Writ Petition No,114 of 1994 of the petitioner was decided on merits in his absence as neither the petitioner nor his counsel appeared before this Court on date of hearing i,e, 16-10-1994. The petitioner has moved an application under section 151, C.P.C. Read with Order 41, Rule 19 of C.P.C. For its restoration alleging that the petitioner's counsel was not intimated about the next date of hearing by my learned brother Mr. Justice Malik Muhammad Qayyum, J.
2. The question arises out of the application whether the Court has power to review an order made by it in exercise of its power under Article 199 of the Constitution of 1973.
3. The learned counsel for the petitioner contended that in default of the petitioner the writ petition ought not to have been decided on merits on 16-10-1994. The Court either ought to have adjourned the hearing or ought to have dismissed it in default under Rule 17 of Order 41, C.P.C. And the Court has no jurisdiction to dismiss it on merits.
4. Learned Deputy Attorney-General has controverted the arguments of learned counsel for the petitioner on the plea that there is no corresponding provision in the Constitution with regard to High Court's jurisdiction to review its decision; further contended that as the matter raised in writ petition is of criminal nature and section 369, Cr.P.C. Debars the Court to review its own order.
5. I have heard the learned counsel at length and have gone through the citations cited at the bar by them.
6. The Civil Procedure Code regulates to civil proceedings and Criminal Procedure Code regulates to criminal proceedings. The nature of proceeding does not necessarily depend on the nature of the jurisdiction of the Court involved. In order to determine whether a proceeding is of a civil nature or of criminal nature; it is necessary to examine the question raised in the proceedings.
7. As relied upon by the learned counsel for the petitioner in case Hussain Bakhsh v. Settlement Commissioner, Rawalpindi PLD 1970 SC 1, that a proceeding taken in the enforcement of a civil right is a civil proceeding; whatever may be the source of the Court's jurisdiction involved for enforcement of such a right. A civil proceeding in a Court of civil jurisdiction is governed by the Code of Civil Procedure 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. A proceeding under Article 98 of the Constitution of (1962) concerning a civil nature being a civil matter being a civil proceeding relating to the High Court's original civil jurisdiction and section 114 of the Code conferring powers of review not having been made and applicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court on its writ jurisdiction will be available to it under the said section 114 of that section is otherwise applicable.
8. Undoubtedly, the issue involved in the writ petition is of criminal nature; in view of the law laid down by their Lordships, in Supra case; the proceedings in writ petition being of criminal nature, the provision nature, the provision of Criminal Procedure Code are applicable as a matter of principle.
As no provision is provided in the Constitution with regard to the High Court's jurisdiction to review its own order made in writ jurisdiction under Article 199 and even section 369, Cr.P.C. Also debars to review its own order; in this regard reliance is placed upon R.H. Brightling Manager American Express Co. (Inc.), Lahore v. Saeed Ahmad Chaudhry 1968 PCr.LJ 1818(2), in which it was held; `that the High Court is not competent to review its own order if passed in criminal jurisdiction; similarly in case Juan Sullivan v. The State 1971 SCM R 618, wherein it was held, that section 369, Cr.P.C.
Precludes the High Court from reviewing its own order.
9. I am of the view that the application being without merit and is dismissed. Having regard to the intricacy of the point of law involved with no order as to costs.