P L D 1965 Azad J & K 5 (PLP)

ABDUL HAMID KHAN, C. J.‑The question whether an appli cation for review from the decree of a Division Bench passed in appeal from the decision of a Single Judge of the High Court who heard the case on the civil original side of the jurisdiction of the High Court is competent or not has been referred to the Full Bench of this Court. There is an un‑reported judgment of this Court in the case entitled "Sh. Mohammad Salim v. Azad J. & K. Government" decided on 3‑3‑1961 wherein a similar point was referred to the Full Bench and the answer of the Judges composing the Full Bench then was as under:‑ "The answer of the judges composing the Full Bench to the question whether an application for review of judgment lies, where an appeal has been decided by a Division Bench from the decree of a Single Judge is that no such application or review of judgment lies." In spite of this Full Bench judgment applications for review of judgment of the Division Bench were filed before the Division Bench of this Court but not even once it was pointed out that the review petition was not competent. In a case entitled "Friends Forest Company v. Khan Mohammad Ismail Khan" which was pending on the original side before the Single Bench of this Court the Single Judge had held the suit as competent. On appeal before the Division Bench the finding of the learned Single Judge was upheld by order dated 30‑6‑1962. A review petition was filed against this judgment on the ground that as the law had been applied on a mistaken assumption of fact, miscarriage of justice had resulted which should be set right on acceptance of the review petition. It so happened that the pro perty involved in that case was movable property but the Division Bench while delivering judgment on 30‑6‑1962 was under the mistaken belief that it was immovable property with the result that the appeal was dismissed and the judgment of the learned Single Judge was upheld. When the review petition was filed no objection was taken that the review was not competent, with the result that the review petition was accepted and the judgment under review reversed, This case was brought to the notice of the Division Bench which heard this case and the Division Bench has again referred the question to the Full Bench for further consideration of the view taken in the unreported Full Bench case of this Court. A preliminary objection has been taken by the learned counsel appearing on behalf of the respondent that since there is already a judgment of the Full Bench whereby a review petition against the judgment of the Division Bench has been held to be incompetent, the same point could not be referred again to the Full Bench. In reply it was stated that there was no legal bar to refer the same point again to the Full Bench if there was doubt about the correctness of the view previously taken by a Full Bench. Karam Elahi v. Mohammad Bashir etc. (P L D 1949 Lah. 8), was referred to by the learned counsel for the petitioner. In this case the order of reference by the Division Bench comprised of Munir and Khurshid Zaman, JJ. was as under:‑ "One of the questions arising in this case is whether under section 8 of the Suit Valuation Act it is the value for purposes of jurisdiction that determines the Court‑fee payable on suits under section 7 (iv) (c) of the Court Fees Act or vice versa. The Full. Bench decision in A I R 1941 Lah. 97 holds that it is the jurisdictional value that determines the value for pur poses of Court‑fees. As we have doubts about the correct ness of this proposition; we refer the following question to a Full Bench." The question was referred and answered. It is thus clear that a matter can again be referred to Full Bench if there is doubt as to the correctness of the previous view. The preliminary objection of the learned counsel for the respondent is, therefore, devoid of force. Now, we come to the real point in issue. In the previous unreported Full Bench judgment of this Court the view taken was as under:‑ "It was urged by the learned counsel for the petitioner that clause (b) of the section 114 of the C. P. C. is clearly applicable because where no appeal is allowed from a decree or order. the aggrieved party is given a right to apply for review. If this were all there would have been no difficulty in coming to the conclusion that review is competent. However, the con dition necessary before clause (b) can be made applicable is that `no appeal is allowed by this Code', if in a case no appeal is allowed by the Code of Civil Procedure then a review would be competent. In the present case as the Code does not deal with Letters Patent appeals, naturally it has no provision disallowing appeals from Letters Patent decrees of orders but if the Special Act, namely the Azad Jammu and Kashmir Courts and Laws Code of 1949, allows an appeal in the nature of the Letters Patent appeals as in India and Pakistan but does not allow any further appeals, it is impossible to argue that the C. P. C. has disallowed the appeal. This being so, it is quite clear to me that this application for review cannot lie under clause (b) of section 114 of the Civil Procedure Code." As for the British Indian High Courts there were two views held by them. The Patna view embodied in A I R 1931 Pat. 409 and the Allahabad view embodied in A I R 1931 All. 244 was that application for review against the decisions or appeals under the Letters Patent was not competent. In the Allahabad case, however, one of the three judges Mr. Mukar Jee had dissented from the majority view and relied on 40 Mad. 651, wherein it was held that a judgment passed on the hearing of the Letters Patent appeal was reviewable. The Bombay view as laid down in A I R 1927 Bom. 232 was that the provisions of section 114, C. P. C. and the rules under Order XLVII applied to an application for review of a decree in any appeal under the Letters Patent. Bombay had also followed 40 Mad.

651. The perusal of 40 Mad. 651 (32 I C 873) shows that the Governor General had, as empowered under section 44 of the Letters Patent, by section 117 of the C. P. C. 1908 incorporated into the Letters Patent provisions relating to reviews and it was for this reason as also because the practice in that High Court had been to allow reviews to be filed in appeals under the Letters Patent that the Madras High Court had held that section 114 of the C. P. C., 1908 applied to judgments and appeals under section 15 of the Letters Patent. This is, however, not the case in Azad Jammu & Kashmir and that is why we have to strictly construe the provisions of section 114, C. P. C. and we are, therefore, of the opinion that the majority view taken in A I R 1931 All. 244 and A I R 1931 Pat. 409 is the correct view and for this reason we do not see any reason to differ from the view already taken by the Full Bench of this Court in the unreported Judgment "Sh. Mohammad Salim v. The Azad J. & K. Government."' We, therefore, are of the opinion that a review of the judgment and decree of the Division Bench of this Court made in appeal from the decree of the Single Judge is not competent and accordingly return an answer to this effect. MUHAMMAD SHARIF, J.‑I agree. YAR MUHAMMAD KHAN, J.‑I agree The answer of the Judges composing the Full Bench to the question whether an application for review of judgment lies, wherein an appeal has been decided by a Division Bench from the decree of a Single Judge is that no such application for review of judgment lies as already held in the unreported judg ment "Sh. Mohammad Salim v. Azad J. & K. Government." K. B. A. Reference answered.