2013 PLP 1091 (CLC)

MUHAMMAD AZAM KHAN, C.J.

The respondents filed a declaratory suit in the Court of Sub-Judge Dudyal in respect of land measuring 6 kanals, comprising Survey No.226, situate in village Sahalia, Tehil Dudyal, which is admittedly shamilat deh. The trial Court decreed the suit declaring therein that the plaintiffs are owners in possession of the land. The first appeal before the District Judge as well as the second appeal before the High Court failed. Feeling aggrieved, the petitioner filed an appeal by way of leave in this Court. The appeal was dismissed and the decree was modified vide judgment dated 9th February, 2009. Feeling dissatisfied, the petitioners filed a review petition; which was also dismissed on 30th March, 2011.

2. The petitioners have now filed this application under Order XLIII, Rule 5 of the Supreme Court Rules, 1978 for amending the judgment of this Court delivered in the appeal on 9th February, 2009 and the order passed in review petition on 30th March, 2011.

3. Sardar Muhammad Azam Khan, the learned counsel for the petitioners, argued that the land is admittedly a shamilat deh. The decree for declaration cannot be passed by Civil Court for declaration.

4. We have heard the learned counsel for the petitioners. The Court while disposing of the appeal on 6th February, 2009, passed the following judgment:

"

10. From the pleadings of the parties as well as the judgments recorded by the lower Courts it appears that the suit-land is admittedly shamilat deh, about which the civil Courts have limited jurisdiction and admittedly cannot grant permanent injunction against all the share-holders who possess the land in the estate as well. Similarly unless the shamilat deh land is partitioned by metes and bounds by the revenue authorities no specific share can be declared to be in possession of any land-owner. In this view of the matter we modify the judgment recorded by the trial Court in favour of the respondents by holding that the judgment recorded by the trial Court shall be inter -party and not enforceable against other share-holders in the shamilat nor shall the same be binding on the revenue authorities who have jurisdiction to work out the share in shamilat according to the holding of land owners in the village or estate." In the referred portion of judgment, the Court in unambiguous terms held that the civil Courts have limited jurisdiction and admittedly cannot grant permanent injunction against all the share-holders who possess the land in an estate as well. It was further declared that the judgment shall be inter-party and not enforceable against the other share-holders in the shamilat. The review petition was also dismissed on the ground that the judgment is perfectly legal. There is no error apparent on the face of record.

5. It may be observed that there must be an end of litigation. The law provides a specific scheme for disposal of the cases. When an appeal is finally disposed of by this Court, the remedy by way of review petition under XLVI, Rules 1 and 2 of the Supreme Court Rules, 1978 is available provided there is error apparent on the face of record and in civil matters on the grounds similar to those mentioned in Order XLVII, Rule 1 of C.P.C. The review is not permissible on the ground that the party is not satisfied from the judgment or for reappraisal of evidence or inquiry into the facts.

6. The present application has been filed under Order XLIII, Rule 5 of the Supreme Court Rules. Whether after the dismissal of review petition, application under Order XLIII, Rule 5 is maintainable or not? For convenience we deem it proper to reproduce the said provision of law:

"Order XLIII. 1. xxx xxx xxx xxx xxx xxx xxx xxx 2. xxx xxx xxx xxx xxx xxx xxx xxx 3. xxx xxx xxx xxx xxx xxx xxx xxx 4. xxx xxx xxx xxx xxx xxx xxx xxx

5. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."

7. The Supreme Court derives jurisdiction from subsection (2) of section 42 of the AJ&K Interim Constitution Act, 1974, which provides that subject to the provisions of this Act, the Supreme Court of Azad Jammu and Kashmir shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law. Two types of jurisdiction are vested in the Court; one under section 42 of the AJ&K Interim Constitution Act, 1974, and the other by or under any law. There are number of laws which confer jurisdiction upon the Supreme Court including the AJ&K Supreme Court Rules framed under section 42-A(4) by the Court after consultation with the Council. Rule 5 of Order XLIII of the Supreme Court Rules referred to above postulates that any power vested in the rules shall not limit or affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of Court.

8. The jurisdiction referred to in section 42(2) is provided in section 42(10), (11) and (12). Subsection (10) of section 42 postulates that subject to the succeeding provisions of this section, the Supreme Court of Azad Jammu and Kashmir shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of the High Court of Azad Jammu and Kashmir. Similarly under subsection (12) of section 42 an appeal shall lie to the Supreme Court if the case is not covered under subsection (11) and the Supreme Court grants leave to appeal. The Supreme Court Rules are made for regulating the practice and procedure of the Court. Order XLIII, rule 5 also provides the procedure of the Courts during the hearing of the appeal. If the Court during the hearing of the appeal feels necessary to pass any order which is in the interest of justice or if the order is passed under rule 6, then this Court may pass any order to meet the ends of justice. In a case titled Khawar Abbas Sikandar v. The State [Civil Miscellaneous No.160 of 2009 decided on 11-11-20101 this Court while dismissing the application observed that the powers available to Court under section 42-A can only be exercised in a case or matter pending and which is brought competently before the Court. After final determination of matter in an appeal or review, no independent application, for rehearing or review of such past and closed case is entertainable, but in the case titled Mirza Muhammad Aslam Baig v. Dr. Saghir Iqbal [1992 SCR 94] this Court observed that if a judgment or order is found to be against the constitutional provisions and a proper case is made out, this Court can entertain the application under section 42-A read with Order XLIII, rule 5 of the Supreme Court Rules and recall the judgment. The relevant observation is reproduced below:

"After due consideration I am of the view that if a proper case is made out the powers of this court to recall or set aside an order are not restricted to one of the three remedies mentioned by Ch. Muhammad Taj. Outside of these remedies necessary orders can be passed by deriving powers from section 42-A of the Azad Jammu and Kashmir Interim Constitution Act which grants wide powers to this Court for doing complete justice and rule 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules which provision preserves the inherent powers of the Court to make such order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court."

9. The petitioners have moved application for rehearing of appeal after dismissal of review petition, whereby the Court categorically held that there is no error apparent on the face of record and judgment is perfectly legal.

10. The result of above discussion is that finding no force in this application, it is hereby dismissed with costs. SAK/45/SC(AJ&K) Application dismissed.