2000 PLP 2509 (YLR)

Rule

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. (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. Rule

2. To whom applications for review may be made.‑‑‑An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake , or error apparent on the face of the decree, shall be made only to the Judge who passed the decree or made the order sought to be review, but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under Rule 4, sub‑rule (2), proviso (a), be disposed of by his successor. Rule

3. Form of application for review‑‑ The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review.

4. Application where rejected ‑‑‑(1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. Application where granted. ‑‑‑(2) Where the Court is of opinion that the application for review should be granted, it shall grant the same: Provided that‑‑ (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and (b) no such application shall be granted on `the discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. Rule,

5. Application for review in Court consisting of two or more Judges ‑‑ Where the Judge or Judges, or any one of the Judges, who passed the decree of made the order, a review of which is applied "for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. Rule

6. Application where rejected ‑‑ Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected. (2) Where there is a majority, the decision shall be according to the opinion of the majority. Rule

7. Order of rejection not appealable, Objections to order granting application.‑‑‑(1) An order of the Court rejecting the application shall not be appealable; but an . order granting .aft application may be objected to on the ground that the application was‑‑‑ (a) in contravention of the provisions of Rule 2, (b) in contravention of the provisions of Rule 4, or (c) after the expiration of the period of limitation prescribed therefore, and without sufficient cause. Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit. (2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and where it is proved to the satisfaction of the Court that he was. prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the tile upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No order shall be made under sub- rule (2) unless notice of the application has been served on the opposite party. Rule

8. Registry of application granted, and order for re‑hearing. ‑‑‑When an application for review is granted, a note thereof shall be made in the register and the Court may at once re‑hear the case or make such order in regard to the re‑hearing as it thinks fit. Rule

9. Bar on certain applications.‑‑‑(I) No application to review an order made on an application for a review of ‑a decree or order passed or made on a review shall be entertained. (2) Nothing in this Order shall apply to any judgment pronounced or order made by the Supreme Court.

9. From the contents of the above provisions of section 114 and Order XLVII the following things are clear:‑‑‑ (1) that a review is not equated with an appeal; (2) that an error to attract review must be blatant and obvious and it must not be one requiring any elaborate discussion for its establishment. (3) that a review cannot be made a pretext for re‑hearing the case, and (4) that the power to review Court's own judgment is only discretionary and it is not mandatory for a Court to do so. In the case of Faqir Muhammad Khan v. Akbar Shah (PLD 1973 SC I 10) it was observed that discretion must be exercised upon sound judicial principle.

10. The manifest reason behind the conferment of discretionary power of review to a Court is to prevent injustice being done by a Court, as far instance where by some inadvertance some important statutory provision has escaped notice but in no case it is a re‑hearing on merits. A review is not an appeal. An appeal is a remedy provided by law for getting the decree of the lower Court cancelled and is in fact a complaint made to the higher Court that the decree of the lower Court is unsound and wrong. An appeal when presented puts the decree in jeopardy, but until such decree is reversed or modified in appeal it remains effective, unless it is a nullity. A review differs from an appeal in that the primary intention of the Review is the reconsideration of the subject by the same Judge under certain conditions while an appeal is .a rehearing by another tribunal. In appeal, the points to be decided are those on which the parties are at variance. A review also differs from a revision. A revision is a matter between a higher Court and a lower Court; in fact revisional powers may in certain cases, be exercised without an appeal or an application by any ' of the parties concerned. Il. In the present case the relevant notifications on the record now highlighted leave no doubt that the Project Director vide his order, dated 8‑2‑1988 (Annexure K) had requested the Director‑General Agriculture (Field) to create posts of Superintendents in the Market Committee in BS‑

15. The sanction was issued and post created vide letter, dated 15‑2‑1989 (Annexure‑J). It was later on upgraded to BS‑15 vide Notification, dated 20‑7‑1989 (Annexure L). Rule XX of the Punjab Market Committee Employees (Pay Revision) Rules, 1972 which provided that Revision of Basic Pay Scales, 1987 applicable to the employees of the Punjab Government in respect of Pay Scales and the Fringe Benefits has to be equally applicable to the employees of the Market Committees in the Province. The basic appointment letter of the petitioner (Annexure M) also provided that he will be governed by such rules and orders relating to Leave, T.A., Medical Attendance and Pay etc., as issued by the Government from time to time for the categories of employees to which he will belong.

12. From the above discussion it is crystal clear that had those notifications and rules been properly so highlighted and brought to the notice of this Court there would not have been blatant and apparent error of law. To rectify an error apparent whereby the cause of justice is advanced in accordance with the true and unrebuttable facts without adversely affecting the right of the other side cannot be termed as tilling in the lacuna of evidence. The basic principle is that truth must prevail and no technicalities should come in its way. What is substantial justice? It is the other name of making the truth prevail. The sole aim‑ of providing the right of appeal, revision or review is also this that rights remain protected, secured and unviolated. As such, to avoid miscarriage of justice; review application is allowed and consequently the Writ Petition No.10806 of 1996 also merits to be allowed. The same is allowed. H.B.T./M‑245