' RASHEED A. RAZVI, J.---This was a Constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which was dismissed on 19-12-1997 by a Division Bench comprising of Hon'ble Chief Justice and Justice Abdul Hameed Dogar. For the present controversy it is not relevant to narrate the facts of the petition.
2. On 10-1-1998 a review petition (Miscellaneous No,95 of 1998) was filed against the final order dated 19-12-1997 by the petitioner which came up before the same Bench for hearing on 19-1-1998 when the following order was passed: "Petitioner in person.
' Petitioner wants that this review application, which has been taken up in Chambers should be heard in open Court.
' We would not like to hear this review application. Put it up before another Bench."
3. Through an administrative order dated 12-2-1998 passed by Hon'ble Chief Justice of this Court, a Special Division Bench was constituted comprising of myself and Justice Muhammad Roshan Essani to hear this review petition for the reasons disclosed in the report of the Superintendent, Cause Roster. At the time of constitution of this Bench by the learned Chief Justice, it was observed by his lordship that the matter be heard on a Saturday convenient to the Special Division Bench.
Accordingly, we ordered fixation of hearing of this review petition on 28-2-1998 at 11-00 a.m., when again, as of 19-1-1998, the petitioner insisted that he be heard in open Court. He was asked whether any adversary was involved in this matter to which he replied in negative. He was further asked to show how he will be prejudiced if the case is heard in the Chamber on Saturday when it is not a Court day but reserved for writing judgments. However, he was not able to render proper assistance to this Court. In such circumstances and keeping in view the provisions of Order XLVII, Rule 5, C.P.C. And the fact that the learned Members of the earlier Division Bench are available, following order was passed:-- "Both the learned Judges are still available on the Bench. As a matter of propriety they may be justified to express their inability to hear this review petition but the Rules provide that a review petition is to be heard by the same Bench or the Judge whose order is under review. In the peculiar circumstances of this case, the ques:ion which emerges for consideration is whether the propriety is to take precedence over Rules or otherwise. The facts of this case have special bearing. We would, therefore, like to be satisfied on the point whether in view of Rule 5 to Order XLVII, C.P.C. This Bench is competent to hear this review petition. In addition, whether the rule laid down by Hon'ble Supreme Court in the case of Mst. Nisar Bibi and another v. Salahuddin PLD 1990 SC 76 is available.
Besides, whether a party, as a matter of right, could insist upon the Judges, without having any reason or justification to conduct hearing in open Court, particularly on a day which is not a Court day and is exclusively meant for judgment writing. All these questions need detailed consideration.
We are of the view that petitioner would not be able to satisfy this Court on such important questions of law. We would like to ask Mr.Muhammad Ali Sayeed, Senior Advocate, Supreme Court (now President, Sindh High Court Bar Association, Karachi) to assist this Court by advancing his valuable views. To come up on 14-3-1998."
4. Mr. Muhammad Ali Sayeed, Advocate, Supreme Court who is the present President of the Sindh High Court Bar Association, Karachi was kind enough to appear and offered his assistance in response to the notice. On 14-3-1998 we had waited till 1-00 p.m. But the petitioner neither appeared nor sent any intimation; as a result, we heard Mr. Muhammad Ali Sayeed at length who had also filed his written arguments. We would like to first deal with the question whether a party could insist upon any Judge to hear his case in the open Court without assigning any good reason.
Mr. Muhammad Ali Sayeed argued that the practice and usage prevailing in the Courts of the Sub- Continent of Indo Pakistan are different than the English and U.S. Courts. He has referred to the case of Scott v. Scott (1913) AC 17 which is a decision from the House of Lords where it was held that the Court of Appeal in England had no power to sit in Chambers unless it is shown that otherwise ends of justice will be liable to be defeated. He further argued that it is the established practice of this Court that often cases before Special Division Bench are heard on a miscellaneous day in Chamber; and that such practice was never held to be violative of any provision by either this Court or by the Hon'ble Supreme Court. To conclude, he contended that a Court of law has an inherent power to regulate its own procedures saved in so far as it is not controlled by enacted law.
However, some exceptions to this rule was highlighted in the case Scott v. Scott (supra) which are not relevant for the present controversy.
