JUDGMENT: Raja Saeed Akram Khan, J.- This review petition has been filed for seeking review of the judgment of this Court passed in civil appeal No.48 of 2008 on 12.7.2012, whereby appeal filed by respondent No.1, Ch. Maqbool Raza, deceased, against the judgment and decree of the High Court dated 13.5.2008 was accepted.
2. The brief facts giving rise to this review petition are that the father of the petitioners, Ch. Muhammad Alam, instituted a suit for specific performance of contract/agreement-to-sell on 22.2.1989 on the ground that respondent No.1, Ch. Maqbool Raza, (deceased), executed an agreement-to-sell regarding bungalow No.C1 situate in Sector C-1, Mirpur in his favour on 8.11.1987 in lieu of Rs. 15,00,000/- and a sum of Rs. 1,75,000/- was paid to him as an earnest money and the remaining amount was agreed to be paid at the time of execution of the sale-deed. The said suit was dismissed by the trial Court in the first round of litigation. The order of the trial Court was vacated by the learned High Court but on appeal, the order was modified by this Court vide its judgment dated 16.12.1992 in which the suit was rejected under Order VII, Rule 11, C.P.C. With the observation that no cause of action is disclosed from the plaint. After the rejection of the plaint by this Court, the father of the present petitioners filed a second suit before the learned District Judge, Mirpur on 13.3.1993 and prayed for the specific performance of the contract/agreement with additional relief for transfer of the disputed bungalow in his favour along with permanent injunction but the suit was dismissed by the District Judge vide its judgment and decree dated 30.6.2007. The judgment and decree of the District Judge was assailed before the High Court while preferring an appeal. The same was accepted by the High Court while setting aside the judgment and decree of the trial Court vide judgment dated 13.5.2008. The judgment and decree of the High Court dated 13.5.2008 was challenged before this Court through an appeal by Ch. Maqbool Raza, deceased, respondent, which was accepted vide judgment dated 12.7.2012. The judgment of this Court dated 12.7.2012 has been assailed by the petitioners herein through the instant review petition.
3. Mr. Khalid Rasheed Ch., the learned counsel for the petitioners, has argued that this Court while passing the impugned judgment failed to take into consideration that no bench was constituted by the learned Chief Justice for hearing and disposal of the instant case, hence, the judgment under review is no judgment in the eye of law. He argued that the observation made in para 3 of the judgment regarding placing of the case before the bench for hearing and disposal can be termed as violation of the provisions of AJ&K Interim Constitution, Act, 1974, read with the Azad Jammu and Kashmir Supreme Court Rules, 1978, which is an error apparent on the face of the judgment. He vehemently contended that the instant case has been heard by the bench consisting of two Judges against the constitutional provisions, whereas section 42(13)(c) of Azad Jammu and Kashmir Interim Constitution Act, 1974, clearly provides that on account of difference of opinion between two Judges, the matter should be referred to a third Judge. He argued that the judgment under review has been passed by the division bench, whereas, the same should have been passed by a single Judge as per provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
4. The next point argued by the learned counsel for the petitioners for review of the judgment of this Court is that at the time of hearing of appeal the learned counsel had argued with reference to section 43 of the Transfer of Property Act regarding acquiring of the title of the property subsequently, being an admitted fact, but that legal stance taken by the counsel is neither mentioned nor resolved by this Court while rendering the impugned judgment. He further added that he has also filed an affidavit in this regard and there is no rebuttal from the other side, hence the fact is admitted that there is an error apparent on the face of the judgment under review. He further argued that this Court while passing the judgment under review decamped of the fact that in presence of the Supreme Court Rules, strict application of Civil Procedure Code is not desirable under law and the rules are meant to administer justice and should not be applied when it can cause any prejudice to the other party, so the application of Order XLI of C.P.C mentioned in the judgment under review requires serious thought. He has relied upon the cases titled Federation of Pakistan and others vs. Mian Muhammad Nawaz Sharif and others [PLJ 2009 SC 532], Sawar Khan vs. Banaras Khan and 2 others [2004 SCR 506], Mirza Shahjehan Haider Gorgani vs. Chairman Federal Land Commission, Islamabad & others [2008 SCM R 575], Ali Ahmed vs. Muhammad Iqbal [2009 SCM R 394], Ghulam Murtaza vs. Abdul Salam Shah & others [2010 SCM R 1883], Raja Muhammad Ashraf Khan Kayani vs. Azad Govt. & 4 others [1997 SCR 389], Mirza Lal Hussain vs. Custodian of Evacuee Property and others [1992 SCR 214], Kh. Muhammad Ahsan vs. Manzoor Ali Khokhar & another [1999 SCR 163], Mst. Gulzar Begum vs. Asif and others [1994 SCR 116], Kh.
