P L D 2021 Balochistan 9
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
Messrs ABASEEN ORE through Azmat Khan ---Petitioner
Versus
DIRECTOR GENERAL (LICENSING AUTHORITY) MINES AND MINERALS,
BALOCHISTAN and another ---Respondents
Review Application No. 6 of 2020 in C.P. No. 46 of 2020, decided on 5th March, 2020.
(a) Civil Procedure Code (V of 1908) ---
----S. 114---Constitution of Pakistan, Art. 199 ---Constitutional petition ---Review ---Scope ---
Petitioner sought review of order passed by H igh Court whereby his constitutional petition
was dismissed ---Validity ---Impugned order did not suffer from any error or mistake
warranting review ---All points raised by the counsel for the petitioner were
addressed/answered by the High Court after going t hrough entire record with care and
caution ---No case for review was made out ---Review petition was dismissed.
Daewoo Corporation v. Zila Council, Jhang and 2 others 2004 SCMR 1213; Messrs
Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Majid Mahmood
v. Muhammad Shafi 2008 SCMR 554; Mirza Shahjehan Haider Gorgani v. Chairman,
Federal Land Commission, Islamabad and others 2008 SCMR 575 and Haji Muhammad Boota and others v. Member (Revenue) BOR and others 2010 SCMR 1049 ref.
(b) Civil Procedure Code (V of 1908) ---
----S. 114--- Review ---Scope ---Scope of review is very limited and review petition is not
maintainable on those points which have been decided one way or the other ---Any dispute
which has already been resolved cannot be review ed, even if the same has been resolved
illegally ---Review cannot be allowed to reopen the case for the purpose of affording
rehearing of the points already resolved.
(c) Civil Procedure Code (V of 1908) ---
----S. 114 ---Review ---Scope ---Exercise of review jurisdiction does not mean a rehearing of
the matter and as finality is attached to the order, a decision, even though it is erroneous per se, would not be a ground to justify its review ---Before an error can be a ground for review,
it is necessary that it must be one which is apparent on the face of the record, that is, it must
be so manifest, so clear that no Court could permit such an error to remain on record---Be it an error of fact or of law, it must be an error which is self evident and floating on t he surface
and does not require any elaborate discussion or process of ratiocination.
(d) Civil Procedure Code (V of 1908) ---
----S. 114 ---Review ---Scope ---Where a Court has taken a conscious and deliberate decision
on a point of law or fact while disposi ng of a petition or an appeal, review of such judgment
or error cannot be obtained on grounds that the Court took an erroneous view or that another
view on reconsideration is possible ---Review cannot be allowed on the ground of discovery
of some new materi al, if such material was available at the time of hearing of appeal or
petition but not produced.
(e) Civil Procedure Code (V of 1908) ---
----S. 114--- Review ---Scope ---Unless and until there is an error or a mistake on the face of
the record or for that matter some new and important matter or evidence has been discovered
a review application is incompetent.
Daewoo Corporation v. Zila Counc il, Jhang and 2 others 2004 SCMR 1213; Messrs
Pakistan International Airlines Karachi v. Inayat Rasool 2004 SCMR 1737; Majid Mahmood
v. Muhammad Shafi 2008 SCMR 554; Mirza Shahjehan Haider Gorgani v. Chairman, Federal Land Commission, Islamabad and others 2008 SCMR 575 and Haji Muhammad Boota and others v. Member (Revenue) BOR and others 2010 SCMR 1049 ref.
Muhammad Riaz Ahmed for Applicant.
Date of hearing: 2nd March, 2020.
ORDER
ROZI KHAN BARRECH, J. ---This application has been filed under Section 114
read with section 151, C.P.C. and Article 199 of the Constitution of Islamic Republic of Pakistan 1973, seeking review of the order dated 23.01.2020, passed by this court in Constitution Petition No. 46 of 2020, on following grounds:
"A) That there are several error patents on the face of record in the Order which had led to miscarriage of justice by giving erroneous inference on question of law in violation of the established principle governing administration of justice.
