of word ‘Resolve’, which means to convert a discord into concord, to make up one’s mind, to decide, to determine upon, to pass a resolution etc. Above meaning was quoted from Cassell’s English Dictionary.

(2) 2002 SCMR 144 (Mst.Anwar Bibi and others v. Abdul Hameed). Provision of Section 14 of the Limitation Act, 1908, applies to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that there is some other cause of like nature which makes it impossible for the Court to entertain it. Object behind Section 14 of the Limitation Act, 1908, is protection against the bar of limitation of a party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature.

(3) PLD 2000 S.C. 94 (K.E.S.C. Ltd. v. Lawari and 4 others). Section 14 and 15 delay in filing appeal. Condonation of delay. Filing of appeal in a wrong court on account of mistaken advice tendered by the counsel. When constitutes a “sufficient cause”. Notwithstanding the fact that section 14 of the Limitation Act, 1908 in terms does not apply to proceedings of an appeal, if the appellant is liable to establish that he followed the remedy before a wrong forum in good faith the court may condone such delay in filing of the appeal treating it as sufficient cause under Section 5 of the Limitation Act. What constitutes “sufficient cause” in such cases would depend on the facts of each case.

6. On the contrary, the learned counsel for the plaintiff argued that the order dated 6.3.2013 was passed with the consent of parties on which date not only Mst.Saeeda Nighat Naqvi was present in court but her counsel was also present and after due deliberation between the plaintiff and her and with the consent of their counsel this order was passed. She agreed to make the payment and also consented to the order with open eyes and application of mind. At this stage there is no plausible reason for the review of the order. It was further argued that the review application is also time barred and no application for condonation of delay was moved under Section 5 of the Limitation Act. He further argued that the consent order is binding upon the parties. It was further argued that on one hand at belated stage, application for review has been moved for the reviewing or recalling the order dated 6.3.2013 but in support of the same order, she herself filed C.M.A No.2899/2013 in which nothing was objected in the consent order rather she only sought modification to an extent that instead of selling the property through the Nazir, she may be allowed to sell the property. He further argued that  C.M.A. No.9255/2013 is also misconceived and irrelevant as there is no question of seeking any relief under Section 14 of the Limitation Act, as this section only pertains to exclusion of time of proceedings bona fide in court without jurisdiction. This court on its original side has the jurisdiction to try the civil suit hence the order passed by it cannot be treated as coram non judice. In support of his arguments, the  learned counsel for the plaintiff relied upon the judgment reported in PLD 1986 S.C. 542 (Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another), in which it was held that order sought to be reviewed was passed on party’s own undertaking and assent. Such order cannot be reviewed.

7. Heard the arguments. It is a matter of record that on 15.3.2013, Mst.Saeeda Nighat Naqvi, filed a statement in which she submitted that her advocate M/s. K.A.Wahab and Company is no more their counsel. On the same date, she had also filed CMA No.2899/2013 under Section 151 CPC duly supported by her personal affidavit sworn in and verified by the Identity Section (ISMS) of this court. In this application, she sought permission of this court to allow her to furnish surety in the sum of Rs.5 lakhs in the shape of National Saving Certificate Behbood Scheme within a week’s time and also requested that the publication charges may be waived due to her financial hardship. She also stated in the application that she is ready to dispose of the said property by her own and pay the amount to the plaintiff within four months from the date of order on this application. She further prayed that original title documents of the suit property may also be returned back to her for selling of the suit property. It was further assured in the application that in case of failure, the plaintiff shall pay Rs.25 lakhs only to the defendant and shall dispose of the case property by herself. The crux of this application was that she sought the permission to dispose of the suit property by herself and pay the amount to the plaintiff within four months and in case of failure the plaintiff may be allowed to dispose of the property and pay Rs.25 lakhs to her and she will dispose of the suit property by herself (plaintiff).

8. This application was placed before me for orders on 21.3.2013. Copy of application was provided to counsel for the plaintiff for filing counter affidavit. It was further stated by the counsel for the plaintiff and defendant that two sets of original title documents executed in favour of both the parties for the one and the same property have been exhibited in the evidence by them and the same are available in two separate files so for maintaining the safety, by consent office was directed to keep both the files in the safe custody. On 23.4.2013 Mr.Ghulam Yasin, Advocate filed Vakalatnama for the legal heirs of defendant No.1 and requested for time for preparation. However, on the next date Moulvi Iqbal Haider, Advocate  appeared for the legal heirs of the defendant No.1 and requested for adjournment.

9. On 20.5.2013, application for review was filed under Section 114 CPC. At the very outset, I would like to point out that for filing review application against the decree or order of this court 20 days’ time is provided under Article 162 of the Limitation Act. On the face of it, the review application is time barred, which was filed at least after the delay of more than two and half months. Even no application for condonation of delay was filed along with the application. On 29.08.2013, Mr.Iqbal Haider requested for time to file application for condonation of delay but instead of filing application for condonation he moved an application under Section 14 of the Limitation Act in which though a condonation was prayed but nothing was mentioned in the affidavit regarding the delay or the causes which prevented from filing the review application within the prescribed period of limitation. Even in this application it was prayed that the CMA No.2899/2013 filed by Mst.Syeda Nighat Naqvi may be ignored as the same was wrongly filed. To my understanding, Section 14 of the Limitation Act has nothing to do with this case. At the same time, I am also of the firm view that the nomenclature of the application does not matter but what matters is the pith and substance of the application. If I treat this application under section 5 of the Limitation Act even then it is necessary for this court to see the grounds which may be considered the sufficient cause for condoning the delay. It is well settled that for seeking condonation of delay, the  delay of each and every day has to be explained which has not been done in this case so on this sole ground the review application can be dismissed out rightly.

