P L D 1994 Supreme Court 607 (PLP)

The reasons pursuant to the above. ..short order were recorded on 15‑9 1991 by Salahuddin Mirza J., to which Saeeduzzaman Siddiqui, CJ. concurred with. The operative portion of the above reasons was as under:‑‑ "In short, we hold that the action of respondent No.3 does not appear to be burn fide and even otherwise it is not sustainable under law as the provisions of section 5 of Act V of 1975 were not strictly followed inasmuch as action was taken against the petitioners either without serving them with the mandatory notice under section 5 of the Act or, in the alternative, before the expiry of notice period. We are, however, riot inclined to make any observations as regards the conduct of respondents Nos.4 to 6 who were misled into providing assistance to cover a mala fide and illegal operation. We would also refrain from commenting on the further prayer as regards the restoring of the wall fixtures as the dispute is sub judiee before this Court in a civil suit."

4. It appears that the appellants as well as respondents filed separately review petitions against the above recorded reasons in the aforesaid Constitution petition. The matter had also come up before this Court in the form of Civil petition for Leave to Appeal No.490‑K of 1991 filed by the Director Land, K.M.C. and Civil' Petition for Leave to Appeal No.2‑K of 1992 tiled by the present appellants. Both were disposed of by a common order dated 2‑:3‑1992. As regards the appellants' above petition for leave to appeal, the following observations were made in the above order:‑‑ "

7. As regards the above second petition, it will suffice to observe that any observation made by the learned Judges of the High Court in the impugned judgment as to the status of respondents 1‑‑4 inter se between them and respondents 5 and 6 in the above second petition would not prejudice any of the parties in the suit pending before the learned Single Judge in the High Court and the above suit will be decided independently from any observation which might have been made in the impugned judgment, on the basis of the evidence which the parties may adduce. With the above observation, leave in the second appeal is also refused."

5. It seems that in view of the above observations of this Court, the appellants did not press their review petition before the High Court, with the result that only review petition filed by respondents Nos, 1 to 4 remained pending. It appears that while the above review petition was pending, Mr Justice Saceduzzaman Siddiqui was elevated to this Court. It generated controversy on the question, whether the above review petition was to be heard by two Judges or by one Judge, who recorded the above reasons and who was available. Eventually, the matter came up for consideration before a Division Bench in the form of the above civil miscellaneous applications, which were disposed of by the order under appeal in the above terms. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above questions.

6. In support of the above appeal, Mt.Z.U.Ahmed, learned counsel for the appellants, has vehemently contended that the learned Judges of tire Division Bench erred in holding that in spite of expiry of more than six months from the date of filing of the above review petition by respondents Nos.l to 4, the provisions of Order XLVII, Rule 5 continued to apply instead of holding that Rule 5 of the Rules and Orders was applicable. On the other hand, Mr. Khaliiur. Rehman, learned counsel for respondents Nos.l to 4 has submitted that since one of the learned Judges of the Division Bench who recorded the reasons was available, Order XLVIII, Rule 5, C.P,C. was applicable.

7. In order to appreciate the above contentions of the learned counsel for the parties, it may be pertinent to reproduce the above two provisions which are in issue and which read as follows:‑‑ "Rule

5. Order XLVII. Cue:

5. Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at 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 5 of the Rules and ,Orders:

5. In cases not provided for by Order XLVII, Rule 5 an application for a review of a decree or order shall be heard (a) if the decree or order, review of which is applied for, was passed by a Judge sitting alone, by a Bench of two or more Judges, (b) if the said decree or order was passed by a Bench of two or more Judges, by a Bench consisting of at least as many Judges as the Bench review of whose decree or order is applied for:" A perusal of the above Rule 5 of Order XLVII indicates that where the Judge or Judges who passed the decree or made the. order, continues or ‑continue attached to the Court and is not or are not precluded by absence or other cause for a period of six months next after the application for review, such Judge or Judges or any of them shall hear the review application and no other Judge or Judges of the Court. Whereas a plain reading of the above‑quoted Rule 5 of the Rules and Orders shows that it is applicable if the case is not covered by Order XLVII, Rule 5, C.P.C. It provides that an application for a review of a decree or order shall be heard‑‑ (a) if the decree or order, review of which is applied for, was passed by a Judge sitting alone, by a Bench of two or more Judges; (b) if the said decree or order was 'passed by a Bench of two or more . Judges, by a Bench consisting of at least as many Judges as the Bench review of whose decree or order is applied for.

