2021 P Cr (PLP)

Laws Cited

Representation

• ----O. XLVI, Rr. 4, 6 & O. XLIII, R. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 42-A(1)---Review of Supreme Court Judgment---Procedure---Petition had been filed for review of the judgment whereby application for initiation of contempt proceedings had been consigned to record for the reason that the judgment of the Court had been implemented---Scope---Petitioner had himself filed the review petition, whereas, under R. 6, O. XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, except with the special leave of the Court, no advocate other than the advocate, who appeared and argued the case at the time of hearing in which the judgment or order sought to be reviewed had been delivered, could draw the application for review---Under R. 4, O. XLVI, Azad Jammu and Kashmir Supreme Court Rules, 1978 filing of the certificate in support of the review petition was also mandatory---Petitioner had failed to fulfil the mandatory requirements of law, hence, that review petition entailed dismissal---Review petition was dismissed, in circumstances.
• Ch. M. Manzoor and Sajjad Ahmed Khan, Advocates for Respondents.
• 4. The Advocate signing the application shall specify in brief the points upon prayer for review is based and shall add a certificate to the effect that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
• 6. Except with the special leave of the Court, no application shall be drawn by any advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the hearing of the application for review.
• "The petitioner has herself filed the review petition. Under Rule 6 of Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, every review petition shall be filed by the advocate who appeared at the hearing of the case in which the judgment or order sought to be reviewed, was made. The rule further provides that review petition may be drawn by any advocate with special leave of the Court. In that case, the advocate who appeared in the original case, shall remain present in the Court unless his appearance is dispensed with and rule 4 of Order XLVI, postulates that the Advocate signing the application shall specify in brief the points upon which the prayer for review is based and shall add a certificate to the effect that consistently with the law and practice of the Court, a review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion. The review petition cannot be filed without a certificate of the counsel who signed the review petition. There is a wisdom behind it that review petition on legal question is maintainable on the basis of certificate in the form of reasoned opinion by the advocate who appeared in the original case. It was observed in the case titled Ghulam Nabi and others v. Muhammad Khan and others (Civil Review No.31 of 2014, decided on 08.05.2015), as under:-
• 'The wisdom behind the rule is that the advocate who conducted the case is well aware of the facts and law. He may form opinion that review lies on the ground that there is some error apparent on the face of record and in civil matters on the ground akin to Order XLVII, Rule 1, C.P.C. or discovery of some new evidence is available which was not available at the time of appeal or any other sufficient ground. An ordinary person cannot form such opinion. The review petition is accompanied by a certificate of the petitioners who are not advocates. Only an advocate who represented the party in the appeal may file such certificate. Therefore, the review petition is in violation of Rule 4 of Order XLVI.'
• 'A certificate as required under Order XLVI, Rule 4 of the Supreme Court Rules, 1978 has been filed by the petitioners themselves. The requirement of Order XLVI, Rule, 4 is that no advocate other than who represented the party in the original appeal may draw the review petition and Rule 4 postulates that the advocate signing the review petition shall file a certificate to the effect that consistently "with the law and practice of the Court, a review petition would be justifiable in the case". The wisdom behind the rule is that the advocate who conducted the case is well aware of the facts and law. He may form opinion that review lies on the ground that there is some error apparent on the face of record and in civil matters on the ground akin to Order XLVII, Rule 1, C.P.C. or discovery of some new evidence is available which was not available at the time of appeal or any other sufficient ground. An ordinary person cannot form such opinion. The review petition is accompanied by a certificate of the petitioners who are not advocates. Only an advocate who represented the party in the appeal may file such certificate.'
• In the present case, the petitioner has himself filed the instant review petition, whereas, under Rule 6, Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, except with the special leave of the Court, no Advocate other than the Advocate who appeared and argued at the time of hearing of the case in which the judgment or order sought to be reviewed has been delivered; can draw the application for review. Furthermore, under Rule 4, Order XLVI (supra) filing of the certificate in support of the review petition is also mandatory. As the petitioner has failed to fulfil the mandatory requirements of law, hence, this review petition entails dismissal.
• 4. Although, the petitioner requested for granting time to engage the counsel, however, as stated hereinabove no Advocate other than the Advocate who appeared at the time of hearing of the case in which the judgment or order sought to be reviewed has been handed down; can draw the application for review, thus, his request is not tenable.

Headnotes / Summary

Judgment & Decree