5. There is no clear provision in the Code of Civil Procedure, 1908 or in the Sindh Chief Court Rules, appellate or original side in reference to a High Court which may prohibit the hearing of cases in Chamber or which may restrict hearing of cases only in open Court. However, there is one exception to this observation which is provided in Rule 4 to Order XVIII, C.P.C. Which provides for the recording of evidence of the witnesses in open Court in the presence and superintendence of the Judge. Mr. Muhammad Ali Sayeed has referred to para.703 of Halsbury's Laws of England, IVth Edition, Volume 10 (page 315) which reads as follows:-- "703. Procedure.--A Court exercising judicial functions has an inherent power to regulate its own procedure, save in so far as its procedure has been laid down by the enacted law, and it cannot adopt a practice or procedure contrary to or inconsistent with rules laid down by statute or adopted by ancient usage (Ex parte Events (1846) 9 QB 279). The procedure of the Supreme Court, County Courts and most of record are now substantially regulated by statutory rules."
' In para. 705 (supra) of the Halsbury's Laws of England, it is further observed that in general, all cases, both civil and criminal, must be heard in open Court, but in certain exceptional cases the Court may sit in camera where an administration of justice would be rendered impracticable by the presence of the public. In addition to the above two paras. The question of proceedings in Chambers were also dealt with in para. 345, Vol. 37 (page 253) of Halsbury's Laws of England, f ourth Edition which reads as follows: "345. Chambers proceedings generally.--Business in the High Court must be heard and disposed of in Court except in so far as, under ) Supreme Court Act, 1981 or any other Act, under rules of Court or in accordance with the practice of the Court, it may be dealt with in Chambers. Any jurisdiction of the High Court must be exercised only by a Single Judge of that Court except in so far as it is by rules of Court made exerciseable by a master, Registrar or other officer of the Court, or by another person. A high Court Judge may deal with business in Chambers and may exercise all or any part of the jurisdiction vested in the High Court in all causes and matters and in all proceedings in that Court which under the Supreme Court Act, 1981 or any other Act or under rules of Court or in accordance with the practice of the Court may be dealt with in Chamber. Subject to certain exceptions, the business and jurisdiction of the High Court exerciseable by a master or Registrar under rules. Of Court or in accordance with the practice of the Court will be transacted cr exercised by him in chambers.
' Proceedings in Chambers are held in private, but the publication of the whole or part of an order made in chambers is not in itself a contempt of Court unless the Court, having power to do so, expressly prohibits its publication.
' Every application in Chambers not made ex parte must be made by summons and the evidence adduced in support of any application, where this is necessary or desirable, is generally given by affidavit.
' The cost of proceedings in Chambers are at the discretion of the Court before which the application is heard." (Emphasised added).
6. The case of Scott v. Scott (supra) was considered in reference to the "Camera Trial" by the Supreme Court of Pakistan in the case of Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 at 171 where it was held that the observations of Lord Loreburn on page 445 and Lord Atkinson at page 464 lend support to the view that the hearing of cases in Chamber is normally held in private, as another exception to the general rule. In that case Hon'ble Supreme Court referred to the definition of "Chambers" as given in various dictionaries including the Concise Law Dictionary by P.C. Osborn, Bonvier's Law Dictionary, Mozley's Law Dictionary, Wharton's Law Lexicon, Black's Law Dictionary and the Oxford English Dictionary. The term Chamber "is also defined in "The Oxford Companion to Law" by David M. Walker (Oxford University Press, 1980) as Judge's private room adjacent to the Court room and that certain kinds of business may be, or directed to be, dealt with in Chambers and accordingly in private less formally than in Court. Reference was also made to the case Alliance Perpetual Building Society v. Belrum Investment Ltd. And another (1957) 1 WLR 720. In the case of Z.A.
Bhutto (supra) appellant objected against the hearing of transfer application in Chambers by the Lahore High Court. Former Chief Justice of Supreme Court, Anwarul Hach J. (as his lordship then was) while speaking for the majority view held, inter alia, that according to section 352, Cr.P.C. The.
Place in which any Criminal Court is held for the purpose of inquiring into or trying an offence, shall be deemed to be an open Court. Following observation at para. 350 of the said judgment would be relevant for settling the present controversy:-- "Strictly speaking therefore, the Court is open only for the purpose of 'inquiring into or trying any offence' and not for any collateral purpose, or while dealing with something which is strictly speaking outside the cause itself. In this category would fall a transfer application which is not germane to the proper trial as such. In this view of the matter also section 353 of the Code did not debar the learned trial Court from hearing the transfer application in limine in chambers' and not in Court open to the public. Indeed the Bench in its impugned order has itself specifically observed that it was decided by them to take up the transfer application 'in chambers' in accordance with the usual practice of the Court. The objection as to the hearing of the transfer application in Chambers is, therefore, without merit."
