P L D 2017 Balochistan 65
Before Muhammad Kamran Khan Mulakhail and Naeem Akhtar Afghan, JJ
Haji MUHAMMAD NAEEM ---Petitioner
Versus
SIRAJ -UD-DIN and 6 others ---Respondents
Review Application No.2 of 2015 in C.P. No.74 of 2015, decided on 25th April, 2016.
(a) Civil Procedure Code (V of 1908) ---
----O. XLVII, R.1 & S.114---Review ---Object and scope--- Applicant had failed to point out any
apparent error or mistake in the order under review ---Object of power of review was to enable
correction of error alone a nd nothing else ---Review could not be equated with an appeal or for
that matter it could not be made basis for rehearing of a case ---Power of Court to review its own
judgment/order was only discretionary ---Reason for conferring discretionary power of revie w on
a court was to prevent injustice being done ---Case could not be re -opened on the pretext of
review.
Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Fatima v. Shan
Muhammad PLD 1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 SC 110
rel.
(b) Constitution of Pakistan ---
----Arts. 199 & 203 ---Constitutional jurisdiction of High Court---Scope.
(c) Constitution of Pakistan ---
----Arts. 199 & 203 ---Certiorari, writ of ---Scope.
(d) Constitution of Pakistan ---
----Art. 199---Constitutional jurisdiction of High Court ---Scope ---Vacation Judge (during
vacations) while sitting as a single member Bench could hear the cases pertaining to Division
Bench at Katcha Peshi stage or for admission except otherwise provided by any special statute---
Vacation Judge while hearing the Division Bench matters had to decide as to whether a case for
admission was made out or not and he could also grant an interim relief but if no case for
admission was made out then he could also dismiss the petition in limine.
General Manager, Pearl Continental Hotel, The Mall Lahore/Rawalpindi v. Farhat Iqbal
PLD 2003 SC 952 and Shah Jahan v. Amjad Ali, Hawaldar 2000 SCMR 88 distinguished.
(e) Constitution of Pakistan ---
----Arts. 199 & 203---Certiorari, writ of ---Scope ---Hi gh Court while issuing a writ of certiorari
would act in exercise of its supervisory jurisdiction but not under its appellate or revisional
jurisdiction.
(f) Constitution of Pakistan ---
----Arts. 199 & 203---Certiorari, writ of ---Principles to be consider ed while issuing writ of
certiorari.
The principles for issuing a writ of certiorari in exercise of supervisory jurisdiction can be
summarized in the following manner:
(i) Any order passed by the courts subordinate to the High Court, against which remedy
of appeal or revision has not been provided;
(ii) A writ of certiorari can be issued for correcting gross error of jurisdiction when
subordinate judicia or quasi -judicial forum has acted without jurisdiction, by wrongly
assuming the jurisdiction or in exc ess of its jurisdiction, or acted in clear disregard of law
or rules of procedure and where there is no procedure specified, has acted in violation of
principles of natural justice, which ultimately occasioned the failure of justice;
(iii) When any judgmen t/order of the subordinate court has miserably failed to follow the
directions of law or the rules of procedure framed thereunder.
(iv) A writ of certiorari can also be issued when the Court or Tribunal act illegally or in
violation of the principles of na tural justice. Failure on the part of statutory functionay or
a Court to make a visible effect with diligent application of mind to adjective assertion or
to strive in search of truth for dispensing justice, the same tantamount to failure to
exercise juris diction.
Dilawar Jan v. Gul Rehman PLD 2001 SC 149; Muhammad Lehrasab Khan v. Mst.
Aqeel -un-Nisa 2001 SCMR 338 and Rahim Shah v. The Chief Election Commissioner of
Pakistan PLD 1973 SC 24 rel.
(g) Jurisdiciton -
----Court which had jurisdiction over the s ubject matter had jurisdiction to decide wrong as well
as right.
Khushnood Ahmed for Applicant.
Nemo for Respondents.
Date of hearing: 16th December, 2015.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --This application has been filed
with the following pr ayer:
It is, therefore, prayed that the order dated 27.02.2015 passed by this Hon'ble Court may
kindly be recalled and in view of the above noted grounds the petition may kindly be
heard on merits according to law and the impugned order in respect of order dated
31.07.2013 passed by Settlement Officer, Quetta Region, Quetta be restored, in the
interest of justice, equity and fairplay."
