' BASHARAT AHMAD SHAIKH, J.---This petition has been filed to seek review of judgment of this Court in Civil Appeal No,66 of 1998 titled Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and others by which the appeal was dismissed on the short ground that certified copy of the writ petition was not filed with the petition for leave to appeal in this Court which was violation of a mandatory rule.
By the same order the application "for extension of period and condonation of delay" moved three days after the conclusion of the arguments in the appeal was also dismissed. The main ground urged. In the review petition is that the lapse stood cured in the circumstances of the case when leave to appeal was granted.
2. Facts forming background of this petition are that judgment of the High Court disposing of three writ petitions was announced on 17th June, 1998, Petition for leave to appeal was filed on 25th June, 1998. After the grant of leave an objection was raised by the learned counsel for respondent No,1 that certified copy of the writ petition filed in the High Court had not been filed in this Court which was a violation of Order XIII, rule 3(1)(ii) of the Azad Jammu and Kashmir Supreme Court Rules which provision is mandatory in nature. It was prayed that the appeal may be dismissed for the aforesaid omission. Reliance was placed on three reported judgments of this Court, namely, Government of Pakistan and another v. Tariq Hussain Farooqui and 3 others (PLD 1984 SC (AJ&K)
47), Allah Ditta and others v. Sher Ahmed Khan and others (1993 SCR 325) and Rafique Shah v.
Muhammad Aslam and others (1993 SCR 344). In all these judgments it was held that the rule under reference was a mandatory provision and its violation entailed dismissal of the appeal and appeals were dismissed for that short reason. Subsequently it transpired that the same view had been taken by this Court in Muhammad Amin Shah v. Mehtab Din and another PLD 1996 SC (AJ&K)
11, Civil Appeal No,62 of 1995 titled Mst. Alif Noor and others v. Mst. Gulab Jan and others, decided on 3rd February, 1996 and Civil Appeal No,92 of 1997 titled Khabeer-ul-Haque v. Lal Badshah and others decided on 15th May, 1998).
3. During the arguments in the appeal, the position taken by the learned counsel for the appellants, as recorded in the judgment sought to be reviewed, was as follows:-- ' Mr . Abdul Maj id Mall ick, the learned counsel for the appellant, did not dispute the proposition that the provision under discussion, namely, Rule 3 of Order XIII of the Supreme Court Rules is mandatory and its violation entails dismissal of the appeal. He, however, vehemently contended that above rule only related to petitions for leave to appeal filed against an appeal before the High Court and has no application to petitions for leave to appeal arising out of a writ petition. It was contended by the learned counsel that the requirements of the relevant rules was that grounds of appeal before the High Court and the refusal of grant of certificate under section 42(11) of the Azad Jammu and Kashmir Interim Constitution Act are to be filed with the petition for leave to appeal."
' This plea was rejected after somewhat detailed discussion spreading over many paragraphs.
4. The learned counsel for the appellants also filed an application "for extension of period and condonation of delay" in which it was prayed that "the time for lodging the certified copies of the writ petition be enlarged and the delay may be condoned in the interest of justice". It was stated that when the petition for leave to appeal was filed in this Court "the copies of the writ petitions secured, within the time of limitation, were misplaced and the same could not be appended with the petition". The application was dismissed after detailed discussion. It was held that from the facts it was clear that it was a case of gross negligence, if not of contumacy. Observation about contumacy was based on the fact that two notes were written by the office of this Court pointing out the omission about filing the requisite copy and it was also pointed out that it was a "mandatory document" and also the fact that in the concise statement filed on behalf of respondent No,1 this omission was duly pointed out and it was pleaded that it was a violation of mandatory provision entailing dismissal of the appeal but no steps were taken by the appellants to meet the situation. In the judgment sought to be reviewed it was also held that "the fact that the copies were obtained and were misplaced" did not make out a case of condonation which can only be granted if sufficient cause is shown. It was also pointed out that in case of condonation, delay of every day has to be explained but in the application moved by the appellants no attempt had been made to do so.
5. Now in the review application it has been urged that lapse, if any, stood condoned when leave was granted by the Court after becoming cognisant of the fact that copy of the writ petition had not been filed with the petition for leave to appeal. The argument can be better appreciated if the relevant ground is reproduced. It runs as follows:-- "(ii) that this Hon'ble Court has referred to Order, dated June 25, 1998, but orders, dated July 3, 1998 and July 20, 1998, seemingly escaped the notice of this Hon'ble Court. The same reads as under:-- 'Ch. Muhammad Azam Khan, Advocate, has filed 'Vakalatnama', on behalf of respondent No, 1 . The counsel for the petitioner seeks time for filing remaining A.D. Receipts. He is directed to file the same by the next date. To come up on July 20, 1998.
(Sd.)
Assistant Registrar Mirpur, 3-7-1998.'
'The file is complete. It shall be placed before the Court for hearing on July 23, 1998. Notice to the concerned.
(Sd)
Assistant Registrar Mirpur, 20-7-1998.
