MIRZA VIQAS RAUF , J. This application seeking review of judgm ent dated 9 of May, 2016 is before us in pursuance to order dated 03 of April, 2017 which reads as under:- "Publication in terms of order dated 08th of March, 2017 has been duly published in the daily "Nawa-i-W aqt" but nobody has entered appearance on behalf of respondents No.2 to 4. They are thus proceeded ex-parte. Learned counsel for the applicant submits that the order under review is solely based on the principles laid down in "MUHAMMAD HUSNAIN and another versus ADDITIONAL SESSIONS JUDGE, MULTAN and 2 others" (PLD 2013 Lahore 1). He adds that law enunciated in the referred judgment is alien to the general principles, as appeal is a creation of statute which is a substantial right. Learned counsel contends that no appeal was provided under the Illegal Dispossession Act, 2005, so the order under review is thus not tenable. He further adds that the vires of Section 3 of the Law Reforms Ordinance, 1972 are also not in conformity with the law laid down by the Hon'ble Supreme Court of Pakistan in the case of "ABRAR HASSAN versus GOVERNME NT OF PAKIST AN AND ANOTHER" (PLD 1976 Supreme Court 315) and the provision also offends the mandate of Article 175 of The Constitution of The Islamic Republic of Pakistan, 1973.
In order to properly appreciate the contentions raised by learned counsel for the applicant at the bar, we deem it appropriate to refer this matter to the Hon'ble Chief Justice to appoint a larger benc h for the said purpose. Office to do the needful."
2. Facts in precision necessary for adjudication of instant application are that the applicants filed a complaint under the Illegal Dispossession Act, 2005 (hereinafter referred as "Act") before the learned Sessions Judge, averring therein that by virtue of an agreement to sell dated 21 of January, 2008, they purchased land measuring 10 Kanals 15 Marlas with sale consideration of Rs. 22 lac from one M. Abbas Panwar and in terms thereof, they alsoth rd st took over the possession of the land. This followed a series of litigation on civil as well as criminal side. As per claim of the applicants, respondent No.4 with connivance of respondent No.5 finally dispossessed them from the land in question. The complaint was entrusted to learned Additional Sessions Judge, Lahore, who proceeded to dismiss the same vide order dated 18 of July, 2011. The applicants feeling aggrieved though filed Writ Petition No. 18819/2011 but same was dismissed by the learned Single Judge in Chamber , through order dated 27 of September , 2012, which was questioned by way of an Intra Court Appeal No. 730/2012. The appeal was ultimately dismissed through judgment dated 9 of May, 2016, being hit by proviso to section 3 of the Law Reforms Ordinance, 1972.
3. Record reveals that despite issuance of publication in terms of order dated 8 of March, 2017, nobody had entered appearance on behalf of respondents No.2 to 4, so they were thus, proce eded ex-parte vide order dated 3 of April, 2017.
4. Mr. A. K. Dogar , Advocate while openin g his submissions in support of instant application contended that order under review is not tenable under the law. He added that complaint was filed under the "Act" which was a special law providing no remedy of appeal. Learned counsel submitted that unless right of appeal is provided under the law that cannot be availed. While proceeding further , learned counsel contended that Court trying a complaint under the "Act" is a special Court for all intent and purposes and as such principles laid down in the case of R.M.A.R.A.
Adaikappa Chettiar and another vs. R. Chandrasekhara Thevar (PLD 1947 Privy Council 279) are not applicable. Learned counsel emphatically argued that judgment in the case of Muhammad Husnain and another vs. Additional Sessions Judge, Multan and 2 others (PLD 2013 Lahore 1) is based on wrong assumption of facts. Learned counsel maintained that in absence of any appeal under the "Act", Intra Court Appeal was competent. Places reliance on the cases of Syed Masroor Shah and others vs. The State (PLD 2005 SC 173), Mst. Inayatan Khatoon and others vs. Muhammad Ramzan and others (2012 SCMR 229) and Mian Sharif Shah vs. Nawab Khan and 5 others (PLD 201 1 Peshawar 86 ).
5. After having heard learned counsel for the applicants at considerable length, we have also perused the record.
6. Before pondering upon the questions raised hereinabove, we must express that we are cognizant of the fact that we are seized with a review application which of course runs on a limited scope. A judgment or order can only be reviewed in the following eventualities:- Firstly, on discovery of new and important matter or evidence, which after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed or order was made; Secondly, mistake or error apparent on the face of the record; or Thirdly , for any other sufficient reason.