2. This court, vide order dated 27.02.2015 passed in Constitutional Petition No.74/2015,
dismissed the petition filed by th e applicant in limine with the following observations:
"5 .53. Suit for declaratory decrees by persons aggrieved by an entry in a record. If any
person considers himself aggrieved by an entry in a 'Record -of-Rights' or in a periodical
record as to any righ t of which he is in possession, he may institute a suit for a
declaration of his right under Chapter VI of the Specific Relief Act 1877 (Act I of 1877).
6. In view of provision supra, I am, of the considered view that the disputed question of
fact regardin g title and inheritance cannot be decided by the revenue officer/revenue
court by way of mutation proceedings which are summary in nature, in such like cases
the parties ought to have approached the civil courts, in the instant case the perversity of
approach is reflected by the conduct, because the revenue proceeding was initiated
regarding a dispute in respect of inheritance coupled with the validity of mutation entries.
The order passed by the Settlement Officer is not in accordance with the mandatory
provision of Section 53 of the Land Revenue Act, as well as, the law laid down by the
superior courts. I am dismayed that the Settlement Officer, the Additional Commissioner,
Quetta Division, Quetta and the Member Board of Revenue have not appreciated this
aspect of the matter. Despite the fact that the provision supra in clear terms states that the
dispute regarding entry in the record of rights or in periodical record as to any right have
to be taken to the court of civil jurisdiction. The revenue authoriti es had no authority to
correct the longstanding entries in the revenue record in summary manner.
Besides the above, the section 45 of the Land Revenue Act, 1967 provides that the
variation in a periodical record could be made with respect to undisputed acquisition of
interest in terms of section 43(a) of the Act, on the basis of facts proved or admitted.
Likewise, such corrections were permissible with the consent of all the parties or which
are supported by a decree or order binding on parties and not othe rwise. All this brings
me to hold that no disputed entry in a record- of-rights or periodical record could be
altered, either on ground of mistake or a fraud, except on basis of obvious clerical error or
patent facts, requiring no elaborate inquiry for thei r establishment, thus, the disputed
entries having been incorporated in the revenue record could only be corrected through a
decree of the court and not by the order of any of the official in the hierarchy of revenue
authorities, particularly after lapse o f more than five decades. For rendering this view I
have been supported by the judgments in case of Waris Khan v. Col. Humayun Shah
(PLD 1994 SC 336), Rasta Mal Khan v. Nabi Sarwar Khan (1996 SCMR 78) and Nemat
Ali v. Malik Habib Ullah (2004 SCMR 604).
7. The effect of Section 53 was not considered by the Member Board of Revenue or for
that matter by the lower forums, though the forums below have noted the contentions of
the parties but did not give findings and decided the matter themselves, therefore, the
order of both the forums below as well as the order of the Member Board of Revenue are
not sustainable in the eyes of law, as the impugned orders have been passed in utter
violation of the mandatory provision of the Land Revenue Act. The matter in hand is not
merely a question of mutation, but it directly relates to the title of the parties and validity
of mutation entries. Admittedly, the orders passed by the lower forums have no effect
whatsoever, in view of the Section 53 of the Land Revenue Act.
Thus, in view of above discussion and the dictum laid down by the Hon'ble apex Court, I
have no other option but to direct that the orders dated 31.07.2013 and 06.02.2014 passed
by the Settlement Officer, Quetta Division, the order dated 26.09.2014 passed by the
Additional Commissioner, Quetta Division, Quetta and the order dated 19.01.2015 passed
by the Member -II, Board of Revenue, Quetta are hereby set aside. Consequently, the
proceedings pending before the Settlement Officer are also quashed. However, the
petitioner may approach the Civil Court for redressal of his grievance by means of filing
a Declaratory Suit before the civil court as envisaged under Section 53 of the Land
Revenue Act, 1967.
Resultantly, this petition is dismissed in limine being devoid of merits."
