NASIR ASLAM ZAHID CJ.- This petition was disposed of by's short order dated 3.9.1991 and the detailed judgment became available on 18.9.1991. The Bench, which heard and decided this petition, comprised the then Chief Justice, Mr. Justice Saeeduzzaman Siddiqul, and Mr. Justice Salahuddin Mirza. Both the parties sought review of the final judgment by the said Division Bench.
Office had made a reference to the Chief Justice, whether the review applications may be placed before Mr. Justice Salahuddin Mirza, the Ex-Chief Justice having been elevated to the Supreme Court in the meantime. On the said note of the office, place before the Chief Justice on the administrative side, an order was passed that the review applications may be placed for hearing and disposal before Mr. Justice Salahuddin Mirza.
2. In the circumstances, Misc. 4525/92 has been moved on behalf of respondents No. 1 and 2 through Mr. Z.U. Ahmed Advocate. In this application, the stand taken by Mr. Z.U. Ahmed is that the review applications are to be heard by a Division Bench and not by a single Bench comprising Mr. Justice Salahuddin Mirza. The submissions of Mr.Z.U. Ahmed are contained in the application itself and the same are reproduced here "It is humbly submitted that in Chapter 3B Volume V, Rule 5 of the Rules and order of the High Court of Judicature at Lahore, provides that "in cases not provided for by Order XLVII R.5, an application for review of a decree or order shall be heard (a) if the decree or order, review of which is applied for, was passed by a Judge sitting alone, by a Bench of two or more Judges, (b) if the saud decree or order was passed by a Bench of two or more judges as the Bench review of whose decree or an order applied for."
It is relevant to bring in here that Supreme Court Rules also provides the right to be heard by more than a single judge, though any one of the judges may o^ may not be on the bench which heard the matter.
It is respectfully submitted that Civil Procedure Code in general and Order 47 R. 5 in particular when brought into a law, the concept of a constitutional point of view did not exist and therefore to subordinate the right of a party to be heard in a constitutional matter by more than one judges, cannot be abridged by application of order 47 R 5 CPC.
It is further submitted that in matters for stay or injunction Order 39 is not invoked, instead all such remedial actions are obtained under the provision of Section 151 CPC., akin to extra-ordinary inherent jurisdiction of the High Court. In constitutional matters the superior courts do take the principles of CPC in aid of dispensation of justice and not otherwise."
Notice was issued to the Advocate-General to assist the Court on the question raised by Mr .Z.U Ahmed. We have heard Mr. Z.U Ahmed, learned counsel for the private respondents, Mr. Khalilur Rehman, learned counsel for the petitioners, and Mr. Syed Sarfraz Ahmed, Additional Advocate- General, who appeared pursuant to notice issued to the Advocate-General.
2. For decision of the point raised in the application, it is necessary to refer to the provision of Order XLVII Rule 5 CPC., and Rule 5 of Chapter 3B of Volume V of the Rules and Orders of the High Court Judicature at Lahore, Order XLVII Rule 5 C.P.C., reads as follows :- "5. Application for review in Court consisting of two or more Judges. - Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented, and is not or are not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same."
Rule 5 of Chapter 3B of Volume V of the High Court Rules and Orders is also reproduced here : "5. Hearing of review applications. In cases not provided for by Order XLVII, rule 5, and application for a review of a decree or order shall be heard (a) if the decree or order, review of which is applied for, was passed by Judge sitting alone, by a Bench of two or more Judges, (b) if the said decree or order was passed by a Bench of two or more Judges, by a Bench consisting of at least as many Judges as the Bench review of whose decree or order is applied for."
3. Reference to the provisions of Order XLVII rule 5 C.P.C, indicates that in case the said rule is applicable here, there is no difficulty in arriving at the answer to the question raised by Mr. Z.U.
Ahmed and that is that the review applications are to be heard by Mr. Justice Salahuddin Mirza. As has been noted, the judgment was pronounced by a Bench comprising the then Chief Justice, Mr. Justice Saeeduzzaman Siddique, and Mr. Justice Salahuddin Mirza. Mr. Justice Saeeduzzaman Siddiqui, having been elevated in the meantime to the Supreme Court, is not available for hearing of the review applications. Such a situation is covered by Order XLVII rule 5 C.P.C. According to the said rule in case one of the judges is available at the time the review application is filed and comes up for hearing and the other Judge or Judges who heard the case in question is/are n6t available, then any of the said Judges who may be available shall hear the review application and no other Judge or Judges of the Court shall hear the same. If both the Judges who decided the said application were still available at the time the review application is filed and comes up for hearing, the same Judges would hear the review application but in case one of the two Judges is not available having retired or having ceased to be the member of Court, according to rule 5 of Order XLVII C.P.C., the review application is to be heard by the other Judge who still is a member of the Court.