Once the Assistant Registrar has observed that the file was complete and observed that the same be placed before the Court for hearing on July 23, 1998, this Hon'ble Court was pleased to grant leave and order of July 23, 1998 reads as follows:-- "Arguments heard Order announced."
' The lapse, if any, stood condoned by order granting leave which was given in the presence of the parties and the same could not be opened to dig out the lapse in compliance of technicalities visualised in Order 13, Rule 3;"
6. As seen above, in the judgment under review a cause was shown which was rejected resulting in dismissal of the application for extension/condonation of time. In the review petition now the appellants are raising altogether a new ground 'Inch has been reproduced above. It is well-settled law that a new ground cannot be raised a review petition. Power of review vested this Court is exercisable, inter alia, on count of some mistake or error apparent on The face of the record or for any other sufficient reason. If a point is not urged at the me of decision of the appeal there is no question that there should be any error in preceding the point. It is for this reason that The consistent view of this Court as well as The Supreme Court of Pakistan is that a new un cannot be agitated in a review petition. Any authority is needed on this point deference may be made to our latest judgment which is reported as Dr. Kh. Mushtaq Ahmad Azad , Government and 3 others 1999 P.Cr. LJ 81 in which it was observed that now ground can be taken in a review petition. The review petition, therefore, tails dismissal on this short ground. But we ye decided to examine the merit of the point as well.
7. We may first observe that. As seen 'above, the appellants earlier moved an application for condonation which impliedly Leant that default had taken place but now the plea is that default had already been condoned. Thus, the new plea is totally inconsistent with the position previously adopted by the appellant. This in itself is a ground on which the review petition should be dismissed.
8. Dr. Khalid Ranjha, the learned counsel for the petitioners, vehemently argued the ground extracted above. Explaining the point he submitted that this Court, like other Courts, is vested with powers. To condone lapses in respect of procedural matters so that technicalities do not override merits of a case. He contended that the power of condonation is generally exercised expressly but it can also be exercised by implication. He submitted that the present cage is an example of an exercise of power by implication. He relied on the note written by the Assistant Registrar of the Court, reproduced above, on 20th July, 1998 in which he stated that file was complete and contended that when subsequently Court granted leave to appeal it has to be assumed that the lapse, if any, had been condoned by implication because otherwise the Court should have thrown out the case due to the aforesaid lapse. Dr. Khalid Ranjha contended that after grant of leave, Order XIII, dealing with the petitions for leave to appeal, ceases to be applicable to the case and then onwards Order XII, dealing with appeals, becomes applicable which does not require filing of grounds of appeal. The learned counsel relied on Muhammad Amin Shah v. Mehtab Din and another (PLD 1996 SC (AJ&K) 108) in support of his contention about implied condonation.
9. To begin with, the note written by the Assistant Registrar on 20th July does not advance the petitioners case. In the note he said that the "file was complete" which indicates that all procedural requirements had been fulfilled. In presence of this note there was nothing unusual or out of the ordinary course for the Court to hear the petition for leave to appeal on merits because that is the normal course. If the note had said that the file was not complete because mandatory copies had not been filed then possibly the argument, whatever its merit, advanced by the learned counsel for the petitioners might have been available to him but the note mentioned above did not say that.
Even otherwise the note was written in continuation of the earlier note written on 3rd July in which Ch. Muhammad Azam Khan was directed to file A.D. Receipts. The copy of writ was not mentioned.
On 20th July the file was declared to be complete in the context of A.D. Receipts and not in respect of the writ petition.
10. Be that as it may, the legal position is clear that power of condonation or relaxation vested in this Court under Order XIII cannot be deemed to have been exercised by implication. It has never been held to be so and Amin Shah's case, relied upon by the learned counsel, does not relate to Order XIII of Supreme Court Rules but is a case under Order XLI of Civil Procedure Code. We will discuss this case a little later. The power of the Court to condone delay or excuse the parties from compliance of any of the requirements of the Supreme Court Rules is dependent on existence of sufficient cause or is relatable to the requirements of the justice of the case. The relevant provisions are contained in Rules 1 and 3 of Order XLIII of Supreme Court Rules which are worded as follows: "(1) The Court or the Chief Justice or the Judge thereof, may, for sufficient cause shown, excuse the parties from compliance with any of the requirements of these Rules, and may give such directions in matter of practice and procedure as it shat consider just and expedient.
(2)
(3) The Court may enlarge or abridge any time appointed by these rules, fixed by any order enlarging time for doing any act or taking any proceeding upon such terms (if any as the justice of the case may require, and any enlargement may ordered, although the application therefor is not made until after the expiration of the time appointed on allowed."
' It will be seen that the Court has the power to condone or relax delay and the excuse the parties from compliance with and of the requirements of the Rules for sufficient cause shown or to meet requirements of justice. It means a factor mentioned above must exist and then the Court can exercise one of the powers mentioned above. The argument that this Court should be presumed to exercise powers under Order XIII fails take note of the fact that no cause, sufficient or otherwise, and no requirement of justid had been shown when leave to appeal was granted in the case.
