1. MUHAMMAD AZAM KHAN, C.J.---The instant review petition arises out of the judgment passed by this Court on 10th May, 2011, whereby Miscellaneous Application filed by the petitioner during the pendency of appeal titled Ch. Maqbool Raza vs. Ashfaq Ahmed and others, for proper orders has been dismissed.
2. 2.The review petition arises in the circumstances that the appeal titled Ch. Maqbool Raza v. Ashfaq Ahmed and others was heard by a Bench consisting of Mr. Justice Syed Manzoor Hussain Gillani and Mr. Justice Kh. Shahad Ahmed.The difference of opinion arose between the Judges.The matter was referred to the learned Chief Justice vide order dated 30th December, 2009.The Deputy Registrar on 22nd January, 2010 recorded the order that difference of opinion has arisen in the above titled appeal.The matter was to be placed before the Hon'ble Chief Justice on 14th March, 2010.The file was not placed before the Hon'ble Chief Justice for a pretty long time and it was placed before the Chief Justice on 18th January, 2011.The Chief Justice of the time ordered that the appeal be heard by Mr. Justice Kh. Attaullah Chak. In the light of provisions of section 42(13)(c) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter to be referred as Act) the petitioner herein, filed an application for proper orders on 15th February, 2011 to the effect that difference of opinion has arisen between the Judges of the Court and none of the Judges available is able to hear the case, therefore, the judgment of the High Court be deemed and declared to be the judgment of this Court.The application was dismissed by the full Court on 10th May, 2011.Hence this review petition.
3. 3.Mr. Khalid Rasheed Ch. counsel for the petitioner, has raised first ground for review that at the time of arguments, he relied upon the judgment of this Court titled Azad Government and 3 others v. Mujahid Hussain Naqvi and another (2009 SCR 447), but the Court while deciding the application has not considered the referred case. He argued that he has filed an affidavit to this effect. No counter-affidavit has been filed, therefore, it is admitted position that the authority was referred but not considered and discussed by the Court. This is an error apparent on the face of record. The learned counsel further argued that at the time of decision of appeal, the learned Chief Justice of the time was available in the Court but he declined to hear the case, therefore, in the light of provisions of section 42(13)(c) of the Act, the judgment of the High Court should have been declared to be the judgment of this Court.He further contended that as in the present case Muhammad Reaz Akhtar Chaudhry, Chief Justice of the time, declined to hear the case, therefore, while recalling the judgment under review, the judgment of the High Court be treated as the judgment of this Court and an order to this effect may be passed.
4. 4.Sardar Muhammad Azam Khan, appearing for respondent No.1, argued that the review is not justifiable on the ground that the parties are not satisfied from the judgment or a different interpretation of law is possible.Muhammad Reaz Akhtar Chaudhry, Chief Justice of the time was available as 3rd Judge at the relevant time.He never declined to hear the case.The judgment under review passed by the full Court on the application is perfectly legal.
5. 5.We have heard the learned counsel for the parties and perused the record.The first contention of Mr. Khalid Rasheed Chaudhry, counsel for the petitioner, for acceptance of review petition is that the judgment in the case titled Azad Government and 3 others v. Mujahid Hussain Naqvi and another (2009 SCR 447) was referred by him but has not been considered and discussed.Although, from perusal of the order recorded in the application, the referred authority is not mentioned in the order but we are aware of the fact that before the decision of the application filed under section 42(13)(c) of the Act, the judgment in Mujahid Hussain Naqvi's case was set aside, while accepting review petition on 9th May, 2011.It will be useful to reproduce para 8 of the said judgment, which is as under:-- "8.It is evident from subsection (13)(c) of section 42 of the Interim Constitution Act, that in case of difference of opinion between the Judges, the case shall be placed for hearing and disposal beforeanother Judge to be nominated by the Chief Justice.In the case in hand, proviso to this section is not attracted for the reason that admittedly, another Judge was available in this Court to hear and dispose of the appeal of respondent No.1 at the time when difference of opinion between two learned Judges of this Court took place on 5-10-1999 but respondent No.1 deposed no confidence in the learned Judges of that time.It can easily be assumed that respondent No.1 opted not to argue his case before them.Even Mr. Justice Muhammad Reaz Akhtar Chaudhry, the learned Chief Justice (as his lordship then was) was also available as another Judge and his lordship could hear and dispose of the appeal as another Judge."
