DR. MUNIR AHMAD MUGHAL, J.--- The learned counsel for the petitioner is aggrieved by the order in para No. 7, dated 14.1.2000 passed in Writ Petition No. 10806 of 1996 which reads as under:-- "....Market Committee is a body corporate and its employees are, therefore, a category apart. They can only be governed by such rules as are specifically applicable to them. The Government Notification giving BS-16 and selection grade-17 to 33% of the Superintendents is not applicable to the employees of the Market Committee until and unless the Director General Agriculture (Field), Punjab gives previous sanction for the creation of new posts as per rule 70(3) of the Punjab Agricultural Produce Market.
(General) Rules, 1979.
The petitioners have not approached the said Director who is the competent authority in the matter. Hence, the proper course for the petitioners is to move the Director General Agriculture (Field), Punjab for adequate redressal of their grievance. This writ petition is pre-mature and is hereby dismissed."
2. The learned counsel then referred to a letter bearing No. PD/X-72-IV of the Government of the Punjab, Agricultural Department dated Lahore, the 8.2.1988 from the Project Director to the Director General Agriculture (Field), Punjab, Lahore on the subject of creation of post of Superintendent and Chief Inspector in Market Committee, Faisalabad stating therein that the Government of the Punjab, Agriculture Department, Lahore has agreed in principle to the creation of the posts of Superintendent and Chief Inspector in BS-12 for Market Committee, Faisalabad. The relaxation in qualifications is, however, not allowed and he also referred to an order of the Director General Agriculture (Field, Punjab, Lahore whereby in exercise of powers delegated under Rule 70(3) of the Punjab Agricultural Produce Market (General) Rules, 1979 as amended vide Agricultural Department Notification No. SOA(C&M)VIII-4/80 and in pursuance of the orders of the Agriculture Department contained in their No. PD/X7/72-1V, dated 8.2.1988, sanction was accorded to the creation of the posts of 'Superintendent and Chief Inspector in BS-12 in Market Committee, Faisalabad with immediate. Effect. He then referred to the Notification No. PD/II-5/86, dated 20.7.1989 according to which the post of Superintendent was made in BS-15. Admittedly, these documents were neither produced by the petitioners nor the respondents at the .Time of the arguments when the order under review was passed and had these documents been shown to the Court, the writ could not have been dismissed as pre-mature as the posts stood created and BS-15 was notified in respect of the post of Superintendent. The learned counsel then referred to annexure "D" which is a copy of the resolution dated 10.4.1993 wherein under Section 16, of the Punjab Agricultural Produce Markets Ordinance, 1978 it was unanimously resolved that Mr. Muhammad Akram be given scale BS-16 and for final approval the case be sent to the Agricultural Department, Government of the Punjab. The matter was referred to the Government of the Punjab, Agricultural Department and the Government informed that according to the regulatory provisions the Superintendent of Market Committees are not entitled for BS-16. The learned counsel then referred to the Government of the Punjab, Local Government and Rural Development Department Notification No. SOIV(LG)4-16/91, dated 28.10.1991 according to which in pursuance of Finance Department's letter No. FD-PC-18- 1/90, dated 23.9.1991, Government of the Punjab, LG&RD Department had decided to adopt the said letter for the employees of local councils for the grant of selection grade in BS-17 to the 33% of total post of Superintendents (BS-16). He then referred to annexure "G" which is letter dated 23.9.1991 which is basic document. Learned counsel then referred Rule 70(6) of the Punjab Agricultural Produce Markets (General) Rules, 1979 according to which in respect of service conditions including disciplinary matters and other matters ancillary thereto by the rules applicable from time to time to the employees of the Punjab Government. The learned counsel then referred to Rule XX of the Punjab Market. Committees Employees (Pay Revision) Rules, 1972 which was added vide Notification No. SRO PD/XV-4172, dated 6th June, 1988 and which is reproduced as under;- "...XX. Basic Pay Scale- (1987) to the employees of the Market Committees in the Punjab: (1) The Revision of the Basic Pay Scales, 1987, applicable to the employees of the Punjab Government in respect of Pay scales and fringe benefits shall be equally applicable to the employees of the Market Committees in the Province.
(ii) In the case of any dispute, the decision of the Government shall be final.
(iii) The revision of the Basic Pay Scales, 1987 shall come into force with effect from 1st July, 1987."
3. On the other hand the learned counsel for the respondents has submitted that after the pronouncement of judgment this Court had become functus officio and powers of review are not available to the High Court in exercising writ jurisdiction. She further submitted that non-production of the documents at the time of the hearing of the writ petition would amount to -up the lacuna of a party.
4. I have gifillingven due considerations to the valuable arguments on both sides.
5. Special provisions relating to High Courts are given in Part IX of the Code of Civil Procedure. It has five Sections (i.e. Sections 116 to 120). Section 117 of it is relevant. It reads as under;- 1'117. Application of Code to High Courts. Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to High Courts."
6. In the case of Hussain Bakhsh Vs. Settlement Commissioner (PLD 1970 S.C. 1) the Hon'ble Supreme Court observed that a High Court apart from its power to correct error apparent on face of record in exercise of inherent jurisdiction has power under C.P.C. To review its order made in exercise of its write jurisdiction. Similarly, in the case of Fatima .Vs. Shah Muhammad (PLD 1975 S.C.
318) it was observed that a High Court exercising writ jurisdiction can review its order.
