Review application

2023 PLD 1 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

O. XLVI, Rr. 6 & 8Review applicationApplication for change of AdvocateScope

Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, requires the same Advocate, who appeared earlier to argue the case, to draw up the review application and appear in support of it before the Court for certain reasons

It is because a review petition is not equivalent to a petition for leave to appeal or an appeal where the case is argued for the first time

Scope of review application is limited to the grounds mentioned in Order XLVI, Rule 1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978

Advocate who had earlier argued the main case is perhaps the best person to evaluate whether the said grounds of review are attracted in the case; he being part of the hearing of the main case is fully aware of the proceedings that transpired in the Court leading to the judgment or order sought to be reviewed; he is the one who knows what was argued before the Court and what weighed with the Court in deciding the matter either way

It is also for the same reason that the review application is to be fixed before the same Bench that delivered the judgment or order sought to be reviewed, under R. 8 of O. XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978

It is not hard to understand that the same Advocate and the same Bench can best appreciate the grounds of review

It is true that the requirement of "sufficient ground" for granting the special leave is not expressly stated in R. 6, but this does not mean that the discretion of the Court to grant or decline the special leave is arbitrary or is mechanical on filing of an application in this regard by a petitioner

This discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case

Special leave to substitute a counsel in a review petition is to be granted only when appearance of the earlier counsel is not possible due to some unavoidable circumstances, such as the original counsel is dead or unable to appear before the Court due to some mental or physical disability but that too is subject to the permission of the Court

Practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances, by the parties as well as by the Advocates representing them is condemnable.

2017 MLD 22 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 17, 18 & 28-ACivil Procedure Code (V of 1908), S. 114 & O. XLVII, R. 7Law Reforms Ordinance (XII of 1972), S. 3Intra-court appealReview applicationScopeAmendment in decree by Executing CourtScopeCompensation against award was determined by Court and judgment/decree was passed in that regard against authorities

During pendency of execution application filed by landowners, authorities preferred objections on which Single Judge of High Court directed authorities to deposit decretal amount within 30 days and on failure to comply with direction, execution was allowed

Single Judge of High Court while deciding execution application recorded observations and authorities wanted to get said observations implemented

Validity

Even if such part of order whereby it was observed that decree-holder was entitled for compensation under S.28-A of Land Acquisition Act, 1894 was set aside, same would have no bearing on final outcome, as judgment and decree itself provided for payment of such compensation against which appeal preferred by authorities already stood dismissed and same had not been challenged any further

Observations were recorded by Single Judge of High Court as it was specifically pleaded on behalf of authorities that since S.28-A of Land Acquisition Act, 1894 stood omitted as if it was never on the statute book, therefore, additional compensation was paid

Authorities were to agitate merits of judgment and decree in further appeal which otherwise had attained finality and not before Executing Court through review application

Authorities tried to make an attempt to get modification of judgment and decree by raising such objections which were not permissible as Executing Court was bound by judgment and decree passed in the matter and such observations in order in question could not be challenged to seek further opportunity of having decree set aside

High Court declined to interfere in the matter as authorities did not assail appellate order any further, therefore same had attained finality and was not a case of pending proceedings

Intra-court appeal was dismissed in circumstances.

2014 SCMR 1609 SUPREME-COURT Judicial Precedent

S. 13Criminal Procedure Code (V of 1898), S. 497 & Sched. IIConstitution of Pakistan, Art. 188Review applicationRectification of bail granting order by Supreme CourtWhether S.13 of Pakistan Arms Ordinance, 1965, a non-bailable offence in the Province of Punjab

Supreme Court had granted bail to the accused by observing that the Province of Punjab had brought an amendment whereby the offence under S.13 of the Pakistan Arms Ordinance, 1965, had been made non-bailable

Held, no such amendment had been made as stated by the Law and Parliamentary Affairs Department, Government of Punjab

Supreme Court directed that Supreme Court's observations in the bail granting order regarding S.13 of the Pakistan Arms Ordinance, 1965, being non-bailable, was rectified to the extent that "no amendment had been made in S.13 of the Ordinance in the Province of Punjab to make the said offence non-bailable"

Application was disposed of accordingly with observation that present rectification did not affect the decision in appeal.