6. The argument of the learned counsel that the case titled Azad Government and 3 others v. Mujahid Hussain Naqvi and another (2009 SCR 447) was referred but not considered has no force because the view of the single Judge in the said judgment was set aside by the Full Court in the case titled Azad Government of the State of Jammu and Kashmir and others v. Mujahid Hussain Naqvi and another (Civil Review Petition No.20 of 2010 decided on 9-5-2011).
7. 6.The learned counsel has argued that at the time of difference of opinion between two Judges, Muhammad Reaz Akhtar Chaudhry, Chief Justice of the time was available as 3rd Judge but he declined to hear the case.This point was thoroughly argued by the counsel for the petitioner and after considering this argument, the application was dismissed.The Court passed a detailed and speaking order on the application for the petitioner.The scope of section 42(13)(c) of the Act, was examined in detail.It will be useful to reproduce relevant portion of para 7 of the judgment under review which is as under:-- "After considering the arguments and authorities hereinabove mentioned and the facts of the case, we are of the considered view that the provisions of the Constitution particularly sub-clause "C" are not antinomy rather there is clear harmony dealing with the different eventualities.The intention of the legislature is clear that in case of the difference of opinion between the members of Bench and majority cannot be formed the case or appeal is to be placed before 'another' Judge to be nominated by the Chief Justice and if the other Judge is not available and if available is not able to hear the appeal, the judgment of the High Court shall be deemed to be the judgment of the Supreme Court.In that case the appeal shall be disposed ofundertheprovisotoclause'C'ofsubsection(13)of section 42.Another eventuality for application of proviso is provided in the main clause 'C' which clearly lays down that in case of difference of opinion between the Judges hearing the appeal, the Division Bench has to refer the case to the third Judge, who is to be nominated by the Chief Justice.In the present case, this power was exercised by the Division Bench on 30-12-2009, when it referred the case to the learned Chief Justice of the time.The Deputy Registrar of the Court clearly recorded that the matter shall be placed before the Hon'ble Chief Justice for proper orders on 4-3-2010. The record reveals that on 4- 3-2010, Mr. Justice Reaz Akhtar Chaudhry was the Chief Justice of the Supreme Court.He had to refer it to another Judge and admittedly there was no other Judge who could hear the appeal.The fact of the matter, however, remains that he could himself being another Judge available and able to hear the case dispose of the same under law.The file remained in the Registry office till 18-1-2011 when I being the Chief Justice of the Supreme Court entrusted the appeal to Mr. Justice Attaullah Chak for hearing and disposal.Another point which needs consideration is that the proviso to clause 'C' cannot be attracted unless two eventualities are not available.One is that there should be no Judge when difference of opinion arises and the second is that if another Judge is available but he is unable to hear the case.It means that if there is a Judge able to hear the case, the proviso to clause 'C' will not be attracted.It is proper to mention here that an artificial eventuality cannot be created by the parties, which suggests that the judgment of the High Court be deemed to be the judgment of the Supreme Court.Mr. Justice Reaz Akhtar Chaudhary was very much there and was able to hear the case.It cannot at all be held that there was no Judge available and unable to hear the appeal filed by Ch. Maqbool Raza................"