Muhammad Ayub vs. Mirza Tazarrat Hussain & 5 others [1998 SCR 58] and Government of N.W.F.P.
Through Deputy Commissioner/Collector, Bannu and 3 others vs. Dilawar Khan and 7 others [2001 CLC 804].
5. On the other hand, Sardar Muhammad Azam Khan, the learned counsel, who entered his appearance on behalf of respondents, has argued that all the controversial questions have comprehensively been resolved by this Court while rendering the judgment under review and no point has been left unattended. He further argued that the scope of the review is very limited and the judgment can only be reviewed on the ground if there is an error apparent on the face of record. He submitted that the constitution of benches is a sole prerogative of the Chief Justice, therefore, the argument advanced by the learned counsel for the petitioners is ill-founded. In the judgment under review the bench was duly constituted by the order of Chief Justice. He further submitted that a number of times the case was fixed before this bench and the learned counsel for the petitioners has been appearing before the bench but he never raised any objection regarding the constitution of the bench, therefore, at this stage, this issue cannot be taken into consideration.
He further argued that the argument of the learned counsel for the petitioners that if there is difference of opinion between the Judges comprising a division bench then the matter should be referred to a third Judge means a single Judge, is not tenable in the eye of law, as no such ground has been taken in the review petition. He further submitted that it is the settled principle of law that the review cannot be argued like an appeal. He argued that as the bench was constituted by the Hon'ble Chief Justice, therefore, the argument of the learned counsel for the petitioners in this regard has no force. He has relied upon the cases titled Federation of Pakistan and others vs. Mian Muhammad Nawaz Sharif and others [PLJ 2009 SC 532], Sawar Khan vs. Banaras Khan and 2 others [2004 SCR 506], Mirza Shahjehan Haider Gorgani vs. Chairman Federal Land Commission, Islamabad & others [2008 SCM R 575], Ali Ahmed vs. Muhammad Iqbal [2009 SCM R 394] and Ghulam Murtaza vs. Abdul Salam Shah & others [2010 SCM R 1883].
6. In rebuttal, Mr. Khalid Rasheed Ch. Has added that if a law point was not taken in the appeal or in the petition for leave to appeal the same can be taken at any stage of the proceedings. In this regard he has relied upon the cases titled Kh. Muhammad Ahsan vs. Manzoor Ali Khokhar and another [1999 SCR 163] and Kh. Muhammad Ayub vs. Mirza Tazarrat Hussain and 5 others [1998 SCR 58]. He further added that an unlawful act cannot be termed as lawful by the consent of the parties. He has relied upon the cases titled Muhammad Nazir and 9 others vs. Muhammad Sadiq and 7 others [PLD 1989 AJ&K 28], Manzoor Hussain and 6 others vs. Muhammad Azeem [2010 SCR 311], Muhammad Sharif Khan vs. Mirza Fazal Hussain and others [1993 SCR 88], Syed Ali Asghar Shah vs. Azad Jammu & Kashmir Public Service Commission & 5 others [2008 SCR 133], Aziz-urRehman vs. Presiding Officer Local Council Elections and others [1993 SCR 177] and Ch. Muhammad Sadiq vs. Mujahid Hussain Naqvi [2008 SCR 406]. He lastly argued that if a thing is required to be done in a particular manner the same should be done in that manner.
