' RAJA SAEED AKRAM KHAN, J.---This appeal, with the leave of the Court, arises out of the judgment passed by the High Court on 9-10-2008, whereby the review petition filed by the appellant, herein, has been dismissed as being incompetent.
2. The brief facts giving rise to the instant appeal are that Said Muhammad, respondent No, 2, filed a declaratory suit against Gul Taj Begum, respondent herein, in the Court of Senior Civil Judge, Kotli, on 25-3-1999. It was averred in the plaint that the land comprising survey Nos. 411 and 412 measuring 10 kanals 17 marlas, situate in village Barali, Tehsil and District Kotli, was in possession of the plaintiff-respondent and his real brother Laal Hussain. According to the plaintiff, Laal Hussain died issueless in August, 1997, therefore, the plaintiff was the sole owner of the property left by the deceased. It was further alleged in the plaint that in the year 1963-1964, Laal Hussain, deceased, married Mst. Nawabi, widow of one Bagga resident of Dhanwan. According to the plaintiff- respondent she contracted marriage with Laal Hussain only after three or four months of the death of Bagga, her first husband, and that she was pregnant from Bagga at the time of contracting second marriage with the deceased brother of the plaintiff-respondent. The plaintiff requested for a declaratory decree in the terms that defendant-respondent No, 1, Gul Taj Begum, is neither descendant of Laal Hussain, deceased, nor is entitled to any share from his property. The learned Senior Civil Judge, after completion of the trial, vide order dated 14-2-2007, dismissed the suit of the plaintiff-respondent for want of proof. On 18-6-2007 the appeal filed by the plaintiff- respondent before the District Judge Kotli was dismissed. On second appeal to the High Court, vide order dated 23-10-2007 a compromise decree was passed in favour of Said Muhammad, respondent herein, in view of the statement of Gul Taj Begum and compromise entered by the parties. It appears from the record that through an agreement to sell dated 25-3-2007 respondent No, 1, Gul Taj Begum, had transferred the land measuring 2 kanals 14-1/2 marlas in favour of the appellant herein, in lieu of Rs,8,23,750 out of her alleged share in the suit land. On 17-9-2007, the appellant, herein, filed a suit for specific performance of the contract against respondent No, 1, in respect of the property allegedly to be transferred in his favour by her. Meanwhile on 23-1-2008, after the grant of compromise decree in favour of Said Muhammad, the appellant, herein, filed a review petition against the judgment/order of the High Court dated 23-10-2007. Through the impugned order dated 9-10-2008, the review petition filed by the appellant, herein, has been dismissed on the ground that under Rule 43 of the Azad Jammu and A Kashmir High Court Procedure Rules, 1984, no review application can be entertained by the Court without a certificate furnished by the Advocate.
3. Ch. Muhammad Reaz Alam, the learned counsel for the appellant, submitted that the High Court, while dismissing the review petition has not properly adhered to the provisions of Rule 43 of the Azad Janmmu and Kashmir High Court Procedure Rules, 1984 after entertaining the review petition.
He further argued that the impugned judgment of the High Court is against law and facts of the case which is not sustainable in the eye of law. Once the matter has been entertained, that cannot be dismissed on the ground that the review petition was not competent. If there was any pre- requisite before filing the review petition, then after, entertaining the same that has become immaterial. He urged that Order XLVII, C.P.C., and Rule 43 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 are applicable simultaneously in the proceedings before the High Court. In Order XLVII of C.P.C. There is no mandatory provision for filing a certificate by the counsel with the review petition. Both, the C.P.C. And the Azad Jammu and Kashmir High Court Procedure Rules, 1984 are procedural one, therefore, the learned Judge in the High Court miserably failed to interpret both the provisions in true perspective which is a grave miscarriage of justice.
4. On the other hand, Mr. Abdul Majeed Mallick, the learned counsel for the respondents, has strongly controverted the stand taken by the learned counsel for the appellant while submitting that the judgment passed by the High Court is well reasoned and perfect. The learned Judge in the High Court has attended all the aspects of the case and decided the same in a comprehensive manner while giving cogent reasons in dismissing the review petition. He further urged that under Rule 43 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, it was mandatory to file a certificate before filing the review petition. Without appending the certificate by the counsel, the review petition was not competent, therefore, the finding of the learned Judge in the High Court is based on strong reasons. He further urged that the Azad Jammu and Kashmir High Court Procedure Rules, 1984 were enacted under the provisions of section 44-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974, therefore, these rules have the overriding effect on the other laws. The provisions of C.P.C. Are not attracted in the matter in hand. He submitted that the review petition was otherwise hopelessly time-barred as limitation provided for filing the same is 30 days whereas it has been filed beyond the prescribed period. He urged that the appellant was not party before the High Court in original appeal, therefore, he was not entitled to file the review petition. He lastly argued that at the most the case of the appellant is to recover the amount from respondent No, 1 as compensation through a suit.
5. We have heard the arguments at some length and also perused the record along with the impugned judgment. The whole controversy revolves around Rule 43 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 which has been reproduced by the High Court in the impugned judgment. However, we think it would be proper to reproduce the same for better understanding of the matter:- "43. (1) The Court may review its judgment or order but no application for review shall be entertained except on the grounds mentioned in Order XLVII Rule 1 of the Code.
(2) An application for review shall set forth the ground on which a review is sought, plainly and concisely. It shall be signed by a counsel and shall contain a certificate by an Advocate of the Court that it is supported by proper grounds in the following form namely:- .................... Advocate for the above named petitioner do hereby certify that I have perused the judgment and the relevant record of the case and in my opinion the grounds contained in the petition are good and sufficient for the review sought.'
' No such application shall be entertained by the Court without the aforesaid certificate."
' After going through the above quoted provisions, it reveals that an application for review shall set- forth the grounds on which a review is sought, plainly and concisely. It shall be signed by a counsel and accompanied by a certificate signed by the Advocate in the form prescribed under this provision. However, an embargo has been imposed under the said Rule that no such application shall be entertained by the Court without the aforesaid certificate. After minute study of the referred provision, there is no doubt in our mind that at the time of filing the review application, mandatory requirement of filing a certificate by the Advocate along with the review petition has to be fulfilled. However, it is also clear from the above provision that if the said certificate is not accompanied with the application for review, the Court shall not entertain the application. Here the position has 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 petition and after hearing both the parties, the impugned judgment was delivered. In view of the above situation, we are constrained to hold that although it is mandatory requirement of Rule 43 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 that a certificate by an Advocate shall accompany the review petition and in absence of the same the Court, shall not entertain the review petition. But once it has been entertained, it shall be deemed that the requirement has been dispensed with by the Court. Therefore, the High Court, after entertaining the review application, was not justified to dismiss the review petition on the ground that it was not competent. At the time of filing of the review petition under the above referred provision, it was the duty of the Court to look into the same and if it was found that the requirement of provision has not been fulfilled in its true spirit, then the Court should have taken the notice of it which has not been done in this case.
' While adverting to the argument of the learned counsel for the respondents that the review petition was time-barred, no such ground has been raised in the concise statement, therefore, we are not inclined to give any finding on this point. Even otherwise, the appellant was not party in the High Court in original appeal, therefore, he filed the review petition when the fact came to his knowledge.
' Resultantly this appeal is accepted, the judgment of the High Court dated 940-2008 is set aside and the case is remitted back to the High Court with the direction to decide the review petition on merits with no order as to costs.