2014 YLR 2548 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S.114 & O.XLVII, R.1Review applicationScopeApplicant sought review of impugned judgment on account of certain mistakes in the narration of facts and lawValidity

Applicant had failed to show anything that the conclusion arrived by the Court was wrong, therefore in the absence of any material defect, review application was dismissed.

2014 YLR 1514 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

S. 18-BAzad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44Writ petitionScopeReview applicationAllotment of evacuee property as refugeePowers of Custodian of Evacuee PropertyScopeContention of petitioners was that allotment of evacuee property was secured fraudulentlyReview petition was dismissed by the Custodian of Evacuee PropertyValidityReview petition had been disposed of on technical grounds and not on merits

Custodian of Evacuee Property had powers to decide all points with regard to dispute of person and property to be evacuee or non-evacuee and to decide the character of an allottee as a refugee or local destitute and legal heirs of shaheed etc. and he was also vested with the power to set at naught the allotment and proprietary rights transfer order

High Court under its writ jurisdiction could not embark upon the scrutiny of facts or evidence

Limitation was to be reckoned from the date of knowledge where fraud was alleged

Point of limitation was an issue of fact which was to be proved by the parties and same was within the competence of Custodian of Evacuee Property

Custodian of Evacuee Property was bound to decide such fact after necessary inquiry by giving opportunity to the parties to lead their evidence but he had failed to do so

Impugned order was against the principles of substantial and natural justice

Impugned order had been passed without lawful authority which had no legal effect

Custodian of Evacuee Property had failed to exercise powers vested in him

Impugned order was set aside and case was remanded for decision afresh in accordance with law.

2012 MLD 1238 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

R. 43Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44-ACivil Procedure Code (V of 1908), O.XLVII, R.1Review applicationCompetenceProcedure

Review application was dismissed on the ground that same was filed without furnishing certificate of Advocate of the court, which was mandatory under provisions of R.43 of Azad Jammu and Kashmir High Court Procedure Rules, 1984

Validity

Application for review, would set-forth the grounds on which a review was sought, plainly and concisely

Application would be signed by a counsel and accompanied by a certificate signed by the Advocate in the form prescribed under R.43 of Azad Jammu and Kashmir High Court Procedure Rules, 1984

Embargo had been imposed under said R.43 that no such application would be entertained by the court without the said certificate

Mandatory requirement of filing a certificate by the Advocate along with the review application had to be fulfilled

If said certificate was not accompanied with the applications for review, the court would not entertain the application

Position in the present case had become different as the court had not only entertained the application, but the process was also issued; in pursuance of the process, the other party had entered its appearance, and contested the said review application and after hearing both the parties, impugned judgment was delivered

Once an application for review without the mandatory certificate had been entertained, it would be deemed that the requirement under R. 43 had been dispensed with by the court

High Court, in circumstances, after entertaining the review application, was not justified to dismiss the same on the ground that it was not competent

Court was supposed to look into the application at the filing of the same and if it was found that the requirement of provision had not been fulfilled in the true spirit the court should have taken notice of the same, but same had not been done

Impugned judgment of High Court was set aside and case was remitted back to the High Court with the direction to decide the review application on merits.

2012 YLR 1686 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss.114 & 12(2)Limitation Act (IX of 1908), Art. 162Review applicationLimitationOriginal civil jurisdiction of High CourtScopeApplicants sought review of order passed by High Court in application under S. 12(2), C.P.CValidity

Application under S. 12(2), C.P.C. could not have been moved before any other court, therefore, High Court for the purpose of setting aside order exercised its "original civil jurisdiction" and passed order dated 1-11-2006

Applicants moved review application for review of order dated 1-11-2006 and were therefore, under obligation to institute review application within a period of 20 days as prescribed in Art.162 of First Schedule of Limitation Act, 1908

Applicants instituted review application on 16-2-2007 for review of order dated 1-11-2006, which application was barred by time and liable to be dismissed

Review application was dis-missed in circumstances.