Mr. Abdul Majeed Mallick, Advocate, appeared before the Court and made the addition in the arguments advanced by Mr. Khalid Rasheed Ch., while drawing the attention towards section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, that the relevant provision of the Constitution is mandatory in nature.
We have heard the arguments of both sides at some length. This review petition has been moved for seeking the review on the following three grounds:- "a) This Honourable Court while passing the judgment under review elude the intimation of the fact that no Bench has been constituted by the learned Chief Justice for hearing and disposal of the instant case, hence, the judgment under review is no judgment in the eye of law and the observation mentioned in para 3 of the judgment regarding the placing of the case before the Bench for hearing and disposal can be termed as violation of Constitution and Supreme Court Rules which is an error apparent on the face of record. This sole ground is suffice to recapitulate the instant judgment. b) It is pertinent to reveal that the pivotal issues decided by the lower Courts which were not challenged by the party against whom those issues were concluded, create a legitimate prerogative right in favour of the other party and that legal privilege passed in favour of one party should not be abolished or carried off by a single stroke of pen at the spur of the moment; c) During the course of arguments before this Hon'ble Court, one of the counsel for the petitioners Mr. Khalid Rasheed Advocate persuaded and argued with reference to Section 43 of the Transfer of Property Act regarding acquiring of the tile of the property subsequently being an admitted fact but that legal stance taken by the said counsel is neither mentioned nor resolved in the impugned judgment which gives the passage to the proposition of an error apparent on the face of the record."
9. While adverting to the first point raised in the review petition it may be stated that there is no denial that the constitution of Benches is the sole prerogative of the Hon'ble Chief Justice. The case in hand was entrusted to this Bench vide order of the worthy Chief Justice dated 22.5.2012 which is available on the record and the case appeared in the daily cause lists of this bench more than one time. The learned counsel for the petitioners has been appearing before this Bench but he never raised any objection with regard to the constitution of the Bench. The learned counsel for the petitioners for the first time raised the objection before this Court about the constitution of the bench after the pronouncement of the judgment under review. The constitution of the Benches is the sole prerogative of the Hon'ble Chief Justice and it is his discretion to constitute any Bench with any number of Judges and the same cannot be questioned. The Hon'ble Chief Justice in this regard enjoys unfettered powers. Even the Hon'ble Chief Justice can direct verbally to place any matter before any bench, whereas, in the case in hand, the bench was constituted on the written order of the Hon'ble Chief Justice which is part of the record. Therefore, such ground would not constitute either an error apparent on the face of record or discovery of new and important facts and evidence on record, which are sine qua non for exercise of review jurisdiction by this Court.
Hence, the argument of the learned counsel for the petitioners that the bench was not constituted is ill-founded and misconceived and the same is repelled.
10. While attending the argument of the learned counsel for the petitioners that in case of difference of opinion between two Judges, the matter was required to be referred to a third Judge, i.e., single Judge, it is stated that this argument was very much available at the time of arguing the appeal but the same was not argued. Even in the grounds of review, the same has not been taken, therefore, the same cannot be allowed to be argued at this stage.
The relevant provision of the Azad Jammu and Kashmir Supreme Court Rules which deals with the constitution of benches is Order XI which is reproduced as under:- "1. Save as provided by law or by these Rules, every cause, appeal or matter shall be heard and disposed of by the Court consisting of the Chief Justice and one other Judge; Provided that when the number of the Judges, (due to appointment of an adhoc Judge or otherwise) is temporarily increased, every cause, appeal or matter shall be heard and disposed of by a Bench consisting of two Judges to be nominated by the Chief Justice; [Provided further that in the vent any one of Judges constituting the Court is unable to hear and dispose of an appeal, revision petition, cause or matter the same may be heard and disposed of by a Single Judge;] Provided further that a petition for leave to appeal shall be heard and disposed of by a Judge nominated by the Chief Justice but the Chief Justice may in a fit case refer any petition as aforesaid to the Court consisting of two Judges; Provided further that in a case arising out of the Judgment, decree, order or sentence of any authority other than High Court, the decision of the Supreme Court shall be expressed in the terms of the opinion of the senior of the two Judges."