8. It may be observed that under Order XLVI of the Supreme Court Rules, 1978, in civil matters, the review is permissible on the grounds similar to those mentioned in Order XLVII, rule 1 of the Civil Procedure Code. Order XLVII, C.P.C, provides that the Court may review its judgment or order on the ground of an error apparent on the face of record or on discovery of some new evidence or new facts.The remedy by way of review petition is different from that of appeal.The review cannot be granted on the ground that a party is not satisfied from the judgment or a different view of the matter is also possible or a different interpretation of law can be made. The review in civil matter is permissible only on the ground referred to above.Our this view finds support from a case titled Ch. Zahid Hussain v. Khalid Iqbal and 3 others (2009 SCR 192) wherein it was held as under:--- "It may be observed that scope of review is very limited.The jurisdiction vested in the Court for review of judgment is very limited and quite different from that of appeal and case cannot be reopened only on the ground that according to estimation of the learned counsel for the petitioner another interpretation of law is possible."
9. In another case titled Muhammad Riaz and others v. Pervaiz Mehndiand72othersPLD2006SC(AJ&K)5,itwasheldas follows:--- "It may be stated at the very outset that the review is not a regular remedy.However, the Court has the powers and is in fact obliged to review an order which suffers from patent error which is floating on the face of record.We admit that instead of being stuck to an error, the Court should correct itself if it has gone wrong.However, the error or wrongs ought to be substantial and speaking.A view found by the Court by interpretation of the law and elucidation of the facts, according to its perception, would not be deemed to be wrong, simply for the reason that view contrary to it could also be taken or it was possible to be taken.As far as possible the Courts have to meet the ends of justice and carry out the purpose of all contemporary laws, not by conceding to the contention of the parties but according to due appreciation of law and facts the contentions and views of the parties are to be considered compassionately, but the decision has to be in the light of law which Court perceive."
10. In another case titled Malick Zafar Ali Awan and 3 others v. Muhammad Riaz Khan and 7 others (2011 SCR 96), it was held by this Court that:-- "It may be observed that the Court may review its judgment on the ground of an error apparent on the face of record or in civil proceedings or on any ground similar to those mentioned in Order XLVII, Rule 1, of the Civil Procedure Code.This Court in a number of cases has held that the review is not permissible on the ground that a party is not satisfied from the judgment or wants a different conclusion than the one reached by the Court."
11. In another case titled Syeda Tasneem Kazmi v.Education Department andothers (2011 SCR 155), it was observed by this Court as under:-- "The petitioner wants the decision from this Court of her own choice which is not permissible under law.The petitioner wants a new order on facts which is not permissible in review jurisdiction."
12. Similarly in a case titled Allah Ditta and others vs. Mehrban and others (1993 SCR 18), it was held as under:-- "Even otherwise the mere incorrectness of a decision on a particular issue or a question falling for determination in case can never be a ground for review as to permit a review on the ground of such incorrectness would amount to granting the Court a jurisdiction to hear appeal against its own judgment.The review of the judgment cannot be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision made therein."
13. From the survey of case-law it can safely be concluded that under Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, the Court, in criminal proceedings, may review its own judgment or order if there is an error apparent on the face of record and incivilproceedingsonthegroundssimilartothosementionedin Order XLVII, Rule 1 of the Civil Procedure Code.The scope of review is very limited and the whole case cannot be reopened merely on the ground that in the estimation of one of the parties another interpretation of law was possible or a party is dissatisfied with the conclusion drawn by the Court and the party seeking review wants a different conclusion.The Courts have to meet the ends of justice as far as possible and to carry out the purpose, they have to appreciate the law and facts of the case.The law, facts of the case, contentions and views of the parties are to be considered but the decision has to be made in the light of law which the Court perceives.
14. 7.As it has already been observed in the judgment under review that at the time of difference of opinion Mr. Justice Muhammad Reaz Akhtar Chaudhary, Chief Justice of the time was available as 3rd Judge, he never declined to hear the case, therefore, the proposition is covered under main provision of section 42(13)(c) of the Act and the proviso to the section is not applicable in the case.
15. The result of the above discussion is that finding no force in this review petition, it is, hereby dismissed with no order as to costs.