1975 PLP 16 (SCMR)

Date of hearing: 24th May 1974. HAMOODUR RAHMAN, C. J. ‑This is a petition for the review of a judgment of this Court in the case of Syed Alam Hussain and others v. Syeda Shamim Akhtar and another (C. A. No. 206 of 1969) announced on the 21st of December 1973. The only ground on which the review is sought, according to the certificate of the learned Senior Advocate, is that the point, on which the Court had decided the appeal against the petitioner, was not included in the ground on which leave was granted, nor was that point raised in the petition for special leave to appeal or in the concise statement. Hence, it is con tended, the Court was debarred from adverting to issues, the determination of which was foreclosed by the leave granting order. It appears that leave was granted in the present case on the 27th of lane 1966, only to consider "whether a Settlement Commissioner is not untitled, in revision to ignore an intermediate appeal that had been dis missed as time‑barred by an Additional Settlement Commissioner, and deal with the whole case by way of revision of the order of the Deputy Settlement Commissioner which had been appealed against." At the hearing of the appeal, this Court took the view that the High Court was right in holding that the Settlement Commissioner had not acted in accordance with the law as declared by this Court in revising the order of the Deputy Settlement Commissioner on merits, so far as it related to the transfer of the respective portions of the parties; but, then, the Court permitted the appellant to raise another question, namely, as to whether the High Court should have allowed the respondent to urge a point which had not been taken before the Settlement Commissioner, and retying on an earlier decision of this Court in the case of Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner (P L D 1964 S C 829) allowed the appeal, recalled the writ issued by the High Court and restored the order of the Settlement Commissioner. Learned counsel appearing in support of the review has contended that after this Court came to the conclusion that the question of law, for the consideration of which leave to appeal was granted, had been rightly decided by the High Court, it should not have gone on to consider any further question, according to its and the Privy Council's established practice. In support of this practice, learned counsel has referred us to a decision of the Privy Council in the case of John E. Brownlee v. Vivian Mac‑Millan (AIR 1940 P C 219) where the Privy Council refused to allow counsel to argue points on which leave to appeal had not been granted, and a decision of this Court in the case of Ashfaq‑ur‑Rehman Khan v. Ch. Muhammad Afzal (P L D 1971 S C 766) where too this Court refused leave to the learned counsel to agitate points on which leave to appeal had not been granted. It is no doubt true that the general practice of this Court following the Privy Council practice, has been as suggested by the learned counsel; but this is not an inflexible rule, and there may well be cases in which this Court, in the interest of justice, may be constrained to depart from this practice, although such cases will, no doubt, be extremely rare. This Court has undoubtedly the power, under the Constitution itself, to do complete justice and, therefore, it has never tied itself down in such a manner as to deprive itself of this power. Thus, in the case of S. Sibtain Fazli v. Star Film Distributors (P L D 1964 S C 337) in which learned counsel Mr. A. K. Brohi himself appeared, the majority of the Court, allowed a law point to be argued even though it was neither raised in the petition for special leave to appeal nor in the additional grounds subsequently filed or in the concise statement. Again, in the case of Pakistan v. Wallullah Sufyani (P L D 1965 S C 310) certain objections taken in a petition of cross‑objection filed without the leave of the Court were considered at the argument stage in the appeal, by treating the cross -objection as a petition for special leave to appeal and condoning the delay in the filing thereof. Next in the case of Abdul Majid Khan v. Chief Settlement and Rehabilitation Commissioner (P L D 1968 S C 154), the Court allowed a question of law to be raised, even though it was not a point on which leave had been granted. The relevant passage from the judgment of the Court reads:‑

"The only question, therefore, that now arises for consideration is as to whether the Settlement Authorities were right in treating each room comprised in premises No. W/432 as an independent commercial unit and since this is the real question now in issue we have allowed learned counsel appearing in support of the appeal of Sh. Muhammad Hassan to raise this question even though this was not a point on which leave was granted." It would thus appear that it is not correct that this Court has never departed from this rule of practice. It cannot, therefore, be maintained that any and every departure from this rule no doubt a salutory rule‑would result in the exercise of a jurisdiction riot possessed by the Court and thereby constitute an error apparent on the face of the record. The jurisdiction is there; but whether, and in what circumstances, the Court will exercise it, is an entirely different matter. The rule is at best a rule of practice only developed as a result of the practice of the Judicial Committee and, therefore, like all rules of practice it can legitimately be departed from if the interests of justice so demand. The Judicial Committee itself adopted this principle in the case of Bibhabati v. Ramendra Narayan (AIR 1947 P C 19) and departed from an equally firmly established rule that it will not in civil matters interfore with a concurrent finding of fact. This Court also did the same thing in the case of Federation of Pakistan v. Ali Ihsan (P L D 1967 S C 249). This brings me to the next contention advanced by the learned counsel, namely, that this Court misapplied the principles of Ghulam‑Mohi‑ud‑Din's case in the present instance, because, the respondent, it could not be said, was aware of the said decision or had deliberately concealed it from the Settlement Authorities or the High Court. To penalise him for something which he was not, in fact, aware of would be against the principles laid down in that case. The said decision had been consistently interpreted in a number of sub sequent decisions as merely laying down the rule that a discretionary relief should not he granted to a party who knowingly stands by and allows an authority to usurp a jurisdiction which it did not possess and which the person seeking such relief could have prevented. These decisions are in the cases of:‑

Khair‑ud‑Din v. Abdul Hamid (P L D 1966 Lah. 362), Mohammad Sharif v. Sh. Mohammad Rafique (P L D 1968 Lah. 263), Karam Din v. The Settlement and Rehabilitation Commissioner (P L D 1970 Lah. 766) and Abdus Sattar Khan Chowdhury v. Chief Election Commissioner of Pakistan (P L D 1968 Dacca 293). In the present case since the petitioner was the respondent before the Settlement Commissioner he could, not in any event, be considered to have stood by and knowingly allowed the authority concerned to exercise a jurisdiction which he did not possess or waive his right to challenge the order so made by the authority (vide Muhammad Afzal v. Board of Revenue (P L D 1967 S C 314). This may be so, but this can hardly furnish a ground for review. Putting it bluntly, it amounts to saying that this Court had erred in applying the principles of Ghulam Mohl‑ud‑Din's case in the facts and circumstances of the present appeal. This may have been a perfectly good ground for an appeal, if any appeal lay; but can it be a valid ground review? We think not. Failure to notice a relevant decision binding on the Court may be a ground for review but the misapplication of a decision cannot. In the circumstances, we do not consider it necessary to deal with the decisions cited by learned counsel, interpreting the decision in Ghulam Mohi‑ud‑Din's cases, as we are satisfied that since the first ground fails there is no other valid ground for review in the present case. This petition for review is, accordingly, dismissed. Petition dismissed.