2017 PLP 827 (MLD)

This is a review application filed by the Applicant seeking setting aside of the order dated 03.05.2013 passed by the learned Single Judge in C.M. No.340/2012 in W.P. No.11359/2007 whereby his application for restoration of main petition, which was dismissed as withdrawn, was dismissed.

2. Learned counsel for the Applicant submitted that the counsel who had withdrawn his writ petition, infact was not his counsel; that as and when any criminal matter is withdrawn the physical appearance of the Petitioner is necessary but the Applicant was not present at the relevant date when the case was withdrawn; that the matter should be decided on merits and not on technicalities; that if the impugned order is not set aside the Applicant may suffer an irreparable loss, as such the impugned order dated 03.05.2013 is liable to be set aside.

3. On the other hand learned AAG has vehemently contested the arguments of the learned counsel for the Applicant and contended that there is no illegality in the impugned order which has been passed in accordance with law, hence the instant review petition merits dismissal; that the Applicant after withdrawal of the writ petition has the remedy of private complaint, as such now he cannot reopen the matter which has been dismissed as withdrawn.

4. We have heard the arguments of learned counsel for the parties and have perused the record. The bare perusal of impugned order dated 03.05.2013 reveals that the power of attorney of the counsel who had withdrawn the writ petition on behalf of the Applicant, was available on record and he did not withdraw the petition simpliciter rather with the condition that the Applicant intends to file private complaint.

5. The principles upon which a review can be granted are well settled and elaborated i.e. there must be some new point based upon discovery of new evidence which could not with diligence, have been found out on the previous occasion. A review petition is not competent where neither any new and important matter or evidence has been discovered nor is any mistake or error apparent on the face of record. Such error may be an error of fact or of law but it must be self-evident and floating on surface and not requiring any elaborate discussion. Orders based on erroneous assumption of material facts, or without adverting to a provision of law, or a departure from undisputed construction of law and Constitution, may amount to error apparent on face of the record. On the other hand, error must not only be apparent but must also have a material bearing on the fate of the case and be not of inconsequential import. If judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable notwithstanding error being apparent on the face of record, the review petition is not competent. Reliance in this regard can be placed on the judgment of Division Bench of the Court in Shabbir Ahmed Zafar v. MBR and others, (2016 CLC 1655).

6. In view of above situation, the learned counsel for the Applicant has failed to convince us that there is an error of fact or of law on record to interfere in the same which has been passed in accordance with law. Hence, the instant application being devoid of any merit is hereby dismissed. MQ/M-16/L Application dismissed.