The corresponding provision of Pakistan Supreme Court Rules, 1980 is Order XI.
The above said provision has been interpreted by the Supreme Court of Pakistan in a case titled Supreme Court Bar Association vs. Federation of Pakistan, [PLD 2002 SC 939], in the following manner:- " However, depending upon the nature of the controversy involved in any particular case, the Chief Justice has the sole prerogative to constitute a larger Bench consisting of any number of Judges.
The objections raised at the Bar are neither new nor have been raised in the past in a number of cases but were repelled by this Court. In any case, it was conceded by all the learned counsel that it was the prerogative of the Chief Justice to constitute any Bench with any number of Judges and the same cannot be questioned. ...." It was further observed in the above referred case at page 953 as under:- " We reiterate here that his Court not once but on a number of occasions has laid down that it is the sole prerogative of the Chief Justice of Pakistan to constitute a Bench of any number of Judges to hear any particular case and neither any objection can be raised nor is any party entitled to ask for constitution of a Bench of its own choice. ...."
Similarly while interpreting the provisions of Order XI and Order XXXIII, rule 6 of the Supreme Court Rules, 1980, the Supreme Court of Pakistan in a case titled In re: M.A. No. 657 of 1996 In References Nos. 1 and 2 of 1996, has held as under:- "4. There are Supreme Court Rules available for regulating the procedure. Application of the party with a request for constitution of Full Court Bench will be covered by Order XI, which provides specifically for constitution of Benches by the Chief Justice. It is very clearly provided therein that the Chief Justice may, in a fit case, refer any cause or appeal as aforesaid to a larger Bench. Order XXXIII, Rule 6 of the Supreme Court Rules is not attracted in the present case as it provides that the Court has inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court "
Similar view prevailed in a case titled Malik Hamid Sarfaraz vs. Federation of Pakistan [PLD 1979 SC 991], in which it has been observed as under:- " It is the undisputed privilege and duty of the Chief Justice, whether of a High Court or of the Supreme Court, to constitute Benches for the hearing and the disposal of the cases coming before this Court; and no litigant or lawyer can be permitted to ask that his case be heard by a bench of his choice. Even though the present petition may involve references to the decision of this Court in the case of Begum Nusrat Bhutto, mentioned by Mr. Mahmud Ali Qasuri, yet this is not a petition for review of the judgment in that case. As far as the question of interpretation of that judgment is concerned, every Bench of this Court is competent to undertake that exercise: and to suggest otherwise amounts to an uncalled for reflection on the ability and capacity of those Judges who did not sit on the original bench."
12. The next argument of the learned counsel for the petitioners that the point raised with regard to section 43 of the Transfer of Property Act, has not been taken into consideration by this Court, has also no force as in para 7 of the judgment under review, the argument of the learned counsel for the petitioners was thoroughly attended which is reproduced as under:- "7. Mr. Khalid Rasheed Chaudhry, Advocate, also appeared on behalf of respondents and argued the case at some length. While pressing into service a vital legal proposition, he submitted that when cases of contract are brought before the Courts for specific performance or damages, the recitals in contract or agreement deed has to be construed strictly and intention of parties is to be gathered from the document itself. The learned counsel further submitted that statements of the parties are brought on record. The legal proposition, or for that matter the fiction of law cannot be considered in vacuum. Likewise, when there is a subsisting valid contract, either party cannot engraft interpretation or condition of his own choice for the purpose of avoiding or implementing the legal contract in clear meaning. After execution of reciprocal contract or agreement, no party can be allowed for breach of contract or refuse to specific performance or rejection of the claim or damages on the basis of escalation in prices. The learned counsel also argued that the rejection of first plaint under Order VII, rule 11, C.P.C. Does not itself preclude a plaintiff from filing a subsequent suit on the similar cause of action nor does the principle of res judicata apply, specifically when suit or plaint has not been decided on merits and that the Court empowered under law to mould the relief to compensate either party in the interest of justice."