The above mentioned principles have been outlined in Order XLVII Rule 1 "C.P.C." Part IV Order XXVI of the Supreme Court Rules, 1980 also bestows power of review upon the Supreme Court of Pakistan which runs on the principles enshrined in Order XLVII Rule 1 "C.P.C." While interpreting the scope of review , the Hon'ble Apex Court in the case Regarding Pensionary Benefits of the Judges of Superior Courts ( PLD 2013 SC 829 ) held as under:- "The other objections as to the maintainability are with reference to the powers of this Court under Articles 184(3), 187 and 188 of the Constitution qua applicability of the principles of "stare decisis"; "res judicata"; "locus poenitentiae" and "past and closed transaction". In this regard, when we have confronted the learned ASCs with a simple but important question, that if for any reason the note of the Registrar dated 21-11-2012 is improper and its contents are discarded, but at the same time when the issue in relation to the illegality of a judgment, which has taken the form of a precedent laying down an incorrect law, and its colossal fallout on the public exchequer, which has brought it within the domain of public interest litigation, has come to our notice in any form, whether for some technical reasons alone, the Court should still desist from exercising its jurisdiction vested under Articles 184(3), 187 and 188 of the Constitution, the unanimous answer to this question was in the negative i.e. in exercise of powers under the constitutional provisions, this Court has unlimited jurisdiction to reopen, revisit or review, and for this purpose examine any judgment earlier pronounced by this Court to set the law correct, to cure injustice, save it from becoming an abuse of the process of law and this judicial system."th th th th rd After having an overview of the principles referred hereinabove, it can be inferred that though review has a very limited scope but it does not mean to abdicate the power of review in an omnibus fashion. If in all eventualities, review application is to be dismissed, then what is the fun in keeping the remedy of review in the Statute books.
The intent of Legislature is thus, clear that while incorporating the power of review in the Statute , it is meant that no error in the judgment/order which is so manifest or floating on the surface should be allowed to perpetuate.
7. We when have examined the points raised on the above perspective, we are unanimous that there is a considerable weight in the contentions of learned counsel for the applicants to persuade us to exercise power of review .
8. The first and fore most important ques tion is whether in absence of remedy of appeal in the relevant Statute, it can be held that Intra Court Appeal is hit by the proviso of section 3 of the Law Reforms Ordinance, 1972 (hereinafter referred as "Ordinance"). It is an admitted position that Intra Court Appeal of the applicants was dismissed in the light of principles laid down in Muhammad Husnain 's case(supra) (PLD 2013 Lahore 1). We have observed that while holding that right of appeal and revision exists against the orders passed by the Court under the "Act" within the framework provided under section 9 of the "Act", the Court was also mindful of the fact that right of appeal and revision is the creation of Statute. The judgment in Muhammad Husnain' s case was, however , the outcome of the judgment of a Full Benc h of Privy Council in the case of R.M.A.R.A. Adaikappa Chettiar and another vs. R. Chandrasekhara Thevar (PLD 1947 Privy Council 279). In the said judgment, it was held by the Honourable Judges that:- "The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorized by such rules notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal."
It is thus, evident that the above principles were laid in a case arising out of execution proceedings started in pursuance to a decree passed in a suit instituted under the Civil Procedure Code, 1908 (hereinafter referred as "C.P.C."). During execution proceedings, the Madras Agriculturists Relief Act (V of 1922) was promulgated. The judgment debtor moved an application under sections 8,19 and 20 of the Act ibid read with sections 47 and 151 of C.P.C. praying that execution proceedings be stayed till disposal of the question of the extent of liability for debt under section 19 of the said Act and a declaration that the debt was wholly discharged under section 8 of the Act ibid. As no appeal was provided specifically under the said Act, so the Privy Council laid down the principles referred hereinabove in the light of the said facts and circumstances as the original proceedings ensued from a suit instituted under "C.P .C".
9. In the instant matter, admittedly the proceedings were carried out under altogether a different Statute which was a special law and promulgated for an object and purpose to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers. There is no cavil that no new Courts were established under the "Act" and by virtue of section 2(a) Court of Session was declared as "Court" for the purposes of "Act" but the complaint under section 4 of the Act ibid was in no way equated with the complaint under section 193 of the Code of Criminal Procedure, 1898(hereinafter referred as "Cr.P.C."). Moreover for the purpose of investigation upon a complaint entirely different procedure was provided under section 5 of the "Act". It is thus, manifestly clear from the scheme of the "Act" that it was promulgated to effectively curb the detestable and illegal activities of dispossession and for that purpose very stringent provisions were inserted in the "Act" and entire procedure for enquiring into the trial of such cases was made summary in character . No doubt Court of Session was designated as Court under the "Act" but in view of nature of Statute as a special law, Court under section 2(a) cannot be termed as ordinary Court of Session. We are thus, in agreement that law laid down by the Privy Council in the case of R.M.A.R.A. Adaikappa Chettiar (supra) was not applicable to the case s under the "Act". The judgment in Muhammad Husnain' s case (supra) was thus, not delivered on the basis of true interpretation of law.
The principles enunciated therein are quite alien to the well recognized principles of law. Reliance in this respect can be placed on the case of Mst. Inayatan Khatoon and others vs. Muhammad Ramzan and others (2012 SCMR 229 ).