7. In the case The State v. Mr. Majeed Nizami and others PLD 1980 Journal 65 which is a decision of the Supreme Judicial Council of Azad Jammu and Kashmir, the question was whether a Single Judge can dispose of a matter in Chamber regarding bail while pending decision of an appeal, it was observed that under Order V, Rule 2, Clause (28) of the Judicial Board Rules, of a Single Judge is competent to dispose of such matters. Indian Supreme Court has also considered the implication of hearing some of the cases in Judges Chamber. Former Chief Justice of India Mr. Gajendragadkar while speaking for the majority view in Naresh Shridhar Mirajkar and others v.
State of Maharashtra and another AIR 1967 Supreme Court 1 observed that it would be unreasonable to hold that a Court should hear every case in public even though it is specified that the ends of justice themselves would be defeated by such public trial. It was further held that the principle that all cases must be tried in public is really and ultimately based on the view that it is such public trial of cases that assists the fair and impartial administration of justice and that the High Court had inherent powers to hold the trial of a case "in camera" provided, of course, it is satisfied that the ends of justice require such a course to be adopted. Reference was also made to the case Scott v. Scott (supra). It may be observed that the just and fair administration of justice requires that a hearing should be conducted in open Court; but, at the same time, if it is for the convenience of a High Court Judge and if no prejudice is likely to be caused to any party or where in the considered view of the Judge it is in the public interest or for the purpose of national integrity which may require secrecy or in the name of decency or morality, the Court would be competent to hold trial even in Chamber and in camera. However, in the instant case, it was decided by the present Bench as well as the earlier Bench to hold hearing in Chamber as it was not a Court day but was the day of judgment writing. It was never the intention of this Court that the proceedings of review petition be conducted in camera. There is no prohibition, in law to declare the Chamber of the Judge to be an open Court. In the instant I case, review petition was fixed for preliminary hearing and the other side was not on notice. It was for the satisfaction of the Court to come to a conclusion that the petitioner has made out a prima facie case for review of the judgment and only then the notice could have been issued and the other side would have been heard. For such purpose, there appears no bar for the Judges to call petitioner and to summarily hear him on the point of admissibility. Thus, the conduct of the petitioner to insist upon the Judges to hear him in open Court without any reason or justification was highly improper.
8. From the above it appears that in Pakistan also, there is no prohibition for hearing a matter in Chamber by the Judges of the superior Courts. However, this rule or practice may be exercised subject to certain limitations such as where the facts of a case demand a public hearing or where hearing in Chamber may cause prejudice to the other party. But no hard and fast rule could be laid down for the Judges of superior Courts to hear and conduct a judicial proceeding. It is their discretion which, is to be exercised judicially and for the public good. Nevertheless the general rule in respect of hearing in Chamber is meant for the cases in the nature of urgent motion; otherwise, all matters are heard and dealt with by the Judges in open Court. The present case has a special circumstance. Firstly, the Roster Branch was directed by the Hon'ble Chief Justice to fix this case on Saturday only. On this date, there was no case fixed in Court and both the Judges assembled in the Chamber of one of us. Saturday is fixed for writing judgments and orders and, therefore, it was deemed fit and proper that the case be heard in Chamber. Never in past, such practice was ever objected to by any Advocate or by any Bar Association. Thus, by the passage of time and by consent of all, it has become an established practice. It was with this view that we had asked the petitioner to point out any prejudice which he may suffer by conducting hearing in Chamber but nothing was said against it. In this factual and legal background, we are inclined to hold that the petitioner's conduct on 19-1-1998 as well as on 28-2-1998 insisting upon the Division Bench of this Court to hear his review petition .In open Court fixed for preliminary hearing was neither justified in law nor reasonable in the given facts.