3. Mr. Khushnood Ahmed, Advocate Supreme Court after reiterating the facts as pleaded in
the main petition as well as in the instant application assailed the order passed by this court and
mainly sought review of the same on two folds. Firstly, on the ground that this court in its
constitutional jurisdiction could not substitute it's own findings or for that matter could not set
aside the orders of the subordinate courts/tribunals, particularly those orders which were not
assailed in the Constitutional Petition and secondly, that the constitutional petition cannot be
decided by a single member bench/vacation judge of the High Court. In support of his contention
he relied upon the judgments rendered in cases of General Manager, Pearl Continental Hote l,
The Mall Lahore/Rawalpindi v. Farhat Iqbal (PLD 2003 SC 952) and Shah Jahan v Amjad Ali,
Hawaldar (2000 SCMR 88).
4. We have heard the learned counsel for the applicant at length and have gone through the
relevant provisions of law. Since the instant application has been filed seeking review of the
order passed in Constitutional Petition bearing No.74 of 2015, therefore, iteration of the facts
therein would be mere waste of precious time. However, while deciding a review application the
court only has to adjudicate whether the application fits within the four corners of review
jurisdiction of this court.
5. It was mainly contended by the learned counsel for the applicant that a single member
bench of the High Court/vacation judge could not finally adjudic ate the Constitutional Petition,
however he has failed to substantiate his contention with any citation or precedent of the Hon'ble
Supreme Court, rather he was persisting that since in the Balochistan High Court, ordinarily the
Constitutional Petitions ar e being heard by the Division Bench, therefore, in view of previous
practice it was inappropriate for a single member bench of this court to finally decide the same.
6. The appeals/revisions arising out of special statute, which clearly contemplates that the
appeal/revision shall be heard by a Division Bench, cannot be finally decided during vacations or
in ordinary course by a judge sitting singly.
Therefore it is instructive to mention the cases in seriatim, which shall necessarily be
heard by two Member bench (DB) of the High Court,
(i) An appeal or reference in a case in which the sentence of death has been passed.
(ii) In a case in which notice has been issued to the person sentenced to imprisonment
or imprisonment for life requiring him to show cause as to why the sentence should not
be altered to death.
(iii) An appeal by the Provincial Government under Section 417(1) Cr.P.C.
(iv) A complainant filed under Section 417 (2) Cr.P.C. after grant of leave by a single
judge.
(v) An appeal by the aggri eved person under Section 417(2)(a) Cr.P.C. from the order
of acquittal of a charge punishable with death or imprisonment for life.
(vi) An appeal arising out of judgment/order passed by a Special Judge under the
Control of Narcotic Substances Act, 1997.
(vii) An appeal arising out of judgment/order passed by a Special Judge under the
Anti-Terrorism Act, 1997.
(viii) An appeal against the judgment/order passed under the Representation of the
Peoples Act, 1976.
(ix) An appeal against the - judgment/order pass ed under the Recovery of Finances
Ordinance, 2001.
(x) An appeal against the judgment/order passed under the National Accountability
Ordinance, 1999.
(xi) A reference under the Customs Act, 1969 and,
(xii) An appeal under the Land Acquisition Act, 1894 if the jurisdictional value involved
in the appeal exceeds that of the District Court prescribed by the Civil Courts Ordinance,
1962, and any cross -objection to decree.
(xiii) A Regular First Appeal from the decree of a sub -ordinate court, jurisdictional value
of which exceeds from that of the District Court prescribed by the Civil Courts
Ordinance, 1962, and any cross -objection to decree.
7. The learned counsel is well aware that Constitutional Petition bearing No.74 of 2015 was
filed during winter vacations when the vacation judge (single member bench) of this court hears
all the cases relating to Single Bench (SB) and Division Bench (DB). During vacations a
vacation judge while sitting as a single member bench can hear the cases pertaining to Division
Bench at Katcha Peshi stage or for admission, therefore, while hearing the DB matters the
vacation judge sitting singly has to decide as to whether a case for admission is made out or not
and he can also grant an interim relief but, if no case for admission is m ade out, he can also
dismiss the petition in limine.
Neither the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") nor
the High Court Rules and Orders impose any embargo on the vacation judge of the High Court to
hear the DB matters while sitting as a single member bench, except otherwise provided by any
special statute, which envisages the cases to be head by a Division Bench. Therefore, the
contention of the learned counsel to this extent is without any substance and is not worth
consideration being misconceived.