B) That points raised in the mem o of petition has caused omission by this Honourable
Court regarding Article -4, Article 10 -A of the Constitution of Islamic Republic of
Pakistan. Similarly provision of section 24 -A of the General Clauses Act, 1897
remained un -attended.
C) That it has als o been skipped from the notice of this Honourable Court to the
extent that arguments of the counsel of the petitioner has not been mentioned in the Order."
2. We have carefully considered the arguments so advanced by learned counsel for the
applicant and h ave perused the available record with his able assistance.
3. Record transpires that this court, vide order dated 23.01.2020 passed in C.P. No. 46 of
2020 dismissed the petition filed by the applicant in limine with the following observation:
"4. The perusal of record shows that in the advertisement dated 2nd June 2019,
published in Daily Mashriq Quetta, it is clearly mentioned that if the contractor fails
to deposit monthly instalments on or before seventh of each month, his contract will
be terminate d without any notice and the amount submitted by him will be forfeited in
favour of the State. The approval letter dated 30th August 2019 regarding award of
contract rights for collection of royalty shows that the petitioner paid amounts of Rs.
2,000,000/ - and 2,400,000/ - being 25 % of the total bid amount of security deposit,
and an amount of Rs. 14,666,666/ -as an advance instalment, as such, contract for
collection of royalty on Minor Minerals in District Pishin/Killa Abdullah was awarded to him and he wa s directed to submit balance amount of Rs. 16,133,334/ - in
nine (09) equal instalments i.e. Rs. 1,792,593/ - per month. The petitioner vide letter
dated 10th July 2019 was also directed by respondent No. 1 to execute an agreement (Specimen enclosed to Non -Judicial Stamp Paper) costing 0.25% of the total bid
amount of Rs. 44,000/ - duly attested by the 1st Class Magistrate. The impugned order
shows that due to non- compliance of the same the contract was terminated. There are
certain factual controversies invol ved in the matter which cannot be resolved in
exercise of constitutional jurisdiction of this court, as a thorough probe and
investigation would be needed to set the controversy at rest, particularly when a
specific allegation of foul play on the part of r espondents has been levelled by the
petitioner. It is well settled by now that superior courts should not indulge in
investigation of disputed questions of fact, which necessitate taking of evidence."
4. So far as review of the above referred order is concerned, it goes without saying that
scope of review is very limited and review petition is not maintainable on those points which
have been decided one way or the other. Moreover, any dispute which has already been resolved cannot be reviewed, even if the s ame has been resolved illegally. It is settled
proposition of law that the review cannot be allowed to reopen the case for the purpose of
affording rehearing of the points already resolved. The exercise of review jurisdiction does not mean a rehearing of t he matter and as finality attaches to the order, a decision, even
though it is erroneous per se, would not be a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions, which converge on the merits of the decision. It needs no reiteration that before an error can
be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court co uld permit such an error to
remain on the record. It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of ratiocination. It is not denied that if the Court has taken a conscious and deliberate
decision on a point of law or fact while disposing of a petition or an appeal, review of such
judgment or error cannot be obtained on the grounds that the Court took an erroneous view or that another vie w on reconsideration is possible. Review also cannot be allowed on the
ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced.
5. Bare perusal of the order dated 23.01.2020 pas sed by this court in C.P. No.46 of 2020
reveals that the same was handed down after hearing the learned counsel for the applicant. Moreover, we find that the impugned order suffers from no error or mistake warranting review of the same. In the said order a ll the points raised by learned counsel for the petitioner
were addressed/answered by this court after going through entire record with care and
caution. From whatever angle the matter may be examined, no case of review is made out. Apart from that it is s ettled law that the case cannot be reopened on merits in a review
application.
