' NAZIM HUSSAIN SIDDIQUI, C.J.---The facts giving rise to this miscellaneous appeal are as follows:
1. Civil Petition No,1099-L/1995, 1332-L/1995 and 1124-L/1995 were heard together at the leave granting stage. Mr. Maqbool Elahi Malik, learned Senior Advocate Supreme Court appeared as counsel for the appellants herein, viz. M/s National Electric Co. (Petitioners in C.P. No,1099-L/1995 and respondents Nos. 1 to 4 in C.P. No,1124-L/1995), but in C.P.No,1332-L/1995 said company, as the respondent was not shown to have been represented. All aforesaid matters were heard and disposed of by this Court on 7-6-2000. However, on the said date Mr. Maqbool Elahi Malik was not present on behalf of said company.
2. Vide judgment dated 7-6-2000, C.A. No, 1230 of 1996 was disposed of as having become infructuous. On the same date, Civil Appeal No,1228 of 1996 filed by M/s National Electric Co./judgment/debtor, was dismissed for non-prosecution while Civil Appeal No,1229 of 1996 filed by the Allied Bank of Pakistan was dismissed as withdrawn. While disposing of C.A. No,1230 of 1996, order of High Court relating to refund of the auction amount to respondent No,1 (auction- purchaser) was maintained and so also the direction of the High Court that besides receipt of profit earned on account of investment of the auction amount in profit bearing scheme, the auction-purchaser (respondent No,1) shall also be entitled to recover interest at the rate of 10% from the present appellants on the auction amount deposited by him.
3. The appellants filed civil review petition and it was returned as being not entertainable on account of non-compliance of the provisions of Rule 6 of the Order XXVI of the Supreme Court Rules, 1980 (hereinafter called the Rules), hence the present miscellaneous appeal was filed. It appears that on 4-6-2003 the matter was placed before a learned Judge of this Court. Since no one appeared for the appellants, it was dismissed in default. Therefore on 30-9-2004 the miscellaneous appeal was restored.
4. On 13-10-2004 a learned Judge of this Court heard the matter and ordered that the miscellaneous appeal be fixed in Court, hence it is before us.
5. The only point involved is the interpretation of Rule 6 of the Order XXVI of the Rules, which reads as under:-- "6. Except with the special leave of the Court, no application for review shall be entertained unless it is drawn by the Advocate who appeared at the hearing of the case in which the judgment or order sought to be reviewed, was made. Nor shall any other Advocate, except such Advocate, be heard in support of the application for review, unless the Court has dispensed with the requirement aforesaid."
6. Perusal of Order XXVI reveals that hearing of review petition is not automatic. It is subject to various conditions. Under the above quoted rule, except with special leave of the Court, no application for review shall be entertained unless it is drawn by the Advocate who appeared at the hearing of the case in which the judgment or order sought to be reviewed was made. It is an admitted fact that when the order dated 7-6-2000 was passed in Civil Appeal No,1230 of 1996, Mr. Malik was not present for said company.
7. Learned counsel for the appellants strenuously argued that at the leave granting stage, he had appeared, but could not appear on the date when the appeal was disposed of for the reason that during pendency of above appeal a new development took place and the State Bank of Pakistan issued a policy in which incentive was given to the debtors to clear the loan amounts by paying in lump sum an amount of Rs,382,000 in lieu of the entire amount of loan and the judgment-debtor availed said incentive and paid the amount. According to him, the matter was already settled by the concerned party. Learned counsel, in support of his contention, cited Muhammad Younas v.
State (PLD 2005 SC 93).
8. In the above-citied case, this Court held as under:- "6. We have heard the learned counsel for both the parties at length. It is to be noted that Mr. Munir Ahmed Bhatti, Advocate Supreme Court had not moved an application seeking his exemption from addressing the Court in the Review Petition in terms of Order XXVI, Rule 6 of the Rules. The application on which order dated 4th April, 2002 was passed is filed under the residuary provisions, i,e, Order XXXIII, rule 1 read with. Rule 6 of the rules. It is an uncontroversial state of law that in presence of specific provisions of law the residuary provision generally meant to exercise inherent jurisdiction like section 151, C.P.0 is not invoked, therefore, the application submitted in this behalf by the learned counsel was not competent."
' Thus, in the above cited case it has been reiterated that rule 6 of the Rules insists upon the presence of the counsel who had originally argued the case. The record reveals that in C.A. No,1230 of 1996, both learned counsel for petitioners/appellants Khalid Siddique and respondent No,6 appeared while Mr. Malik did not appear.
9. On the other hand, Mr. S.M. Nasim, learned Advocate Supreme Court, appearing on behalf of the respondent cited Rashid v. State (1993 SCMR 295), Feroze Din v. Sardar Muhammad (2002 SCM R 1993), Mukhtar Ahmad v. State (PLD 2003 SC 126) and Muhammad Younas v. State (PLD 2005 SC 93). The ratio of above cases is that an Advocate, who did not appear at the hearing of the appeal, could not appear in the B review petition as of right. In Ghulam Mustafa v. State (PLD 2004 SC 475), similar view was taken. In the circumstances no case for relaxing the provisions of rule 6 of Order XXVI of the Rules is made out.
10. On merits also, the appellants have no case. High Court rightly compensated the auction- purchaser by issuing direction to pay him interest on the amount of Rs,4,760,000 which he had deposited, at the rate of 10% from the date of deposit up to the date of judgment by the judgment- debtor. Above finding has not been disturbed by this Court in Civil Appeal No,1230 of 1996.
11. We are of the view that both on law and facts, the appellants have no case. Accordingly, this civil miscellaneous appeal is dismissed.