The argument being misconceived is repelled.
13. While adverting to the argument of the learned counsel for the petitioners that he has also filed an affidavit in this regard and preference should be given to the affidavit of an Advocate when there is no rebuttal from the other side. In reply to this argument, it is stated that there is no second opinion that an affidavit filed by an Advocate should be given preference but this argument would be relevant if the argument of the learned counsel was not considered at the time of hearing the appeal. As we have observed in preceding paragraphs that the argument regarding section 43 of the Transfer of Property of Act was fully attended, therefore, the question of giving preference to the affidavit does not arise. Although this Court has ample power to review its judgment, however, that is subject to the Constitutional provisions, i.e., section 42-D of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Order XLVI, Rule 1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978. It will be appropriate to reproduce below Section 42-D of the AJ&K Interim Constitution Act, 1974 and Rule 1 of Order XLVI of the AJ&K Supreme Court Rules, 1978:- 42-D. Review of judgment or order by the Supreme Court.- The supreme Court shall have powers, subject to the provisions of an Act of the Assembly or the Council and of any rules made by the Supreme Court to review any judgment pronounced or any order made by it."
XLVI- (1). Subject to the law and the practice of the Court, the Court may review its judgment or Order in a civil proceeding on grounds similar to those mentioned in Order XLVII, Rule 1 of the Code, and in a criminal proceeding on the ground of an error apparent on the face of the record."
The bare reading of section 42-D of Azad Jammu and Kashmir Interim Constitution Act, 1974 shows that this Court has ample powers to review its own judgment/order subject to the provisions of rules. In furtherance of this Constitutional provision, the Azad Jammu and Kashmir Supreme Court Rules were framed. Order XLVI, Rule 1 of the Supreme Court Rules clearly postulates that this Court, in criminal proceedings, may review its judgment or order on the ground of an error apparent on the face of record while in civil proceedings the Court can review its judgment/order on the grounds similar to those mentioned in Order XLVII, Rule 1 of C.P.C.
14. Here we also like to observe that the review is not meant for rehearing of the appeal rather the same can be reviewed only on the point which has escaped the notice of the Court and it cannot be allowed to be argued like an appeal. The Supreme Court in its review jurisdiction would not sit as a Court of appeal upon its own judgment mainly on the ground that the review petitioner thinks himself to be aggrieved from the judgment under review. The review jurisdiction of the Supreme Court cannot be invoked as a matter of routine to re-hear a case which has already been decided.
This Court in a recent judgment titled Rehmat Ali and others vs. Moula Dad and others (Civil Review No. 24 of 2012 decided on 12.12.2012) has held as under:- " There is no cavil with the proposition that a review can only be made within the parameters determined under Order XLVI, rule 1 of the Azad Jammu and Kashmir Supreme Court Rules, 1978 and Order XLVII, rule 1 of Code of Civil Procedure. The Court cannot go beyond that."
This Court in another judgment titled Muhammad Suleman vs. Accountant General AJK, Muzaffarabad and others (Civil Review Petition No. 03 of 2011 decided on 31.10.2012) has held as under:- " Thus, in our considered view, there is no error or mistake apparent on the face of record. In fact, the petitioner wants reopening, reappraisal and rehearing of the appeal. It is now almost settled that review powers cannot be exercised to rehear, reappraise or reopen the decided cases. There are plethora of judgments on this point. ...."
What has been discussed above, we are not inclined to review our judgment which has been passed after attending all the questions involved in the case. The learned counsel for the petitioners failed to point out any error/mistake apparent on the face of the judgment. Resultantly, finding no force in this review petition the same is dismissed. No order as to costs.