P L D 2005 Karachi 327 (PLP)

"It is therefore, clear that while exercising the ancillary jurisdiction under Order XLVII, rule 1 read whit section 115, C.P.C, the learned Additional District judge was still exercising the revisional jurisdiction. By the order which was reviewed he had allowed the revision petition but by the order in review he had dismissed the same. In this view of the matter, the finality given by section 115 to his orders remains intact nor the High Court, whose jurisdiction in a case of which its cognizance has been taken under section 115 by the District Court is ousted, can have any jurisdiction to interfere with or set aside an order, or to adjudicate upon the incorrectness of the order refusing to exercise revisional jurisdiction. The refusal to exercise revisional jurisdiction on the part of the learned Additional District Judge amounts to confirming the order of the trial Court in exercise of its revisional jurisdiction. The provisions of section 115, C.P.C. conferring. finality to the order of the District Court and excluding the jurisdiction of the High Court to sit 'in judgment over it thus, override the provision of Order XLVII, rule 1(w). If a different, view is held, that would lead to the serious anomaly which has already been pointed out. It has always been the intention of the Legislature not to allow any interference against the revisional order of the High Court also. Thus there is a specific bar under clause 10 of the Letters Patent of the High Court against an appeal to the Bench of two Judges or more from an order of a Single Judge passed in exercise of revisional jurisdiction. The same finality has been granted by section 115 to the revisional order of the District Court. " In arriving at the above conclusion regarding maintainability of the appeal, the learned Judge has relied upon the case of Muhammad Naeem Ullah Khan v. Ihsan Ullah Khan AIR 14 All 226, Muhammad Hassan Khan v. L. Bikhari Lal and others (AIR 1950 All 537) and Ghulam Hussain v. Ghulam Mustafa (PLD 1967 Lah 439). All the above three cases related to an order passed in review by an appellate Court, wherein the consensus opinion appears to be that the matter has to be considered on the basis of main jurisdiction being exercised by the Court wherein ancillary matter later on arose and once the exercise of jurisdiction with regard to main case has been ascertained, rest of the proceeding though regulated by different provision on the subject remain to be proceeding in the same jurisdiction under which the case has come up. It may be noted that such consensus view referred to above was not accepted by the Hon'ble Supreme Court of Pakistan in the case of Muzzafar Ali v. Muhammad Shafi (PLD 1981 SC 94) wherein at page 96, the Court has observed as follows:‑‑ "Learned counsel referred to Dr. M. Fazil Zahir and others v. Mst. Begum Jan and others (PLD 1966 Lah. 53) which was followed by the Letter Patent Bench in this case. He laid emphasis on a passage which exists at page 58 of the report and is to the following effect:‑‑ "When acting as a Appellate Authority under subsection (4) of section 15 of the Ordinance the High Court is to deal with the appeals in accordance with the provisions of Order XLI or Order XLII of the Code, as the case may be. That being so, it is clear that any orders passed in these appeals would be subject to review in the light of the provisions contained in Order XLVII of the Code of Civil Procedure. An order passed in review is an order made by the same authority and must be deemed to be in continuation of the previous order which is sought to be reviewed, and therefore, the power of review cannot be said to come into conflict with the idea of finality embodied in subsections (4) and (5) of section 15 of the Ordinance. " Learned counsel for the respondent adopted the reasoning given in the above passage, to show that as held therein a right of review should be held to exist in the High Court. However, with profound respect, we are of the opinion, that the above reasoning is not legally correct, vis‑a‑vis the subject‑matter under examination. Taking up the first reasoning, it states that as a petition for review, according to the High Court procedure and practice, is to be heard in that Court by the same Judge, therefore, this incident or circumstance was sufficient to vest in the said Judge under the Ordinance. This argument, respectfully speaking, deals more with the procedure as to how a review petition, if competent, is to be heard or disposed of, but cannot be a basis for holding that by itself it amounts to a conferment of a jurisdiction of review qua the types of cases involved herein. The jurisdiction to review must flow from some express provision of a statute, and as there is no such provision which confers jurisdiction on High Court to review orders passed by it in Second Appeals under the Ordinance, the fact that how the High Court otherwise disposes of various reviews in general cannot be a deciding factor in the overall context of this case. The second reasoning given in the above passage is that as an order passed in review is‑‑‑‑(or to be more precise is to be deemed to be)‑‑‑in continuation of the main Second Appeal, therefore, it follows that if the jurisdiction to hear the Second Appeal existed then the jurisdiction to hear its review must also continue to exist, implying thereby that the process of review is nothing but a continuation of the hearing of the Second Appeal itself. With due respect, this reasoning is also not correct. Aiyer in his Law Lexicon (1940 Edn.), page 1126, while describing a review states that ‑‑‑‑‑ "A review is a proceeding which exists by virtue of Statute. It is in the nature of a new trial of the issue previously tried between the parties. The cause of action being brought into Court again for trial by new petition. The