P L U 1988 Supreme Court 664 (PLP)

NASIM HASAN SHAH, J.‑‑The facts, which form the background, are indeed extraordinary and unusual. A Civil Appeal No.48 of 1971 was heard by a Bench consisting of Mr. Justice Muhammad Yaqub Ali, Mr. Justice Salahuddin Ahmadl and Mr. Justice S. Anwar‑ul‑Haq of this Court on 7‑3‑1974. After the conclusion of the arguments the learned Judges announced that " the appeal was being allowed. However, when the written judgment was received in the office on 27‑3‑1974, it showed that the appeal had been dismissed and a certified copy of the said judgment was also supplied by the Registry to respondent No.l on 1‑4‑1974. The appellant thinking that his appeal had been allowed was greatly disturbed on becoming aware of this and appears to have brought the matter to the notice of the Hon'ble Judges who had heard the appeal. Mr. Justice Muhammad Yaqub Ali, the Senior Judge of the Bench, which heard the appeal, whereupon took up the matter with the then Hon'ble Chief Justice (Mr. Justice Hamoodur Rehman) and addressed a note on 3‑4‑1974 to him, which said:‑ "My dear brother, According to, the note in my minute book the appeal was allowed. " A letter was, accordingly, also issued to Mr. Saeed Akthar, the learned counsel for the respondents by the office on 8th April, g 1974 to indicate that the copy of the judgment issued to him was not to be acted upon. The said memo reads as follows:‑ MEMORANDUM Subject:‑Civil Appeal No.48 of 1971. ' Lal Din v . Haji Abdul Waheed etc.) With reference to his application, dated 27th March, 1974, for supply of a certified copy in the case cited as, subject, Mr.Saeed Akthar, Advocate, Supreme Court, is informed that the copy of judgment supplied to him on Ist April, 1974, in this case may be treated as cancelled, as the hearing of the case will take lace afresh. He is, as such, requested to kindly inform client is that the copy supplied by this registry on 1st April may not be produced before any Court of law in Pakistan, either for a reference or for its implementation. Sd/ Incharge, Printing, Branch Mr. Saeed Akhtar Advocate, Supreme Court 4, Mozang Road, Lahore." (Underlining is ours). On receipt of this memorandum, the respondents submitted an application dated 4‑5‑1974 challenging the above memo contendipg that a judgment, once signed by the Hon'ble Judges and its copy supplied to a party, cannot be cancelled except in due course of law, namely, on a proper application for review by the aggrieved party which was not the case. Furthermore, that this Court did. not have any suo motu power of review. It was also submitted that the order (if any) of cancellation of the judgment is void and of no effect. It was ultimately prayed that these submissions may be considered by the Court before any further proceedings are set down for fresh hearing in respect of the Civil Appeal No.48 of 1971. The attention of the then Hon'ble Chief Justice (Mr. Justice Hamoodur Rehman) appears to have been drawn to this application and he recorded the following note on 11‑5‑1974 in . connection therewith:‑ "Will HJ(1) kindly see this and then I would like to discuss this with him." The matter was then presumably discussed by the Hon'ble Chief Justice with Hon'ble J(1) (Mr. Justice Muhammad Yaqub Ali). However, on the file‑cover of the case Mr. S.A. Nizami has recorded a note "for re‑hearing at Rawalpindi‑‑ Bench HJ(1), HJ(2) and HJ(3)". In the meanwhile the learned Judges who heard the appeal! scored off their signatures appended to the judgment whose copy was supplied on 1‑4‑1974 and recorded another judgment duly signed by them, allowing the appeal and this judgment was received in the office on 19th May, 1974. As some decision had apparently been taken for re‑hearing of the appeal‑; the same was ultimately placed for hearing some seven years later before a Bench consisting of Mr. Justice Aslam Riaz Hussain, Mr. Justice Muhammad Afzal Zullah and Mr. Justice Abdul Kadir Shaikh at Lahore on 26‑10‑1981. When the appeal came up for hearing, the learned counsel for the respondent (Mr. S.M. Zafar) reiterated the submission made in the application dated 4‑5‑1974 by the respondent to the effect that the judgment once signed by the Hon'ble Judges and copy supplied cannot be cancelled except in due course of law. Hence, there was no question of re‑hearing of the case. This preliminary objection appears to have found favour with the learned Judges who were rehearing the matter. They observed that the inquiries made by them revealed that the photostat copy of the judgment which was being relied upon by the respondent was genuine and that the appeal stood decided by that judgment. They went on to observe that "but for reasons which cannot be deciphered, the appeal was fixed for hearing again" and added that "in the circumstances the appeal was actually decided by the judgment of this Court dated 7‑3‑1974 and the only mode available for re‑hearing of the appeal is by way of seeking review of the judgment, we have no other option but to hold that this appeal stands disposed of by the judgment of this Court dated 7‑3‑1974". This should have normally disposed of the matter but this was not so as the respondent submitted an application under Order XXXIII, Rule 6 of the Supreme Court Rules (C.M.P.No.lll‑R of 1981) on 25‑11‑1981, wherein it was, inter alia, submitted:‑ "5 ....................................... .... Ultimately on 5‑11‑1981 at Rawalpindi the appellant's A.O.R. in the presence of the Hon'ble Chief Justice saw the record and it transpired that the signatures of the Hon'ble Judges on the judgment by which the appeal by mistake was dismissed, were acored off. Instead a judgment duly signed by the Hon'ble Judges in accordance with the decision announced was there alongwith a note (chit) by one of the Hon'ble Judges.