8. Mr.Z.U.Ahmed in furtherance of his submission has referred to the following cases:‑‑ (i) Hussain Bakhsh v Settlement Commisioner Rawalpindi and others . PLD 1970 SC 1: in which this 'Court has held that the High Court apart from its power to correct errors apparent on the face of record in exercise of its Internet jurisdiction, has power under C.P.C, to review its own order made in exercise of writ jurisdiction. It has also been held that the right to file review is a substantive right and not mere. a matter of procedure and, therefore, it is not available unless specifically provided by statutes. The appeal filed against the judgment of the High Court was allowed and the case was remanded to the High Court for re‑hearing for the following reasons:‑‑ "As the High Court has been found to have power under clause (b) of section 114 of the Code of Civil Procedure to review an order made in its writ jurisdiction in a civil matter, the appeal succeeds. I would, therefore, allow this appeal, set aside the judgment and order ,of the High Court and declare that, apart from the High Court's power to correct errors apparent on the face of the record in the exercise of its inherent jurisdiction, it has power under the Code of Civil Procedure to review its own order made in writ jurisdiction in a civil matter. The High Court will now hear the application for review according to law. Having regard to the intricacy of the point of law involved, I would not make any order as to costs." (ii) Muhammad Yasin and others v Khan Muhammad and others PLD 1990 SC 1060: In the above case this Court, while declining a petition for leave to ' appeal, held that the review undertaken by the Supreme Court under Order XXVI, Rule 1, Supreme Court Rules, 1980, is not controlled by the provisions of Order XXVI, Rule 9 of the same. (iii) Muzaffar Ali v Muhammad Shaft PLD 1981 SC 94: in which it has been again held that a review is a substantive right and is always creation of a relevant statute and that the assumption that the review is a continuation of an' appeal was not correct. (iv) Naravanan and others v Rahman AIR 1953 Trav‑Co. 306: In the above case a Full Bench, while construing the provisions of Order XLVII, Rule 5, C.P.C., held that the expression "continues attached to the Court" does not mean mere retention of lien by a Judge‑as a Judge of the High Court but what is contemplated by the above expression is that when the Judge is available to perform his normal duties as a Judge. It was held that when one of the Judges constituting 'a Bench which had decided the revision petition was not attached to the Court when the review application was filed and the other two Judges who had ordered issuance of notice upon the above review also ceased to continue to attach to the Court, a Full Bench consisting of other three Judges was competent to hear the said review. On the other hand, Mr. Khalilur Rehnian has referred to the following cases: (i) Chhaiju Ram,v Neki and others (AIR 1922 Privy Council 1121; in which the facts were that an appeal arising out of pre‑emption suit had come up before a Division Bench comprising Scott Smith and Leslie Jones, JJ. of the Chief Court of Punjab, which was disposed of by them by holding that the plaintiffs were not suing for themselves alone but for themselves in conjunction with other persons and, therefore, their claim to pre‑emption was not maintainable. A review petition filed, which was heard by a Bench comprising Wilberforce, J. and Scott Smith, J. who was a party in the judgment: The matter came up before the Privy Council inter alia for consideration, whether the above Bench could hear the review petition with reference to the above provisions of Order XLVII, Rule 5, C.P.C. Their Lordships after quoting the provisions of Order XLVII, Rule 5, C.P.C. held as under:‑‑ "Their Lordships observe that Wilberforce, J. was not one of the Judges who passed the decree or made the order reviewed. They understand that Leslie Jones, J. was precluded by absence from sitting. But this circumstance makes no difference to what is prescribed by Rule V. It is clear that Wilberforce, J. was precluded by‑the language from hearing the application, and this in itself would be a fatal objection to the judgment in review. The Court of Review had to be composed of Scott‑Smith, J. alone, a circumstance not without importance for the larger considerations which follow." (ii) In re: Peeram Chernna Rcddi.and others (AIR 1942 Madras 23): In the above case a learned Single Judge of the Madras High Court has held that according to the invariable practice of the Madras High Court even in first appeal, the application for review is heard and decided only by the Judges who heard the. appeal and decided or when one of them is absent, by the other Judge sitting alone. Reliance was placed on the case of Maksud Mahi v. The Secretary of State for India‑in‑Council and another (9 Indian Cases 532 (Cal.)).

9. The judgments relied upon by Mr. Z.UAhmed do‑not support his above contention. They merely indicate that review is a substantive right which cannot be claimed unless it is provided for in the relevant statute. The High Court in exercise of its Constitutional jurisdiction can press into service the provisions of Order XLVII, Rule 5, C.P.C. and that if the Judges of a Bench who decided a case are not available, i.e. not available to perform their normal duties as Judges, for a period of six months next after the filing of review petition, though they may remain the Judges of the Court concerned, another Bench comprising Judges who were not party to the judgment, can hear and dispose of a review petition arising from the above judgment.

10. On the other hand, the judgments cited by Mr. Khalilur Rehman particularly the case of Chhajju Ram v. Neki and others (supra) decided by the Privy Council is on all fours applicable to the present case.

11. In the present case .the private respondents had filed the review petition under Order XLVII, Rule 5, C.P.C. as there is no constitutional provision empowering the High Court to review its own judgment, similar to that of Article 188 of the Constitution, which empowers the Supreme Court to review any judgment pronounced or any order made by it subject to the provisions of any Act and/or of the Supreme Court Rules. In this view of the matter, if none of two learned Judges who decided the above Constitution petition would have been available, in that case, Rule 5 of the Rules and Orders would have been attracted to. The language of above Rule 5 as pointed out hereinabove seems to be unambiguous and clear on the question that it is applicable only when Order XLVII, Rule 5, C.P.C. is not applicable to a review petition. In the case in hand the author Judge remained available in terms of Rule 5, Order XLVII, C.P.C. he was to hear the review petition filed by the private respondents as held by the Privy Council in the above case and not by two Judges under Rule 5 of the Rules and Orders.

12. The upshot of the above discussion is that the order under appeal is unexceptionable and, therefore, the above appeal has no merits. It is, accordingly, dismissed, but there will be no order as to costs. M.BA./S‑857/S Appeal dismissed.