proceeding in some respect resembles a writ of error and also a new trial .." To the same strain is the view expressed in Carpus Juris Secundum at page 339, where it is stated that‑‑‑ "The proceeding by way of writ or review, or, so it is sometimes called, a petition for review, or action of review, or a review, is statutory remedy unknown to the common law. It is a civil action or proceeding, and is in its nature a new trial of the issues previously tried between the parties. In some respects it resembles, although it is also distinguishable from, a writ of error, as considered in Appeal and Error, and new trial, as discussed in New Trial. It is separate proceeding from the action sought to be reviewed, commenced by a writ which is a new process, as considered infra, and is in one aspect a new and independent proceeding, and not merely a new hearing on an existing proceeding, or a continuation or further step in the action sought to be reviewed." The above discussion will show that the assumption on which the above passage was based, namely that a review in appeal is a continuation of the appeal, is not correct, with the result that the further corollary drawn therefrom in favour of existence of a right of review on that score will also consequently fall." The rule thus laid down by the Hon'ble Supreme Court of Pakistan is that the proceeding of review is an independent and separate proceeding from the one in which it has arisen and the finality that is attributed to the order, judgment and decree under review will not be so attributed to the order, judgment or decree that is passed in consequence of the review and such consequential order, judgment or decree on review will independently be open to the incidence of appeal if it is so provided in the statute. So the concept that the proceeding of review is an ancillary proceeding in the main or that the finality to the order as envisaged in terms of the provision of subsection (4) of section 115, C.P.C. will override the provision of Order XLVII, Rule 1 and Order XLVII, Rule 7, C.P.C apparently is not supportable in view of the rule laid down by the Hon'ble Supreme Court. Besides also, it may be noted that in undertaking the exercise of review, the Court has to confine itself to the limited enquiry enjoined within the four corners of Order XLVII, Rule 1, C.P.C and not to embark upon opening of the case on merit and deciding it afresh. Consequently, in dealing with the appeal as provided in Order XLIII, Rule 1(w); C.P.C the relevant enquiry of the Appellate Court will also remain confined to the limited four corners of the provision of Order XLVII, Rule 1, C.P.C and not to merits of the case itself. Further Rule 10(iv) of the Sindh Chief Court Rules (OS) provides for disposal by Single Judge appeals from orders under section 104, Order XLVII, Rule 1, C.P.C. Thus no redundancy can be attributed to the provision of Order XLVII, Rule 1(w) C.P.C. when an order is passed by revisional Court under rule 4 of Order XLVII granting an application of review. I am therefore of the respectful opinion that the law as laid down in Muhammad Rafique case (supra) is not a good law and I find the appeal to be maintainable. Having reached the above conclusion, it has to be seen whether the appeal is competent. It may be seen that the review has been allowed merely on the ground that the law did not provide for condoning the delay in filing the revision application and it being filed beyond 90 days was liable to be dismissed. The review therefore appears to have been allowed on the ground of mistake or error apparent on the face of record. In the present case, the impugned order shows that the review Court has considered the earlier judgment dated 19‑2‑1998 to be based on mistake or error of law. Such an order of review in terms of Rule 7 of Order XLVII, C.P.C is not appealable. Learned counsel for the appellant has contended that limitation for review is 90 days and the respondent's application for review was filed after 90 days of judgment dated 19‑2‑1998. To this objection, the learned counsel for the respondent has submitted that the review application was filed with certified copy of the judgment dated 19‑2‑1998 and if time taken in obtaining of certified copy is excluded, the review application was in time. In support of this submission he has relied upon Dada Steel Mills v. Government of Balouchistan (1986 SCMR 1602). In the present case the judgment was announced on 19‑2‑1998 and certified copy of which was supplied on 25‑5‑1998 and the review application was filed on 26‑5‑1998. Section 12 (2) of the Limitation Act specifically provides for exclusion of time for obtaining of certified copy of judgment for filing of review. In this view of the matter, I find that the review application was in time and appeal on this ground is also not competent. Learned counsel for the appellant has submitted that if the appeal is found to be not maintainable or not competent, it may be converted into Constitution Petition. On perusal of impugned judgment passed on review application, the review Court has taken a categorical stand that revision application filed beyond 90 days is not maintainable and the Court has no power to condone the delay in filing of the revision application. In my view this point needs to be considered in the light of the case‑law laid down by the superior Courts which unfortunately has not been referred in the impugned judgment. I therefore consider this case to be fit one to be converted into Constitution Petition. Order accordingly. As the matter will be heard by a Division Bench of the Court, the appellant is directed to supply further copies to the office and also to pay requisite Court‑fee. This compliance be made within one month and thereafter the office will fix the matter in Court as early as possible. H.B.T./L‑11/K Order accordingly.