1990 PLP 1280 (MLD)

‑‑‑‑S.42‑‑‑Azad Jammu and Kashmir Supreme Court Rules, 1956, O.XI, R.1‑‑ Supreme Court Rules not being contrary to any provision of Constitution, more or less have same force as a constitutional provision has‑‑‑Argument that judgment recorded by Single Judge of Supreme Court could not be considered judgment of Supreme Court was repelled. Muhammad Siddique Noor‑ul‑Amin and Ali Muhammad for Petitioners. Imdad Ali and Muhammad Taj for Respondent. Relevant facts giving rise to this review against the judgment of this Court passed on 1‑4‑1989 are as under: Muhammad Akram and others, petitioners herein, purchased the suit land situate in the area of village Bhalote Tehsil Mirpur from one Abdul Majid by way of sale‑deed executed and registered on January 7, 1984. Mst. Tazeem Akhter, non‑petitioner herein, wife of vendor sought to pre‑empt the sale. Muhammad Akram and others vendee-petitioners in their written statement repudiated the claim put forth by Mst. Tazeem Akhter. Amongst other grounds, they sought rejection of the suit on the plea that sale in their favour is exempted from the mischief of pre‑emption by virtue of notification issued by the Government in exercise of its powers under section 6(2) of the Jammu and Kashmir Right of Prior Purchase Act.

2. The learned Sub‑Judge as well as the learned District Judge on first appeal overruled the aforesaid objection of the petitioners as in their view they failed to prove the relevant issues satisfactorily. Resultantly Mst. Tazeem Akhter's suit was decreed in her favour. 1n second appeal, however, the learned Single Judge in the High Court vide judgment dated 11‑4‑1987, found that the suit land falls within the municipal limits of Mirpur town and is not hit by the mischief of pre‑emption law. This judgment of the High Court was upset by me sitting alone on 1‑4‑1989. Resultantly the judgment of the District Judge dated 30‑11‑1986 and that of the trial Judge was restored. It may be observed that under Order XI, Rule 1 proviso (ii) of the Supreme Court Rules, I heard the appeal alone as none of the sitting Judges were competent to associate themselves as member of the Court.

3. Through this review petition the petitioners seek reconsideration of the aforesaid judgment of the Supreme Court mainly on the ground that a Single Judge cannot be considered to be the Supreme Court within the meaning of the definition of the Court incorporated in Azad Jammu and Kashmir Interim Constitution Act, 1974. On the above premises, he contended that the impugned judgment is no judgment in the eye of law and needs to be recalled by way of review. No other point was argued.

4. I have considered the arguments advanced at the Bar and I am of the considered view that it has no substance to be accepted for regular hearing. In the instant case the point now agitated has neither been taken in the appeal nor I find any clear mention of it in the review petition. In the circumstances the learned counsel cannot be allowed to have a review of the impugned judgment on the basis of a point not agitated in the appeal. `Mehr Khan v. Mst. Razia Begum etc.' 1978 S C M R 294. `Rizwan Co‑operative Society Ltd. v. Custodian of Evacuee Property and others' 1978 S C M R 449 and `Wahajuddin and another v. Razia Begum etc.' 1979 S C M R 241 contain identical statement of law. It has been observed in these cases that if a point has not been taken during the course of arguments in appeal the same cannot be allowed to be agitated and argued in support of the review petition. Since the above proposition is settled I see no reason to have a different view.

5. Mr. Noor‑ul‑Amin, the learned counsel for the petitioners, was unable to cite any case‑law to contradict the aforesaid proposition of law. Even otherwise since the Supreme Court Rules are made under section 42‑A of the Constitution Act and since these rules are not contrary to any provision of the Constitution, g they have more or less the same force as a constitutional provision has. Therefore, to me the argument that the judgment recorded by a Single Judge cannot be considered to be a judgment of the Supreme Court has no substance and stands repelled. For the foregoing reasons, I disallow the review petition with costs. H.B.T./267/S.C.A. Petition disallowed.