10. There can be no second opinion that right of appeal is a creation of Statute. Such right cannot be availed unless it is conferred in a clear manner by some enactment or Statute or the rules having the sanctity of some law.
The right of appeal, review or revision is to be specifically provided for and the same cannot arise by implication.
Guidance in this respect if needed can be sought from the case of Syed Masroor Shah and others vs. The State (PLD 2005 SC 173 ), wherein the Honourable Apex Court has held as under:- "Where, by reason of any limitation imposed by statute, charter or commission, a Court is without jurisdiction to entertain any particular action or matter, neither the acquiescence nor the express consent of the parties can confer jurisdiction upon the Court, nor can consent give a Court jurisdiction if a condition which goes to the jurisdiction has not been performed or fulfilled. Where a Court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing"
11. In somewhat similar facts and circumstances, a learned Division Bench of Peshawar High Court in the case of Mian Sharif Shah vs. Nawab Khan and 5 others (PLD 201 1 Peshawar 86 ) held as under:- "(b) Illegal Dispossession Act (XI of 2005)-- ----Ss. 3, 5 & 9---Criminal Procedure Code (V of 1898), S.404---Constitution of Pakistan, Art.199--- Constitutional petition---Illegal dispossession-- Right of appeal, absence of---Provisions of Criminal Procedure Code, 1898, applicability-- Question raised before High Court was whether in view of the provisions of S.9 of Illegal Dispossession Act, 2005, right of appeal provided under Criminal Procedure Code, 1898 was available to cases under Illegal Dispossession Act, 2005---V alidity---T o provide quick justice/relief, right of appeal and revision was deliberately omitted from the provisions of Illegal Dispossession Act, 2005, so that such grave mischief was suppressed without any delay---For such reason, law breakers were deprived of remedy/right of appeal before High Court and finality was given to decision of Trial Courts to accomplish desired objectives---Legislature enacted S.9 of Illegal Dispossession Act, 2005, and provisions of Criminal Procedure Code, 1898, were made applicable to all provisions under Illegal Dispossession Act, 2005; as such the same did not convey intent of law maker conferring right of appeal on aggrieved person---If intention of Legislature was to confer such right, it would have, thus added express words "Including Proceedings before the Court of appeal"---Restricted applicability of Criminal Procedure Code, 1898, could not be given extended meaning and scope by incorporating right of appeal thereunder ---Such right being substantive in nature was always conferred and taken away through express words-- At least one right of appeal was invariably provided against judgment of Trial Court---High Court advised Federal Government to make 'immediate necessary . arrangeme nts for suitably amending' Illegal Dispossession Act, 2005, through Parliament by providing one right of appeal to aggrieved person against final judgment of Trial Court---High Court permitted aggrieved persons to avail remedy by way of maintaining Constitutional petitions against final judgment of Trial Court, till the time law would be amended---High Court directed to fix all such petitions as Constitutional petitions."
12. There is yet another important aspect had there been the intent of Legislature that by inserting Section 9 in the "Act", it was meant to provide the remedy of appeal in the light of provisions contained in "Cr.P.C.", there was no need to amend the Illegal Dispossession Act, 2005 through Act No. XXVIII of 2017 dated 04.07.2017, whereby section 8-A was inserted to the following ef fect:- "8-A. Appeal.--Any order made under sub-section (2) and sub-section (3) of section 3 and sub-section (1) of section 8 shall, within thirty days of the order , be appeal-able before the High Court."
13. After having threadbare discussion, we are of the candid and firm view that in the absence of remedy of appeal in the "Act", Intra Court Appeal should not have been dismissed, being hit by proviso to section 3 of the Law Reforms Ordinance, 1972. For ready reference and convenience same is reproduced below:- 3.-- Appeal to High Court in certain cases.
(1) An appeal shall lie to a Bench of two or more Judges of a High Court from a decree passed or final order made by a single Judge of that Court in the exercise of its original civil jurisdiction
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under clause(l) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this sub section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any court, tribunal or authority against the original order.
(3) No appeal shall lie under sub-section (1) or sub section (2) from an interlocuto ry order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance shall be construed as affecting--
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure, 1908, which was pending immediately before the commencement of this Ordinance ; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972..
(underling supplied for emphasis)
Bare perusal of the above referred provision of law postulates that an appeal under section 3 would not be competent, if the application brought before the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 arises out of any proceedings in which the law applicable provided for atleast one appeal or one revision or one review to any Court, Tribunal or authority against the original order . In the light of settled proposition of law, the dismissal of Intra Court Appeal being hit by proviso to section 3 of the Law Reforms Ordinance, 1972 was unwarranted. We thus, allow this review application and recall the judgment dated 9 of May, 2016, as a result thereof, Intra Court Appeal filed by the applicants shall be deemed to be pending, which shall be decided on merits.