9. Now, adverting to the first question, whether review application can be heard only by the same Judges who passed the earlier order which is subject-matter of this petition, Mr. Muhammad Ali Sayeed has drawn our attention to the case of Shabbir Ahmed v. Akhtar Alam PLD 1994 SC 598 where after reference to several case-law including the case of Chhajju Ram v. Neki and others AIR 1922 PC 112 it was held, inter alia, that only those Judges are entitled to hear a review petition who have passed the original order provided they are available on the Bench. In that case provisions of Order XLVII, rule 5, C.P.C. Alongwith rule 5 of Chapter III-A, Volume V of the High Court Rules and Orders with reference to the case of Government of Punjab v. Salamat Ali Khan PLD 1991 SC 691 came up for consideration. Following rule was laid down by the Full Bench of Hon'ble Supreme Court which reads as follows:-- "In the present case the private respondents had filed the review petition under Order XLVII, rule 5, C.P.C. As there is no Constitutional provision empowering the High Court to review its own judgment, similar to that of Article 188 of the Constitution, which empowers the Supreme Court to review any judgment pronounced or any order made by it subject to the provisions of any Act and/or of the Supreme Court Rules. In this view of the matter, if none of two learned Judges who decided the above Constitutional Petition would have been available, in that case, Rule 5 of the Rules and Orders would have been attracted to. The language of above Rule 5 as pointed out hereinabove seems to be unambiguous and clear on the question that it is applicable only when Order XLVII, rule 5, C.P.C. Is not applicable to a review petition. In the case in hand the author Judge remained available in terms of Rule 5, Order XLVII, C.P.C. He was to hear the review petition as held by the Privy Council in the above case and not by two Judges under Rule 5 and Orders."
10. Order XLVII, Rule 5 of the Code of Civil Procedure, 1908 read 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."
11. There are two conditions contemplated by Rule 5 of Order XLVII of the Code of Civil Procedure which unless satisfied, a review application cannot be heard by any Judge or Judges who had not participated in the judgment, decree or order sought to be reviewed. In addition to the case of Shabbir Ahmad (supra) there are other cases from Indian jurisdiction which support this view. In Sirkar v. Velayuhan Ponnan and others AIR 1953 Travancore-Cochin 1), it was held by the majority that a review application is to be heard by the same Judge or Judges who had authored the order, judgment or decree under review. It was further held that the prohibition contained in Rule 5 of Order XLVII, C.P.C. Is absolute and it is not limited to the first stage of the hearing of the application and that the hearing contemplated in this Rule includes the hearing at both the stages of the application. In Sheo Prakash Singh v. The State of Rajasthan and others AIR 1960 Rajasthan 72, it was held by a Division Bench of Rajasthan High Court that where an appeal has been heard by two Judges and a review against it is heard by one of the two Judges and a third Judge, and where the other Judge who was member of the earlier Bench which heard the appeal and who did not participate in the hearing of the review, was still a member of the Court and was not precluded from hearing it by his absence or other similar cause for a period of six months next after the application for review was presented, such a procedure was held to be illegal in view of Order XLVII, Rule 5, C.P.C. (see also Seemakurty Achyutan v. Seemakurti Kasi Annapuranamma and others AIR 1963 Andhra Pradesh 277). Thus, the two learned Judges who have earlier heard this petition and authored the judgment under review are available and the two conditions as contemplated under Rule 5 of Order XLVII, C.P.C. Being not fulfilled, this review petition is to be heard by the same Bench.
12. The matter does not end here. The earlier Division Bench which passed the judgment has ordered not to fix this case before them. None of the parties have addressed on this aspect of the case that whether a Judge or Judges for no reason, could decline to hear a case. The conditions imposed on a Judge disqualifying him to hear a case is provided in Article IV of the Code of Conduct which provides that a Judge must decline to act in a case involving his own interest, including those of persons whom he regards and treats as near relatives or close friends. A Judge must also refuse to deal with any cause in which he has a connection with one of its parties or lawyers more than the other or even with both the parties and their lawyers. The petition was earlier heard and disposed of by the same Bench which fact reveals that apparently there was no ground of disability or disqualification at the initial stage to hear the petition. While stating the above Rule from the Code of Conduct, I am fully conscious of the case of Mirza Akbar v. Mirza Iftikhar Ali and others PLD 1956 Federal Court 50, where it was held by the Hon'ble Supreme Court that a Judge is not disqualified to hear a cause simply on the ground that one of the parties is his friend. It was further held that the friendship is too vague and general a term to be judicially recognized as a factor disqualifying a Judge to hear a cause to which one of the parties is his friend. Be that as it may, we would not like to dilate any further on this point as these questions require detailed consideration.
13. In view of the above observations, we direct the office to place this matter once again before the Hon'ble Chief Justice for further orders as his Lordship may deem fit and proper.