7. Part VIII of the Code of Civil Procedure deals with reference , review and revision. It has three sections (namely Section 113 dealing with Reference to- High Court, Section 114 dealing with Review and Section 11.5 dealing with Revision). For the purpose of this case Section 114, C.P.C. Is relevant and is reproduced as under:- "114. Review.
(1) Subject as aforesaid, any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
(2) Nothing contained in sub-section 91) shall apply to a review of any judgment pronounced or any order made by the Supreme Court."
8. The above-quoted Section 114 contains a brief statement of the Court's general power of review.
These powers are subject to the procedure, conditions and limitation prescribed by the rules of Order XLVII. Order XLVII consists of 9 rules and it reads as under:- ORDER XLVII.
Rule 1. Application for review of judgment. . (1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, Or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of the due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent he can present to the Appellate Court the case on which he applies for the review.
Rule 2. To whom applications for review may be made.-- An application for review of a decree or order of a Court, not being a High Court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the Judge who Passed the decree or made the order sought to be review; but any such application may, if the Judge who passed the decree or made the order has ordered notice to issue under rule 4, sub-rule (2), proviso (a), be disposed of by his successor.
Rule 3. Form of application for review.-- The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review.
Rule 4. Application where rejected. -- (1) Where it appears to the Court, that there is not sufficient ground for a review, it shall reject the application.
Application where granted.-- (2) Where the Court is of opinion that the application for review should be granted, it shall grant the same: Provided that--
(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; and
(b) no such application shall be granted on the discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the .Decree or order was passed or made, without strict proof of such allegation.
Rule 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 heard the same.
Rule 6. Application where rejected.-- Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected.
(2) Where there is a majority, the decision shall be according to the opinion of the majority.
Rule 7. Order of rejection not appealable. Objections to order granting application.-- (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to on the ground that the application was--
(a) in contravention of the provisions of rule 2,
(b) in contravention' of the provisions of rule 4, or
(c) after the expiration of the period of limitation prescribed therefor and without sufficient cause.
Such objection may be taken at once by an appeal from the order granting the application or in any appeal from the final decree or order passed or made in the suit.
(2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected, application restored to the file, and where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same.
(3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party.
Rule 8. Registrar of , and order for rehearing.-- When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit.
Rule 9. Bar of certain applications.
(1) No application to review an order made on an application for a review of a decree or order passed or made on a review shall be entertained.
(2) Nothing in this Order shall apply to ant judgment pronounced or order made by the Supreme Court.
9. From the contents of the above provisions of Section 114 and Order XLVII the following things are clear:-
(1) that a Review is not equated with an appeal;
(2) that an error to attract review must be, blatant and obvious and it must not be one requiring any elaborate discussion for its establishment.
(3) that a review cannot be made a pretext for re-hearing the case; and (4) that the power to review Court's own judgment is only discretionary and it is not mandatory for a Court to do so. In the case of Faqir Muhammad Khan Vs. Akbar Shah (PLD 1973 S.C. 110) it was observed that discretion must be exercised upon sound judicial principle.
10. The manifest reason behind the conferment of discretionary power of review to a Court is to prevent injustice being done by a Court, as far instance where by some inadvertence some important statutory provision has escaped, notice but in no case it is a re-hearing on merits. A review is not an appeal. An appear is a remedy provided by law for getting the decree of the lower Court cancelled and is in fact a complaint made to the higher Court that the decree of the lower Court is unsound and wrong. An appeal when presented puts the decree in jeopardy, but until such decree is reversed or modified in appeal it remains effective, unless it is a nullity. A review differs from an appeal in that the primary intention of the Review is the reconsideration of the subject by the same Judge under certain conditions while an appeal is a rehearing by another Tribunal. In appeal, the points to be decided are those on which the parties are at variance. A review also differs from a revision. A revision is a matter between a higher Court and a lower Court; in fact revisional powers may in certain ceases, be exercised without an appeal or an application by any of the parties concerned.
11. In the present case the relevant notifications on the record now highlighted leave no doubt that the Project Director vide his order dated 8.2.1988 (Annexure K) had requested the Director General Agriculture (Field) to create posts of Superintendents in the Market Committee in BS-15. The sanction was issued and post created vide letter dated 15.2.1989 (Annexure J). It was later on upgraded to BS-15 vide Notification dated 20.7.1989 (Annexure L). Rule XX of the Punjab Market Committee Employees (Pay Revision) Rules, 1972 which provided that Revision of Basic Pay Scales, 1987 applicable to the employees of the Punjab Government in respect of Pay Scales and the Fringe Benefits has to be equally applicable to the employees of the Market Committee in the Province,. The basic appointment letter of the petitioner (Annexure M) also provided that he will be governed by such rules and orders relating to Leave, T.A., Medical Attendance and Pay etc., as issued by the Government from time to time for the categories of employees of which he will belong.
12. From the above discussion it is crystal clear that had those Notifications and rules been properly so highlighted and brought to the notice of this' Court there would not have been blatant and apparent error of law. To rectify an error apparent whereby the cause of justice is advanced in accordance with the true and unrebuttable facts without adversely affecting the right of the other side cannot be termed as filling in the lacuna of evidence. The basic principle is that truth must prevail and no technicalities should come in its way. What is substantial justice? It is the other.
Name of making the truth prevail. The soul aim of providing the right of appeal, revision or review is also this that rights remain protected, secured and unviolated. As such, to avoid miscarriage of justice review application is allowed and consequently the Writ Petition No. 10806 of 1996 also merits to be allowed. The same is allowed..