8. With regard to the contention of the learned counsel for the applicant that an order, which
was not assailed in the constitutional petition could not be set aside by this Court, Article
199(1)(a)(ii) and Article 203 of the Constitution being relevant are reproduced herein below:
"199 Jurisdiction of High Court....(1)...(a)
(ii). declaring that any act done or proceeding taken within the territorial jurisdiction' of
the court by a person performing functions in connection with the affairs of the
Federation, a Province or a local authority has been done or taken without lawful
authority and is of no legal effect; or
203. High Court to superintend subordinate Courts.
Each High Court shall supervise and control all courts s ubordinate to it."
9. When the various precedents of the Hon'ble Supreme Court are critically analyzed, it can
safely be concluded that the High Court issuing a writ of certiorari acts in exercise of its
supervisory jurisdiction as envisaged under Article 203 of the Constitution but not under its
appellate or revisional jurisdiction as provided by any other law or special statute. This seems to
have been based on the principle that a court which has jurisdiction over the subject matter has
jurisdiction to d ecide wrong as well as right.
Therefore the principles for issuing a writ of certiorari in exercise of supervisory
jurisdiction can be summarized in the following manner:
(i) Any order passed by the courts subordinate to the High Court, against which
remedy of appeal or revision has not been provided;
(ii) A writ of certiorari can be issued for correcting gross error of jurisdiction when
subordinate judicial or quasi -judicial forum has acted without jurisdiction, by wrongly
assuming the jurisdiction or in excess of its jurisdiction, or acted in clear disrega rd of law
or rules of procedure and where there is no procedure specified, has acted in violation of
principles of natural justice, which ultimately occasioned the failure of justice;
(iii) When any judgment/order of the subordinate court has miserably fai led to follow
the direction of law or the rules of procedure framed thereunder.
(iv) A writ of certiorari can also be issued when the Court or Tribunal acts illegally or
in violation of the principles of natural justice. Failure on the part of statutory functionary
or a Court to make a visible effect with diligent application of mind to adjective assertion
or to strive in search of truth for dispensing justice, the same tantamount to failure to
exercise jurisdiction.
Reference is made to the case of Dilawar Jan v. Gul Rehman (PLD 2001 SC 149).
The High Court can interfere on the aforesaid occasions. For rendering this view, we
have been supported by the dictum laid down by the Hon'ble apex Court in the case of
Muhammad Lehrasab Khan v. Mst. Aqeel -un-Nisa ( 2001 SCMR 338) and it would be instructive
to reproduce the relevant passage therefrom, which runs as follows:
In view of the above pronouncements, the High Court can justifiably exercise its
Constitutional jurisdiction which is supervisory as well in aid and to sub- serve the cause
of justice and to correct the wrong wherever it finds to have been committed being
contrary to evidence and the law on the subject.
5. Another aspect of the case is that the petitioner has all along been urging right from the
Court of Rent Controller to that of the learned High Court and now, in this Court, that he
was an exclusive owner of the land in dispute under customs, thus, he was the landlord of
Mehboob Ahmad Shah, while respondent No.1 had no right of inheritance, therefore, she
being not an owner could not claim to be the landlady of Mehboob Ahmad Shah. The
objection that the High Court could not interfere with such matter, has no substance as
the High Court had no option but to take into consideration all the material pl aced before
it by the parties and had to adjudge the case on its proper appreciation and application of
law on the subject."
In the case of Rahim Shah v. The Chief Election Commissioner of Pakistan (PLD 1973
SC 24) the proposition has been resolved in the following manner:
"The scope of interference in the High Court is, therefore, limited to the inquiry whether
the tribunal has in doing the act or undertaking the proceedings acted in accordance with
law. If the answer be in the affirmative the High Court will stay its hands and will not
substitute its own findings for the findings recorded by the tribunal. Cases of no evidence,
bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done
without lawful authority and vitiate the act done or proceedings undertaken by the
Tribunal on this ground. Where the High Court is of opinion that there is no evidence
proper to be considered by the inferior tribunal in support of some point material to the
conviction or order, certiorari will be granted"
Learned counsel for the applicant has relied upon the judgments rendered by the Hon'ble
apex Court in Shah Jahan v. Amjad AIi, Hawaldar (2000 SCMR 88) AND General Manager,
Pearl Continental Hotel. The Mall Lahore/Rawalpindi v. Farhat Iqba l (PLD 2003 SC 952). In
both the judgments it has been observed by the Hon'ble Supreme Court that "High Court while
exercising its constitutional jurisdiction, has to see whether the judgment/order impugned in the
constitutional petition is with or without jurisdiction and if it is found to be without jurisdiction
only then it can interfere with it". Therefore, the referred to citations are also not providing any
assistance to the applicant's case.
