PLJ 2018 Quetta 49 (DB)
Present : NAEEM AKHTAR AFGHAN AND MUHAMMAD KAMRAN KHAN MULAKHAIL , JJ.
Haji MUHAMMAD NAEEM --Appellant
versus
SIRAJ -UD-DIN and 6 others --Respondents
Review Appln. No. 2 in C.P. No. 74 of 2015, decided on 25.4.2016.
Constitution of Pakistan, 1973--
----Art. 199--Civil Procedure Code, (V of 1908), Ss. 117, 114, O. XLVII, R. 1--Review
application --Scope of review --Jurisdiction of High Court by virtue of S. 117, CPC --Question of --
Whether the application fits within the f our concerns of review of jurisdiction of High Court --
Power and procedure of review are governed by Section 114 and Order XLVII of CPC --Rule 1
of Order XLVII provide, scope of review jurisdiction--Review application entertained when
applicant establishes t hat “on discovery of new and important matter or evidence --Review is
only permissible and maintainable provided conditions stipulated in order XLVII are fulfilled--It is well settled that main aim of power to review is to enable correction of error alone a nd nothing
else power of review its own judgment/order is only discretionary and reasons for conferring discretionary power of review on a Court is to prevent injustice being done --A review in no case
should amount to rehearing case on merits and case cannot be re -opened on pretext of review for
above reason constitution petition is dismissed--Petition dismissed. [P. 58] A & B
Mr. Khushnood Ahmed, Advocate for Applicant.
Nemo for Respondents.
Date of hearing: 16.12.2015.
O
RDER
Muhammad Kamran Khan Mulakha il, J.--This application has been filed with the following
prayer:
“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 meri ts 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 Constit utional Petition No. 74/2015,
dismissed the petition filed by the 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 entr y in a ‘Record -of-Rights’ or in a
periodical record as to any right 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 regarding 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 appr oached 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 t o be taken to the Court of civil jurisdiction. The revenue authorities
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 whi ch
are supported by a decree or order binding on parties and not otherwise. 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 cl erical error or
patent facts, requiring no elaborate inquiry for their 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 officia l in the hierarchy of revenue
authorities, particularly after lapse of 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 affect 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 Settlem ent 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 Hotel,
The M all 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 applicat ion 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 adjudicate 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 are be ing 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 be nch (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 aggrieved per son 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 Peoples Act,
1976.
(ix) An appeal against the judgment/order passed 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 jurisdic tional 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 e xceeds 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 made 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 & 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 heard by a Division Bench. Therefore, the contention of
the learned counsel to this extent is without any substance and is not worth conside ration 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 connecti on 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 superintendent subordinate Courts.
Each High Court shall supervise and control all Court s subordinate 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 Art icle 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 decide 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 o r in excess 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 judgment/order of the subordinate Court has miserably failed to follow the
directions of law or the rules of procedure framed there under.
(iv) A writ of certiorari can also be issued when the Court or Tribunal act 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 exer cise jurisdiction.
Reference is made to the case of Dilawar Jan v. Gul Rehman (PLD 2001 SC 149).
The High Court car 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 t he 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
Constit utional 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 t he 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 placed 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 wit h
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. ar e 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 s ome point material to the
conviction or order, certiorari will be granted.”
Learned counsel for the applicant has relid upon the judgments rendered by the Hon’ble Apex Court in Shah Jahan v. Amjad Ali, Hawaldar (2000 SCMR 88) AND General Manager, Pearl
Continental Hotel. The Mall Lahore/Rawalpindi v. Farhat Iqbal (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 t o 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 f ound 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 ca n 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 expre ss violation of law. Thus, a writ of certiorari lies in all
cases where there is a duty 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 sa id entries assailed the order of the settlement officer
before the Additional Commissioner, 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 A dditional Commissioner filed a revision petition before the Member Board of Revenue,
who 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 its 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, t herefore, Section 53 of the Act provides that if any person “considers himself aggrieved
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”. There fore, in view of the provisions
supra, when this Court reached the conclusion that propriety 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 (“CPC”) are made applicable to the
High Court. The power and procedure of review are governed by Section 114 and Order XLVII
of the, C.P.C. Rule I of Order XLVII provides the scope of review juris diction. An application
seeking review of the earlier order passed by the Court can only 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 know ledge, or could not be produced, on account of some
apparent error or mistake, or for any 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 applicant 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 a pparent error or mistake in the order in question. It is well
settled that the main aim 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. Shan
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.
( ) Petition dismissedThis 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,
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