6. That as submitted the judgment on the record is one by which the appeal was accepted. This judgment is signed by the Honourable Judges who heard the appeal.

7. That as the record i.e. the judgment accepting the appeal was not before this Hon'ble Court, the impression given was that the judgment signed by the Hon'ble Court was one by which the appeal had been dismissed. The position that has emerged is contrary to the impression.

8. That since it has been established that the signed judgment on the record is the one by which the appeal had been accepted, the same will hold the field in accordance with the decision announced on 26‑10‑1981 " Subsequently two further applications were also received in the Registry; one filed on behalf of the respondent on 9‑6‑1982, praying for an early disposal of the application filed by the appellant (C.M.P.No.lll‑R of 1981) and the other by the appellant on 28‑11‑1982 (C.M.P.No.224‑R of 1982) to restrain respondent No.l from using thecertified true copies of the judgment dated 7‑3‑1974 and 26‑10‑1981. The matter is now before, us. Mr. Sharifuddin Pirzada on behalf of the appellant has submitted that the matter, which needs consideration today, is only confined to the disposal of the miscellaneous application submitted by the appellant on 25‑11‑1981 (C.M.P.No.i11‑R of 1981) wherein it was submitted that since it has been established that the signed judgment on the record is the one by which the appeal was accepted the same holds the field. In support of his contention the learned counsel has drawn our attention to the provision of Order 1, rule 5 of the Supreme Court Rules, namely, that "save as otherwise expressly provided by these Rules, the provisions of the Code shall not apply to any proceedings in the Court". He has then drawn our attention to Rules 1 and 2 of Order XX which are as follows:‑ "

1. The Court, after the case has been heard, shall pronounce judgment in open Court, either at once or on some future day, of which due notice shall be given to the parties or their Advocates‑on‑Record and the decree or order shall be drawn up in accordance therewith.