Unless and until there is an error or a mistake on the face of the record or for that
matter some new and important matter or evidence has been discovered, a review application
is incompetent. Same is the position in the case in hand because learned counsel for the applicant has failed to point out a mistake or error apparent in the impugned order sought to be reviewed. In the case titled as Daewoo Corporation v. Zila Council, J hang and 2 others
(2004 SCMR 1213) the Hon'ble Apex Court observed as under:
"3. It is well -settled by now that "a review petition is not competent where neither any
new and important matter or evidence has been discovered nor any mistake or error
apparen t on the face of the record. Such error may be an error of fact or of law but it
must be self -evident and floating on surface and not requiring any elaborate
discussion or process of ratiocination". Master Tahilram v. Lilaram 1970 SCMR 622, Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner 1968
SCMR 800, Rehmatullah v. Abdul Majid 1968 SCMR 838, Hassan Din v. Claims
Commissioner, Lahore 1968 SCMR 1047(2), Qamar Din v. Maula Bakhsh 1968 SCMR 1042(1), Muhammad Akram v. State 1970 SCMR 418 and Nawab Bibi v.
Hamida Begum 1968 SCMR 104. There is no cavil with the proposition that "if
judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable
notwithstanding error being apparent on the face of the record". Zulfikar Ali Bhutto v.
State 1979 SCMR 427."
In another case reported as Messrs Pakistan International Airlines Karachi v. Inayat
Rasool (2004 SCMR 1737), the Hon'ble Supreme Court of Pakista n held that if all the
grounds raised by the petitioner in support of review petition having already been discussed
and decided on merits, same cannot be allowed to be re- agitated. Relevant portion of above
said judgment is reproduced here under: --
"The scope of the review is limited and always confined to the essential aspects of the case referred to at review stage which were not considered in the judgment but if the grounds taken in support of the petition were considered in the judgment and decided on merits, the same would not be available for review in the form of re -examination
of the case on merits. The grounds urged by the learned counsel in support of this review petition, have already been discussed and decided on merits, therefore, the same would not be allowed to be re -agitated."
In another case reported as Majid Mahmood v. Muhammad Shafi (2008 SCMR 554),
the Hon'ble Supreme Court held as under: --
"This is settled law that the case cannot be reopened on merits in review. Scope of review is very limited and review petition is not maintainable on those points which
have been decided one way or the other. Moreover any dispute which has already been resolved cannot be reviewed, even if the same has been resolved illegality."
In another case reported as Mirza Shahjehan Haider Gorgani v. Chairman, Federal
Land Commission, Islamabad and others (2008 SCMR 575) in which the Hon'ble Supreme
Court held as under: --
"5. We find that although the grounds now agitated before us were available to the petitioner, when the petition was argued, yet as it is evident from the order under
review the learned counsel for the petitioner did not raise the said contentions at the relevant point of time. Thus, the petitioner is now precluded from urging the contenti ons in review proceedings which were not argued at the time of hearing the
petition for leave to appeal."
Reliance is also placed on the case of Haji Muhammad Boota and others v. Member
(Revenue) BOR and others (2010 SCMR 1049) in which the Hon'ble Suprem e Court held as
under: --
"All the arguments made today have been considered and decided in a comprehensive manner in the judgment impugned. In fact Mr. S. M. Zafar learned Senior Advocate Supreme Court and Mr. Badar Munir, learned Advocate Supreme Court w anted re -
examination and re- evaluation of the entire evidence once again which, we are afraid,
cannot be done while dilating upon these review petitions. It is well -settled by now
that review cannot be granted on the ground that certain facts require re -appraisement
by Supreme Court. In this regard we are fortified by the dictum laid down in Basharat Khan v. The State 1984 SCMR 1033 (1) Zulfikar Ali Bhutto v. State PLD 1979 SC 741, Muhammad Nazir v. State 1979 SCMR 89, Kala Khan v. Misri Khan 1979 SCMR 347, Saghir Ali v. Mehr Din 1968 SCMR 729. There is no cavil to the
proposition that review cannot be granted for merely re -examination of the same
arguments. Rearguing a case on merits as well as additional grounds is beyond the
scope of review petition."
In view of what has been discussed above, we do not find any substance in the
application; therefore, the same is dismissed in limine.
SA/155/Bal. 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.