4. Reference to Rule 5 of Chapter 3B of the Volume V of High Court Rules and Orders does not help the submissions of Mr. Z.U. Ahmed as the said rule itself states that, "in cases not provided for by Order XLVII rule 5", but the present case is covered by Order XLVII rule 5. To give an illustration of a case which would not be covered by the provisions of Order XLVII rule 5, a case can be cited where the Judgment was given by two Judges both of whom have ceased to be the Judges of the Court.
Such a case is not covered by Order XLVII rule 5 C.P.C., and in such a case, if a review application is filed, it would be heard at least by two Judges.
5. According to Mr. Z.UAhmed, when Civil Procedure Code was made and Order XLVII rule 5 C.P.C, came into operation, "the concept of a constitutional point of view did not exist and, therefore, to subordinate the right of the party to be heard in a constitutional matter by more than one Judge cannot be abridged by the application of Order XLVII rule 5 C.P.C." The submission does not carry much weight.
Reference may be made to the. Decision of the Supreme Court in the case of Hussain Bakhsh Vs. Settlement Commissioner, Rawalpindi and others, (PLD 1970 SC 1). In that case, the question was whether the High Court had power to review an order made by it in exercise of its power under Article 98 of the 1962 Constitution. The Supreme Court held that apart from the High Courts power to correct errors apparent on the face of the record in exercise of its inherent jurisdiction, the High Court has power under C.P.C, to review its own order made in writ jurisdiction in a civil matter. It was further held that a proceeding under Article 98 of the 1962 Constitution concerning a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and Section 114 of C.P.C, conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under the said Section 114. The Supreme Court was further of the view that the provisions of the Civil Procedure Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdiction in a civil matter, whatever may be the nature of that jurisdiction. The Supreme Court further observed as follows: "Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction.
Judged from these aspects, a proceeding under Article 98 of the Constitution relating to a civil matter is a civil proceeding, although the High Court's jurisdiction in such a proceeding is constitutional jurisdiction of an original kind. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure (see its preamble). By virtue of Section 117 of the Code, a civil proceeding in a High Court is also governed by the provisions of the Code other than the provisions which are specially excepted."
This constitutional petition admittedly relates to a civil matter. The provisions in C.P.C, relating to review including Section 114 and Order 47 have not been excepted in their application to constitutional petition under Article 199 of the Constitution. Accordingly, the provisions of Order 47 Rule 5 C.P.C. Will apply to review applications filed in a constitutional petition. The argument of Mr. Z.U. Ahmed that C.P.C, including Order 47 thereof become law when the concept of a constitutional point of view did not exist, therefore, of no consequence. According to Order 47 rule 5 C.P.C., the review applications for reviewing the Judges, out of whom one Judge is no longer a judge of this Court, are to be heard and decided by the other Judge who is still a member of this Court. It has also been observed that rule 5 of Chapter 3B of Volume V of the High Court Rules and Orders makes provision for cases which are not covered by Order 47 rule 5 C.P.C.
6. The following judgments cited before us may also be considered:
(i) In re Peeram Chenna Reddi (AIR 1942 Madras-23). In this matter, similar question had come up before Madras High Court. Relying upon two judgments of the Calcutta High Court reported in I6 Cal 788 and 9 Indian Cases, 532, it was observed that, in first appeals, the application for review was heard and decided only by the Judges who heard the appeal or, where one of them is absent, by the other Judge sitting alone and this was also the invariable practice of that court. This judgment supports the view that we have taken in this order,
(ii) Jagat Chandra Acharji and another Vs. Syoma Charan Bhattacharjee and others (AIR 1919 Calcutta 1033 (2)). In this judgment, it was held that during the absence on leave of one of the two Judges of a High Court constituting a Division Bench, the other Judge has no jurisdiction to hear an application for review of its decree unless the former Judge has ceased to be the member of a court or is precluded by absence or other cause, for a period of six months next after the application, from considering the decree to which the application refers. This Judgment also supports the view that, in the present case, as one of the two Judges of the Bench disposing of the petition has ceased to be a member of this Court, the review application is to be heard ad decided by the other Judge who is available:
(iii) Narayanan and others Vs. Raman (AIR 1953 TRA-COCHIN 306). It was held in this case that where one of the Judges constituting Full Bench had decided the revision petition was not attached to the Court when the review application was filed and the other two Judges who had ordered issue of notice also ceased to continue to be attached to the Court, a Full Bench consisting of other three Judges was quite competent to hear the review application. This Judgment also does not support the contention of Mr.Z.U. Ahmed; This was a case which was not covered by Order 47 rule 5 C.P.C, as none of the Judges who had decided the revision petition were available having ceased to be attached to the Court.
7. We also do not subscribe to the view of Mr. Z.U. Ahmed that the application of Order 47 rule 5 C.P.C, to the present case will act in aid of injustice. In our view, the hearing of a review application by one Judge of the Bench which decided this petition. The other Judge having ceased to be the member of this Court-will be in accordance with law and that it would not be an unjust exercise of power.
Misc. 4525/92 is disposed of accordingly. CMA -5013/92 also stands disposed of.
The review applications filed by the parties may now be placed before Mr. Justice Salahuddin Mirza for decision.