P L D 2026 Peshawar 13 (PLP)

SYED MUDASSER AMEER, J.

This petition challenges the vires of Rule 10(2), Chapter-1(a), Volume-V of Peshawar High Court Rules and Orders inserted vide Notification dated 14.06.2018. The said rule has been made by the 'High Court' in exercise of powers under Article 202 of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution'). The relevant portion of the Notification is reproduced below for ready reference: PESHAWAR HIGH COURT, PESHAWAR NOTIFICATION Dated Peshawar, the 14.06.2018. No.155/J. In exercise of the powers conferred by Article 202 of the Constitution of the Islamic Republic of Pakistan, Honourable the Chief Justice and Judges of this Court are pleased to make the following amendments in Volume-V of the High Court Rules and Order:- AMENDMENTS

1. In Chapter 1-A(a), Volume-V, the existing rule 10 shall be re-numbered as rule 10 sub-rule (1) and thereafter the following sub-rules shall be added: (2). No application for review shall be entertained unless the party seeking review furnishes a cash security of Rs. ten thousand which shall stand forfeited if the review petition is dismissed or shall be paid to the opposite party if the review petition is contested. (3). Except with leave of the Court, no application for review shall be entertained unless it is filed and certified by the Advocate who had argued the case resulting into the order sought to be reviewed nor shall any other advocate, except such Advocate, be heard in support of the application for review unless the Court has dispensed with such requirement.

2. Petitioner's case, in essence, is that the security deposit of Rs. 10,000/- required at the time of filing of application for review is violative of fundamental right of the citizens pertaining to access to justice, fair trial and right of hearing. This argument is essentially based on the premise that to get a judgment/order, passed by the High Court, reviewed by the same Court is part of the right of hearing and thus, a 'right'. We are unable to agree with the said argument, or even the very basis this argument has been built upon. In our opinion, review is not a right. It has never been. To construe otherwise would be against the very statutes providing for review. Review of the Judgments/Orders of the High Court has been provided for in Rule 10, Chapter 1-(a), Volume-V of the Peshawar High Court Rules and Orders and section 114 read with Order XLVII of Civil Procedure Code, 1908 ('C.P.C.'). For convenience of reference the relevant provisions are reproduced below: "

114. Review. (1) Subject as aforesaid, any person considering himself aggrieved (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. (2) Nothing contained in subsection (1) shall apply to a review of any judgment pronounced or any order made by the Supreme Court. (Underlining supplied) ORDER XLVII REVIEW

1. 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 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. (Underlining supplied) (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Volume-V Chapter-1(a) Rule 10-Every application for review of a judgment or order of a Division Bench, or of a Single Bench of the High Court presented by an Advocate shall be signed by him, and he shall certify that the grounds contained therein are good and sufficient grounds for the review sought. No Advocate shall be heard in support of an application for review of any such judgment or order unless and until he has certified in the manner above prescribed the grounds already taken or any amended grounds of application.

3. It is clear from the above provisions of law that review is a discretionary relief provided in alternate to the primary remedy. The litigant has a choice; he may either challenge the Judgment/Order of the High Court before the Supreme Court or he may choose to file a review where the required grounds are made out. However, it is settled that even if the required grounds are made out, it is still the discretion of the Court to grant a review. The apex Court has repeatedly held that the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles (Faqir Muhammad Khan v. Akbar Shah PLD 1973 SC 110). The review is not, therefore, as a matter of right, even though a ground for a review exists (Muhammad Zafarullah Khan v. Muhammad Khan PLD 1975 SC 300 / 1975 SCMR 473). It is a settled principle of law that the remedy of review cannot be sought as a matter of right (Khan alias Khani v. The State: 2008 SCMR 880). Thus there is no 'right' in review. A person may have, in appropriate cases, a 'right' to get his case pertaining to enforcement of fundamental rights adjudicated upon by the High Court, but he has no 'right' to get the said adjudication reviewed for a second time by the High Court. The re-opening of a matter decided after hearing the parties has nothing to do with enforcement of fundamental rights. Therefore, the entire edifice built upon this notion is untenable.