Therefore, there was to occasion for the Court to consider the question whether appellants may be excuse from compliance of the mandatory requirements of filing copy of the were petition or whether time may be extended Our view is that rules 1 and 3, as worded clearly exclude the possibility that there case be any relaxation unless a cause is shown and there can be no condonation of time unless is shown to the Court that justice so demand It is only then that this Court can exercised these powers. The provisions presuppose that the Court has applied its mind and consciously reached the conclusion that power given by Order XIII may be exercised.
11. Dr. Khalid Ranjha also submitted that Order XIII of the Supreme Court Rules dealing with petitions for special leave to appeal in civil proceedings ceases to be applicable after grant of leave and from that stage onwards Order XII comes into operation. On this point there is a judgment of this Court in which this argument was repelled. We may quote from Khabeer-ulHague v. Lal Badshah and others (Civil Appeal No, 92 of 1997 decided on 15-5-1998):-- "It may be stated that in case of petition for leave to appeal, the matter is governed under rule 3 of Order XIII of the Supreme Court Rules, Order XII, rule 5 of the Supreme Court Rules is attracted only in case of direct appeal and not in cases where the appeals are filed after seeking leave to appeal.
It is correct that in the title of Order XII a reference has been made to section 42(11) and (12) of the Azad Jammu and Kashmir Interim Constitution Act but a title is not a good guide for interpreting the specific provisions of a statute. Even otherwise, if there is a special provision governing the matter, the general provisions would stand excluded. Under rule 5 of Order XII of the Supreme Court Rules, the certified copies of the decree of the High Court and the trial Court must accompany the memorandum of appeal. If there is no direct appeal and a petition for leave to appeal is necessary, the said provisions are not attracted. The petition for leave to appeal must be accompanied by the documents envisaged under rule 3, Order XIII."
12. The facts of the Amin Shah's case, relied upon by Dr. Khalid Ranjha, were that the second appeal filed in the High Court was dismissed on the ground that the judgment of the trial Court had not been filed with the second appeal. This judgment was upheld by this Court, but second case cited on behalf of the respondents namely Ali Haider Shah v. Ghulam Muhammad (1981 CLC SC (AJ&K)
359) and Sawar Khan and 2 others v. Noor Alam and another (1985 CLC 1082) were held to be distinguishable. In those cases the Reader had noted that judgment of the trial Court was not filed with the appeal but the High Court issued notice to the opposite party and this fact was treated to be an implied dispensation, in respect of the copy of the judgment of the trial Court. Amin Shah's case was decided in light of the provisions of the Civil Procedure Code. It is laid down in Rule 1(1) of Order XLI of Civil Procedure Code as follows:-- "1. Form of appeal. What to accompany memorandum.--- (1) Every appeal shall 'be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
It will be seen that under this provision a memorandum of appeal must be accompanied by a copy of decree appealed from and the rule reproduced above does not say that the Appellate Court can dispense with that requirement. What can be dispensed with by the Appellate Court is filing of a copy of the judgment on which the decree is founded because it is well-settled that filing of a decree is mandatory. The power vested with the Appellate Court to dispense with the judgment on which a decree is based is not subject to any condition like existence of a reasonable cause etc. As is provided in Order XIII of the Supreme Court Rules. Since Amin Shah's case is based on rule 1(1) of Order XLI of Civil Procedure Code it does not apply to an altogether different provision contained in the Supreme Court Rules.
13. It may also be pointed out that in the application moved by the appellants for enlargement and abridgement was elaborately discussed and a clear finding was given that the ground put forward by the appellants was devoid of any merit because no sufficient cause existed. It was also held that in fact it was a case of "gross negligence, if not of contumacy". In presence of this clear finding, the appellants cannot be heard to say that there was automatic relaxation of the rules or enlargement.
14. Before parting with this case, we may mention that it was also submitted by Dr. Khalid Ranjha that in the precedent cases mentioned in the judgment sought to be reviewed, when it was held that the copy of the application or appeal before the High Court must be filed in this Court the appeals were not dismissed on this short ground but merits were also adverted to. The learned counsel is clearly in error in making this submission because all out of six precedent cases mentioned in the judgment sought to be reviewed, KLabeer-ul-Haque's case was found to be inapplicable while in all other five cases mentioned below, appeals were dismissed on the sole ground of violation of Rule 3 of Order XIII of the Supreme Court Rules. The cases were:--
(1) Government of Pakistan and another v. Tariq Hussain, Farooqui and 3 others (PLD 1984 SC (AJ&K) 47).
(2) Allah Ditta and others v. Sher Ahmed Khan and others (1993 SCR 325).
(3) Rafique Shah v. Muhammad Aslam and others (1993 SCR 344).
(4) Mst. Alif Noor and others v. Mst. Gulab Jan and others (Civil Appeal No,62 of 1995).
(5) Khabeer-ul-Haque v. Lal Badshah and others (Civil Appeal No,92 of 1997).
' In fact these are the cases which led to the dismissal of the appeal filed by the petitioners because we cannot create an exception for the present petitioners.
Upshot of the foregoing discussion is that there is no force in this review petition and we order its dismissal in limine.