2. Subject to the provisions contained in order XXVI, a judgment pronounced by the Court or by majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission." The submission of the learned counsel is that after the case has been heard and the Court has pronounced the judgment in open Court, the decree or order shall be drawn up in accordance therewith. In the present case, the judgment announced in open Court was to the effect that the appeal was accepted and this order could not be changed except in accordance with the provisions of Order XXVI i.e. the order providing for Review; hence the first written order signed by three Judges being against the judgment pronounced in open Court was non‑esse, as it :vas contrary to the oral order pronounced in open Court, which order had not been reviewed under order XXVI. Hence, the only order in the field, was the subsequent signed order (available on the record which conformed with the judgment pronounced in open Court). As far as the order passed by this Court dated 26‑10‑1981 is concerned, it is submitted that the same was passed without all relevant records being before the Court. In this connection, attention is invited to the fact that there is no reference made by the learned Judges to the subsequent signed order, which is also dated 7‑3‑1974, allowing the appeal. Furthermore, according to the learned counsel, the order of the learned Judge dated 26‑10‑1981 merely states that it is the order dated 7‑3‑1974 which holds the field. As the valid order dated 7‑3‑1974 is the one which is the signed order by the learned Judges whereby the respondents' appeal stood accepted even the order dated 26‑10‑1981 supports the stand of the appellant. In reply Mr. S.M. Zafar's submission is that the judgment pronounced in Court after conclusion of the hearing of the appeal on 7‑3‑1974 was not that the appeal was being allowed but that it was being dismissed. Hence the whole thesis built on the premises that the judgment orally pronounced, on the conclusion of the hearing, was that the appeal is being accepted, falls to the ground. In the alternative, it is submitted that even if this was not so, once a written order dismissing the appeal was signed and a copy thereof supplied to the respondent no law exists permitting the signatures on such an order to be scored off. Any change in such an order can be made only by reviewing it. Thus, if a mistake was indeed committed by the learned Judges in their written order and the Court considered that it required correction, the same could be corrected only after hearing the parties, especially when a copy of the said order had been supplied to the respondent. As for the submission that the judgment which ruled the field must be deemed to be the one which is duly signed by the Judges and not the first judgment, it is submitted that this submission is untenable because the terms of the order dated 26‑10‑1981 are clearly to the contrary. In this order it is clearly said that the photostat copy of the judgment produced by the learned counsel for the respondent "is genuine" and the appeal stands decided by it. Now, the photo stat copy that was produced by the respondent was the first copy according to which the appeal was dismissed. However notwithstanding these leas, the learned counsel submitted that he was agreeable in order that "complete justice" is done in the case, to the appeal being heard afresh. It is a pity that this last‑mentioned submission was not made when the case came up for re‑hearing on 26‑10‑1981. On that date, the appellant was not objecting to the re‑hearing of the appeal and it was only the respondents' counsel (Mr. S.M. Zafar) who objected to it. Anyhow, in our opinion, at present this seems 'to be the most appropriate and the fairest course to be followed to settle this unfortunate imbroglio. Although it does appear that the oral order pronounced after hearing of the appeal on 7‑4‑1974 was indeed to the effect that the appeal was being allowed. This is borne out not only by the note addressed by Mr. Justice Muhammad Yaqub Ali to the Hon'ble Chief Justice but also confirmed by the perusal of the minute book of Mr. Justice Salahuddin Ahmad. Anyhow, in the written judgment recorded by Mr. Justice Salahuddin Ahmad, the appeal was shown as dismissed and this judgment was signed by the other two Judges of the Bench and its copy supplied on 1‑4‑1974 to the respondent. Thereafter, when this matter was brought to the notice of the learned Judges they immediately directed that the counsel for the respondent should be intimated that the copy supplied to him was to be treated as cancelled "as the hearing of the case will take place afresh". This shows that the learned Judges themsleves at that stage felt that the hearing of the case afresh would be the appropriate course to be followed to correct the mistake that had been committed by them. Now the controversy before us is whether the first written order should be considered to be the judgment pronounced by the Supreme Court on 7‑3‑1974 or it is the second written order which was recorded after the learned Judges had scored off their signatures from the first written order which should be so considered. It is manifest that there is no law which provides for scoring off the signatures after the judgment has been signed. If indeed a mistake was committed by the learned Judges and they wished to correct it, the parties should have been resummoned and after pointing out the mistake, they should have corrected it after hearing whatever they had to say on the subject. Undoubtedly, something can be said for the submission that the judgment pronounced in open Court after conclusion of the hearing is the judgment of the Court and it is that judgment which conforms with the judgment so pronounced which will be deemed to be the judgment of the Court. But the submission on, the other hand that the written judgment duly signed by the learned Judges whose copy was supplied to the respondent showing that the appeal was dismissed cannot be just ignored and if any correction therein is warranted this is only possible by following the procedure prescribed for review under Order XXVI, is also equally plausible. In these circumstances, we think that to do complete justice in the case, it would be appropriate to hear the appeal afresh. This also appears to be the course which the learned Judges, who committed the mistake appear to have suggested as is evident from the memorandum issued by the office of this Court on 8‑4‑1974. This also would conform to the spirit of Article 187 of the Constitution. We, therefore, direct that the appeal shall be posted for hearing afresh at an early date. Civil Miscellaneous Application No. 111‑R of 1981 stands disposed of in these terms. Costs in this application will be the costs in the cause. M . B . A . /L‑13/S Order accordingly.