1997 PLP 487 (CLC)

M. Tabassum Aftab Alvi, Advocate for Petitioner. Date of hearing: 13th October, 1996. BASHARAT AHMAD SHAIKH, J.‑‑‑This is a review petition which has been filed for recalling judgment of this Court in Civil Appeal No.30 of 1995 titled Muhammad Sharif and others v. Kh. Ghulam Qadir and others announced on 17th of February, 1996. In a nutshell the facts are that respondents Muhammad Sharif and others filed a suit in the Court of Sub‑Judge on 1st of April, 1993 seeking a declaration about allotment of evacuee land which stood in the name of petitioners, Kh. Ghulam Qadir and . Kh. Manzoor Ahmad. The learned Sub‑Judge rejected the plaint on the ground that it did not disclose any cause of action and that the jurisdiction of the Civil Court was barred. The present respondents filed appeal before the District Judge which was accompanied by an application for temporary injunction. An ad interim injunction was granted but it was cancelled after hearing the other side. The petitioners took a revision to the High Court. The High Court not only upheld the order passed by the District Judge but also dismissed the appeal pending before the District Judge on the ground that the matter stood concluded by a judgment of this Court. Petitioners filed appeal before this Court which was accepted by a judgment which is now sought to be reviewed. This Court upheld the order of the High Court in so far as it related to the dispute about temporary injunction but set aside that part of the aforesaid judgment whereby the appeal pending before the Distract Judge against the rejection of the plaint was dismissed. It was held that the learned District Judge was still seized of the appeal whether the plaint was rightly rejected by the trial Court or not and it could not be dismissed by the High Court. The learned counsel for the petitioner, Mr. M. Tabassum Aftab Alvi, has raised two grounds in support of the petition, namely:‑‑ (i) The dismissal by the High Court of the appeal pending before the District Judge was in accordance with law laid down by this Court in Zaighum Saleem Khan, v. Muhammad Saleem Khan and another (1992 SCR 344); and (ii) the appeal filed in this Court on behalf of respondents Muhammad Sharif and others was liable to be rejected on the ground that it had been presented by an attorney which is not allowed by the Azad Jammu and Kashmir Supreme Court Rules, this point was urged during the arguments in the case but was left undecided. We have gone through the judgment in Zaighum Saleem Khan's case. The facts were that a suit was sub judice before the trial Court when the matter came up before the High Court in connection with interim relief. Before the High Court some documents were placed on record to show that the dispute raised in the suit stood already concluded by a previous judgment. Thereupon a notice was given to the plaintiff asking him to show cause why his suit should not be dismissed being barred by res judicata. Consequently arguments were heard and the High Court came to the conclusion that the suit was hit by the principle of res judicata and was also vexatious and frivolous. Consequently the High Court ordered the dismissal of the suit pending in the Court of Sub‑Judge. This Court dismissed an appeal filed by leave of the Court by Zaighum Saleem Khan by agreeing with the view of the learned Judge in the High Court that the suit was barred by res judicata and had been filed to harass Muhammad Saleem Khan. It follows that in Zaighum Saleem Khan's case power of the High Court to dismiss a suit on the ground that it was not maintainable was available to the High Court when the suit was pending in the trial Court. However, the distinguishing feature is that the High Court issued a show‑cause notice to plaintiff in the case and passed an order for dismissal of the suit only after hearing the plaintiff. In the present case no such notice was given by the High Court. The text of the judgment of the High Court dated 31st of June, 1995 does not show that any notice was given to the parties to argue the point before dismissing the appeal pending with the Court of District Judge. Arguments advanced before the High Court by the parties are duly noted in the judgment of the High Court which shows that the plea was raised by Kh. Ghulam Qadir in his arguments that the allotment in his favour stood finally confirmed by the Supreme Court, but the other party was not informed in advance that this point will be decided by the High Court. In Zaighum Saleem Khan's case the principle of audit alteram partem was followed but in the present case this rule was violated and the plaintiffs were condemned unheard. Thus it cannot be said that the law laid down in Zaighum Saleem's case has not been followed in the judgment sought to be reviewed. The other point raised in support of the review petition is that a party cannot file a petition for leave to appeal through an attorney because Code of Civil Procedure, broadly speaking, is not applicable to proceedings before this Court. We find no merit in this argument also. It is rightly contended by the petitioners that Code of Civil Procedure is not applicable but law of the land gives to a citizen the right to appoint an agent to act on his behalf. This power is available under section 182 of the Contract Act, which is as follows:‑‑ "

182. An agent' is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done, or who is so representative, is called the 'principal'." An attorney falls within the definition of an agent within the meaning of the above‑quoted section. According to one of the legal maxims "He who does an act through another is deemed in law to do it himself". [Qui per alium facit per seipsum facere videtur]. The Supreme Court Rules do not prohibit the appointment of an attorney which means that this right, which is available under the law of the land, remains unaffected. In view of the foregoing we find no merit in this review petition and order its dismissal. A.A./157/SC (AJ&K) Petition dismissed.