10. There is no cavil with the proposition that High Court in its constitutional jurisdiction
would not undertake to reappraise the evidence to disturb the findings of facts but it would
certainly interfere, if such findings are found to be based upon non- reading and misreading of
evidence, erroneous assumption of facts, misapplication of law, excess or abuse of jurisdiction
and arbitrary exercise of powers. In appropriate cases of special jurisdiction, where the judicial
or quasi -judicial forum passes any order on the ground not supported by material on record, the
High Court can interfere with it by issuing a writ of certiorari to correct the wrong committed by
the forum below, therefore, where the justice demands, an exception can be taken thereto and
besides Article 199 of the Constitution, High Court can invoke its supervisory jurisdiction under
Article 203 of the Constitution, to correct the orders, when the same are perverse, fraudulent,
erroneous and have been passed in express violation of law. Thus, a writ of certiorari lies in all
cases where there is a du ty to act judicially or where there is a judicial act or order or when the
proceedings are judicial or quasi -judicial. In other words when the word judicial is involved in
the proceedings.
11. In the instant case the record of rights and mutation entries pertaining to the year 1960
were reversed by the Settlement Officer on 31.07.2013 on the pretext of correction of the record.
The private respondents being aggrieved of said entries assailed the order of the settlement
officer before the Additional Commissi oner, who after setting aside the order remanded the case
to the settlement officer for decision afresh. The applicant being aggrieved of the remand order
passed by the Additional Commissioner filed a revision petition before the Member Board of
Revenue, w ho vide order dated 19.01.2015 dismissed the revision petition and upheld the
remand order of the Additional Commissioner.
Though, the Section 43 of the Land Revenue Act 1967 ("the Act") provides the procedure
for correction in the record of rights but it s Section 45 imposes the restriction on variation of
entries in the record, when such entries are related to disputed question of interest under Section
43 of the Act, therefore, Section 53 of the Act provides that if any person "considers himself
aggrieve d by the entry in record of rights by any periodic record, he may institute a suit for
declaration of his right under Chapter VI of the Specific Relief Act, 1877". Therefore, in view of
the provisions supra, when this court reached the conclusion that property changes in the record
of rights are disputed and settlement officer was not empowered to change the long standing
entries carried out in the year 1960, the orders, which were assailed before this court in subject
constitutional petition were set aside along with initial order dated 31.07.2013 being without
jurisdiction.
12. While adverting to the scope of review jurisdiction of this court, by virtue of section 117,
C.P.C. the provisions of the Code of Civil Procedure, 1908 ("C.P.C.") are made applicabl e to the
High Court. The power and procedure of review are governed by section 114 and Order XLVII
of the C.P.C. Rule 1 of Order XLVII provides the scope of review jurisdiction. An application
seeking review of the earlier order passed by the court can onl y be entertained when applicant
establishes that "on discovery of new and important matter or evidence, which after the exercise
of due diligence was not within his knowledge, or could not be produced, on account of some
apparent error or mistake, or for a ny other sufficient reasons, may apply to the court which
passed the order". Thus, the review is only permissible and maintainable provided the conditions
stipulated in Order XLVII are fulfilled and not otherwise.
The facts now being agitated by the appli cant and the documents being relied upon were
available on record at the time when the order in question was passed. The applicant has
miserably failed to point out any apparent error or mistake in the order in question. It is well
settled that the main ai m of power to review is, to enable the correction of error alone and
nothing else. The review cannot be equated with an appeal, or for that matter it cannot be made
basis for rehearing of a case. The power of the court to review its own judgment/order is only
discretionary and the reason for conferring discretionary power of review on a court is to prevent
injustice being done. A review in no case should amount to rehearing the case on merits and case
cannot be re -opened on the pretext of review. Reference in this regard is made to the case of
Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1; Fatima v. Shah Muhammad PLD
1975 SC 318 and Faqir Muhammad Khan v. Akbar Shah PLD 1973 SC 110.
Thus, for the above reasons application is dismissed accordingly.
ZC/49/Bal. Revision Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.