4. A similar challenge also came up for adjudication before the Supreme Court of India in the case of Lal Ram v. Supreme Court of India and others (AIR 1967 SC 847). It was contended that Order XL, Rule 2(2) of the Indian Supreme Court Rules, 1966 (which required security deposit of Rs.2000/- as a pre-condition for filing a review petition) was ultra vires Article 14 (Equality before law) of Constitution of India, in that it amounted to obstructing the enforcement of fundamental right under Article 32 (right to move the Supreme Court for enforcement of fundamental rights) thereof. Their Lordships, held as follows: "There is an essential distinction between an application for the enforcement of a fundamental right and an application to review an order made therein. The main purpose of a review petition is not to enforce a fundamental right but to reopen an order vitiated by an error on the face of record or for such other reasons." It was further held: "The fact that deposit of security is a pre-condition only in the case of a review petition does not lead to any discrimination because the main difference between a review petition and other proceedings is that in case of former this Court is asked to reopen a matter which has been closed after hearing the parties. This is a sufficient reason to sustain the distinction and it affords a reasonable nexus to the objects sought to be achieved by the imposition of the pre-condition."

5. Thus, it is settled that 'Review' is not a right. While a party may request a review of a Court's decision, there is no inherent right to such a review and it is upto the Court to determine whether or not to grant it. It is also clear that the deposit of any security amount as pre-condition for filing a review petition does not in any manner curtail the right to seek the enforcement of any fundamental right.

6. It is also to be noted that the Rule under challenge does not impose any fee or cost at the time of filing of the review petition, rather it is a security deposit, which is to be returned to the petitioner upon success of his petition. However, it is to be given to the opposite party where it fails after a contest, so that at-least some consolation is provided to the party who, after being successful, was again dragged into litigation before the same Court. This clearly shows that a person who files a review petition actually having good and sufficient grounds need not worry about the deposit of the said security, as he is most likely to get it back upon the success of his petition. The frivolous and unnecessary petitions, however will have to pay for the wastage of time and process of the Court as well as the other side. Thus, to check the menace of frivolous and unnecessary petitions cannot be said to infringe upon the rights of any person.

7. Additionally, the sheer abundance of frivolous and unnecessary review petitions required that such measures be taken. Although the relevant Rule 10 of the Peshawar High Court Rules and Orders already required that every review petition shall be accompanied by a certificate given by the advocate that there are good and sufficient grounds for review, the said certificate was, more often than not, issued by the learned advocates in routine and without application of mind. The honourable Supreme Court also, faced with a similar situation, had to increase the security deposit of Rs.2,000/- to Rs. 10,000/- by substituting Rule 7 of Order XXVI of the Supreme Court Rules, 1980, vide Notification dated 14.07.1998. This was also done despite the similar requirement of issuance of certificate by Advocates are provided in Rules 4 and 5 of the ibid Order XXVI. For convenience of reference the same are reproduced below: "ORDER XXVI REVIEW

4. The Advocate signing the application shall specify in brief the points upon which the prayer for review is based and shall add a certificate to the effect that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.

5. In case the Court comes to the conclusion that the Review Application filed was vexatious or frivolous, the Advocate or the Advocate-on-Record, drawing the application shall render himself liable to disciplinary action. ..

7. No application for review shall be entertained unless party seeking review furnishers a cash security of Rs.10,000/-, which shall stand forfeited, if the Review Petition is dismissed or shall be paid to the opposite-party, if the Review Petition is contested."