10.   So far as the merits of the review application are concerned, I feel no hesitation to hold that the order dated 6.3.2013 was passed with the consent. Even in the CMA No.2899/2013, she never asked for any review of the order but simply requested that she may be allowed to sell out the property and out of sale proceeds she will herself pay Rs.25,00,000/- to the plaintiff. It is clear from this application that said lady only wanted some modification in the order but not the review. The additional affidavit was filed by the same lady on 20.8.2013 along with the statement duly signed by her counsel. Even in paragraph (3) of the additional affidavit, it was stated that according to her understanding she was under the impression that she would only pay Rs.10,00,000/- to Rs.15,00,000/- to the plaintiff from her own source. The contents of this affidavit are suffice to demonstrate her will and intention that even today she is ready to pay 10 to 15 lacs to the plaintiff and the main reason for deviating or resiling from the consent order is nothing but to save some amount which initially she agreed to pay to the plaintiff in the sum of Rs.25,00,000/-. On the one hand review application has been filed belatedly but on the contrary the contents of the application and additional affidavit irresistibly show that she never wanted to nullify the effect of the consent order rather she admitted to pay off the plaintiff though not the originally agreed amount mentioned in the consent order.

11.   Though the review application is not maintainable and liable to be dismissed but in the interest of justice an important aspect cannot be ignored that on 6.3.2013 consent was recorded but in view of the consent, neither the suit was decreed nor it was disposed of in terms of compromise but after recording the consent further steps were to be taken including the depositing of publication charges, valuation of property and invitation of bids. So for all intent and purpose, the suit was not disposed of in terms of compromise and even if the review application is dismissed, this court has to pass the orders for disposing of the suit in terms of consent order. Despite filing review application it is categorically clear from the statement of Mst.Syeda Nighat Naqvi which she made in her additional affidavit and CMA No.2899/2013 that she sought the permission to sell out the property by her own and pay off the plaintiff. In the additional affidavit she stated that she was under the impression to pay off 10 to 15 lacs to the plaintiff. These statements do not show the complete departure from the consent order but made in order to achieve slight variance. The case law cited by Mr.Iqbal Haider are distinguishable and no germane to the facts and circumstances of the present case.

12. At this juncture, I would also like to point out that the scope of review is very limited which must be confined strictly to the errors apparent on the face of the record. The powers of review conferred upon this court are not synonymous to the powers conferred in appeal. The review is only permissible within the ambit of Section 114 or Order 47 of the C.P.C. The Review petition has always a limited scope which cannot be allowed to be an appeal in disguise. It is maintainable only upon discovering of new and important piece of evidence or when there exists an error apparent on the face of record. A wrong decision can be subject to an appeal to a higher forum but a review is not permissible on the ground that the court proceeded on wrong preposition of law. A person who is seeking review of a judgment or an order must bring his case within the four corners of provision of Order 47 Rule 1 C.P.C. It goes without saying that the purpose of review cannot be a rehearing for the purposes of seeing whether different conclusion on merits could be adopted. A consent decree or order cannot be reviewed on the ground that the decree was obtained by fraud, undue influence or coercion or on the ground that the lawyer has exceeded his authority in making the promise. The provision of review under CPC cannot be allowed to misuse in the fashion that a party in court first give its consent and then in order to resile and withdraw from the consent order change or engage new advocate to come up with the application for review to frustrate the court’s order. If this tendency or practice is allowed to be encouraged then it will create never ending chaos and dispel the sanctity attached to the judicial orders even passed with the consent of the parties. In the case of Uda Ram, reported in AIR 1998 Rajasthan 186,  the learned court observed that it is not fair to the court to change a counsel and file a review petition because the counsel engaged for filing review petition may not be aware of what had transpired in the court while deciding the petition. It may amount to embarrassment to the court to hear the grievance of a party, which has no basis and where a party does not furnish any material to substantiate the grounds taken in the review petition. The conduct of such a party is reprehensible and deserves not only to be deprecated but censured. A litigant cannot be permitted to drag the court in such a manner and force it to decide the case in a particular manner he wants.

13. As a result of above discussion, CMA No.6333/2013 filed under Section 114 C.P.C and CMA No.9255/2013 moved under Section 14 of the Limitation Act both are dismissed. Since C.M.A No.9255/2013 has been dismissed in which request was made to discard/ignore CMA No.2899/2013 which is still pending, therefore, office is directed to fix the CMA No.2899/2013 in court for hearing according to roster so that after providing ample opportunity to the parties on this application as well, the same may be disposed of in accordance with law.

Judge

Karachi:

Dated.21.2.2014