8. However, even such strict rules and enhanced the security deposit have not been able to fetch the desired results in curtailing the filing of frivolous review petitions. This is also evident from the following paragraph in the case of Muhammad Khaliq v. Gul Afzal Khan (PLD 2015 SC 247): "

6. We have noted that review petitions are increasingly being filed as a matter of routine. As a consequence, the certificate required under Order XXVI, Rules 4 and 5 is given as a matter of course by the learned Advocates without application of mind. Statistics provided by the Office show that 1324 review petitions were filed in 2013 and 2014. We also note that a certificate has been given in the present case by the learned counsel to the effect that "according to law and established practice of this Hon'ble Court it is a fit case for review ...". Fax from being a fit case for review, we find that the Law and established practice of this Court demonstrates that this is a frivolous petition where a certificate in terms of Order XXVI, Rule 4 has been filed by the learned counsel in a mechanical and unthinking manner. Such practice is to be deprecated in the interest both of the litigant and the legal system and also to further the Constitutional imperative of ensuring expeditious and inexpensive justice.

7. This review petition being without merit is, therefore, dismissed with costs."

9. In such circumstances the requirement of security deposit is not only fully justified, it was badly needed. Frivolous review applications impose a significant burden on the public exchequer as well as on the parties in whose favor an order or judgment has been passed. Consequently, the imposition of costs on such applications is a well-established practice worldwide, aimed at deterring chronic and habitual litigants from re-opening closed matters and ensuring finality in litigation. In the case of Lal Ram v. Supreme Court of India and others (supra) the Indian Supreme Court enumerated the reasons justifying the security deposit as follows: "The raison deter for the rule may be three-fold, namely; (1) The petitioner has been given a full hearing and his case has been disposed of on merits; It is a deterrent against frivolous applications; and (iii) It is to safeguard the interests of the respondent who has the judgment in his favour."

10. Thus it is clear that the requirement of security deposit is based on solid reasons and valid grounds, whereas the petitioner could not make out any valid ground to challenge the same. Consequently, it is concluded that there is no merit in the instant petition.

11. The fact that in certain circumstances a rule proves prejudicial to the interest of a petitioner cannot invalidate a rule, when this Court admittedly has the power to make it under Article 202 of the Constitution. Regarding this power and the justiciability of the rules, made in exercise thereof, before this Court under Article 199, a preliminary objection was also raised by the learned Additional Advocate General. It was contended that the rule under challenge, having been made by the 'High Court', the same cannot be challenged before this Court under Article 199 for the reason that the 'High Court' has been specifically ousted from the definition of a person in Article 199(5) and therefore regardless of the nature of the power/function exercised by the 'High Court', no writ petition could be filed against, as no writ could be issued to, a 'High Court'. More so, when the impugned rule having been made by the full court, i.e. honourable 'the Chief Justice and the Judges', is being challenged before a bench of one, two or a few of them. In support he relied mainly on the case of Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others (PLD 2021 Supreme Court 391), wherein the apex Court has held as follows: "We are clear in our minds that Chief Justices or Judges of a High Court exercising their executive, administrative or consultative actions in the context of the instant matters do not act as persona designata, rather act for and on the behest of, and as a High Court as defined in Article 192 of the Constitution and are therefore not amenable to the constitutional jurisdiction of a High Court under Article 199 thereof."

12. In Gul Taiz case the administrative, consultative and executive decisions of the Chief Justice and/or the Judges of the High Court were in question. Whereas in the instant case, under challenge is a rule made by the 'High Court' under Article 202 of the Constitution. Earlier in the case of Ch. Muhammad Akram v. Islamabad High Court and others (PLD 2016 SC 961) the apex Court, while considering Articles 199 and 208, had drawn a distinction between Judicial and non-judicial powers/ functions/decisions and had concluded that the ouster contained in Article 199(5) applied only to judicial decisions and the exercise of judicial powers of the Judges of the High Court, whereas the exercise of other powers such as administrative, consultative or executive would not fall within the ambit of the said exclusion and would thus be open to challenge under Article

199. However, in Gul Taiz case, the apex Court did not agree with the said interpretation. While revisiting/overruling Ch. Muhammad Akram's case, the apex Court held that there is no such distinction provided in the Constitution and that the doctrine of Casus Omissus being inapplicable to the Constitution, nothing can be read into it. If the framers of the Constitution had intended there to be such a such a distinction, the language of Article 199 would have clearly provided the same. Thus, the said distinction having been laid to rest by the hon'ble Supreme Court, we find no reason to resurrect the same in the context of High Court's Rules making powers under Article 202.

13. Furthermore, in Gul Taiz case the apex Court after considering Articles 176, 192, 199 and 208 also laid down the 'but for' test in the following terms: "Similarly in the instant matter, but for the person's appointment as a Judge (thereby constituting a part of a High Court or the Supreme Court under Articles 192 and 176 supra respbctively), would the function in issue be exercised? If the answer to this question is yes, then such function would not be immune to challenge under Article 199 supra. In this case with respect to the administrative, executive or consultative acts or orders in question, the answer to the 'but for' test is an unqualified no, therefore such acts or orders would in our opinion be protected by Article 199(5) of the Constitution and thereby immune to challenge under the writ jurisdiction of the High Court." Applying the said 'but for' test in the instant case, the answer would be an even more emphatic no. More so when the rule under challenge has been made by not one or few judges, rather it has been made by the 'High Court' as defined in Article 192, i.e. 'honourable the Chief Justice and the Judges'.

14. Moreover, the objection so taken makes good sense and it also appeals to reason that a rule made by all the Judges should not be subject to scrutiny and challenge before one, two or even a few of them. The situation would be exactly as observed in a judgment from English jurisdiction and quoted by the apex Court in Gul Taiz case (supra); "the process involves the rather ludicrous position that the Judges are called upon themselves to show cause to themselves". This would also be against the well-settled principle of 'comity of judges'. In Asif Saeed v. Registrar Lahore High Court and others (PLD 1999 Lahore 359) Mian Saqib Nisar, J. (as he then was) speaking for a three-member bench of the honourable Lahore High Court explained the position as follows: "

14. The contention from the petitioners' side that the administrative function of the High Court can be subjected to writ, can lead to ludicrous situations which can be well illustrated.. . It is clear that the Supreme Court of Pakistan has also been excluded from the definition of the word "person" clubbed, together with the High Court. Undoubtedly, it is inconceivable that the order of the Supreme Court on its judicial side can be challenged before the High Court in writ, irrespective of sub-Article (5). Now if the interpretation of the petitioners that administrative order of the High Court can in writ be challenged is accepted, the same rule would also apply to the Supreme Court, situation may arise where a full Court of the apex forum takes a non-judicial decision than on the basis of above reasoning a Single Judge of this Court may issue writ to quash the same which would he just preposterous. This also applies to the administrative decision taken by the Full Court of a High Court, particularly, when the same Judge/Judges are party to such a decision. There can be numerous examples cited to show fallacy of such an interpretation. If the same rule is allowed to prevail, rules made by the Supreme Court, under Article 191 and by the High Courts, under Articles 203 and 208 are not safe from attack and may become subject of every day's litigation leading to a hazardous situation."

15. It is reiterated, as was done by the apex Court while quoting the words of Justice Anwarul Haq, that the principle of 'judicial comity' has been stated only to explain the underlying reason for exclusion of the Supreme Court and the High Courts from the definition of 'person' as provided in Article 199(5).

16. Therefore, respectfully following the ratio laid down by the apex Court, we conclude that the rules made by the 'High Court' in exercise of powers under Article 202 of the Constitution is no exception and cannot be bifurcated on any ground from the settled law that no writ petition is competent against a High Court under Article 199 of the Constitution. Thus, the instant petition being non-maintainable is liable to dismissal on this score as well.

17. For what has been discussed above the instant petition being non-maintainable as well as being bereft of merit is dismissed. MH/106/P Petition dismissed.