KHAWAJA MUHAMMAD SAEED, J.---Through this review petition the petitioners have challenged the correctness of the judgment passed by this Court in Civil Appeal No. 62 of 2001, decided on 31- 10-2001.
2. Facts relevant for the decision of this review petition, briefly stated, are that in violation of the relevant rules Plots Nos.48-A and 48-B, situate in Sector C/2, Mirpur were marked on open space and allotted in favour of the petitioners on 23-12-1967. The allotment orders were challenged on this ground in the High Court through a writ petition which was allowed by the said Court vide its judgment dated 19-3-1978. Right of appeal was availed by the present petitioners before this Court against the said judgment of the High Court but their appeal was dismissed on 30-5-1979. A review petition was filed against the said judgment which also met the same fate. According to previous judgments of the Courts, the petitioners obtained allotment of alternate Plots bearing Nos. 111-J and 111-K in Sector F/3, Mirpur which are under their possession and use. On 5-6-1990 the petitioners once again secured the allotment of Plots Nos.48-A and 48-B from the Chairman, Municipal Committee. They also got temporary allotment order issued in their favour on 23-7-1997. The contesting respondent Mst. Zareen Akhtar filed a writ petition in the High Court on 5-11-1997 whereby she challenged the fresh orders of allotment obtained by the present petitioners from Chairman, Municipal Committee on 5-6-1990 on the ground that this allotment was bad in law as previously allotment of the petitioners was set aside by the High Court on the ground that they had obtained the allotment of these plots from open space. This order of the High Court was maintained by this Court on appeal as well as in review jurisdiction which was availed by the petitioners.
3. The petitioners also filed writ petitions in the High Court which were consolidated and decided by a learned Judge of the High Court whereby he dismissed the writ petition filed by the petitioners herein and allowed the writ petition tiled by contesting respondent Mst. Zareen Akhtar. A petition for leave to appeal was filed before this Court by the present petitioners without appending the attested copy of the writ petition with the same, therefore, on account of this reason their petition was dismissed by this Court without entering into the merits of the case vide judgment dated 23- 12-1998. The petitioners, thereafter, moved a miscellaneous application before the High Court on 22-12-1999 requesting therein that the judgment recorded by a Single Judge of the High Court in writ Petitions Nos.141, 142 and 75 of 1997 may be recalled on the ground that the learned Judge was not legally competent to decide these writ petitions as these were not entrusted to him for hearing and disposal under law by the Chief Justice of the High Court as visualized by Rule 8 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. It appears appropriate to mention at this stage that these petitions were entrusted to Mr. Justice Muhammad Siddique Farooqi (now retired) for hearing by Mr. Justice Ch. Muhammad Taj, who at the relevant time, was senior amongst the Judges sitting at Circuit Bench, Mirpur. The learned Chief Justice of the High Court dismissed this miscellaneous application vide his order dated 7-6-2002 on the ground that as the matter stood resolved even by the Supreme Court, therefore, any order favourable to the petitioners on this application shall amount to set at naught the final order recorded by the Supreme Court. The order of the Chief Justice of the High Court was assailed in appeal before this Court which was dismissed through a well-reasoned judgment dated 31-10-2001, under challenge in the present review petition. The appeal of the petitioners was dismissed on various grounds by this Court. However, an objection has been taken about the observations of this Court recorded in para. 9 of the judgment seriously and pressed during his arguments by the learned counsel for the petitioners whereby it was laid down that the petitioners persuaded their remedy before Mr. Justice Muhammad Siddique Farooqi without raising any objection about his competence to hear writ petitions on the ground that the same were not entrusted to him by the Chief Justice, but when decision went against them they challenged his jurisdictional competence. It was held that if a party submits itself before the jurisdiction of a Court without raising any objection about the jurisdictional competence of the said Court, it cannot turn round with a volta face when the judgment is given against such party that the said Court had no jurisdiction to decide the lis. The learned counsel appearing on behalf of the petitioners relied upon a judgment reported as Muhammad Latif Khan and 15 others v. Muhammad Ashraf Khan and 3 others (1989 CLC 2402) wherein it was laid down than once a view had been taken by the Court it could not be changed in review merely because it was wrong. However, where the view taken by the Court runs counter to judgment which was binding on a Court buts the Court fails to notice it then in that case there could be a valid ground to review the judgment in accordance with the judgment having binding force upon the Court. The relevant observations are recorded at page 207 which reads as follows:-- "It is not the petitioner's case that this observation is based on any incorrect assumption of a material fact. What is being contended, in my view, amounts to saying that the learned Judge has taken an incorrect view of law because the clear import of the above extracted observation is that the learned Judge was of the view that if a suit for redemption is dismissed on the ground that defendants had been in adverse possession for more than 12 years, it amounts to a decree of title in favour of the defendants. The petitioners practically want to me to hold that this view is not correct. It is well-settled that incorrectness of view is not ground for review. Once a view has been taken it cannot be changed in review of the judgment merely because it is wrong. No doubt there are grounds which are recognised for change of view by way of review, for instance, if the view taken by a Judge runs counter to a judgment which was binding on the Judge but he failed to notice it as was held in Mst. Sardar Begum and 2 others v. Ahmed Khan and 4 others (1983 CLC 621) and Faqir Muhammad Khan v. Mir Akbar Shah (PLD 1973 SC 110). Another possible ground is that a view fails to implement provision of a statute. It has not been shown to me that the view formed by the learned Judge suffered from any recongised defect and I find that there is no such situation in the present case. The judgment cited by learned counsel for the petitioners Maulvi Sirajul Haq do not advance the case of the petitioners."
As we all know the judgment of Division Bench is binding upon the Single Judge and decision of Full Court upon the Division Bench and Single Bench. If a Single Judge has passed an order which is directly in conflict with the view taken by the Division Bench or Full Court then such judgment can be reviewed in order to bring it in conformity with the binding view taken by the Division Bench is bound to follow the judgment of the Full Court. However, the judgment of Single Judge is not binding upon the Single Judge and in the same way the judgment of Division Bench is not binding upon another Division Bench. So, this authority has no bearing on the facts of the present case.
The second authority relied upon by the learned counsel for the petitioners is reported as Mirza Muhammad Aslam Beg v. Dr. Saghir Iqbal (1992 SCR 94). In this case it was laid down that if a proper case is made out for the interference of this Court then this Court has got ample powers under section 42-A of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and rule 5 of Order XLIII of the Azad Jammu and Kashmir Supreme Court Rules, 1978, to make such order as may be necessary for the ends of justice or to prevent the abuse of process on the Court. This authority is also of no help to the present petitioners as undoubtedly under section 42-A of the Interim Constitution Act, 1974, very were jurisdiction has been conferred upon this Court which has been reiterated under rule 5 of Order XLIII of the Supreme Court Rules, authorising this Court to pass such orders which would meet the ends of justice. However, let us make it clear that these powers cold not be exercised to deprive any person from the benefit of the litigation already accrued to such party.
3. Mr. Fazal Hussain Rabbani, the learned counsel for the respondents, on the other hand argued that through this review petition the petitioners have tried to reopen the case. According to him as the points which have been raised stood already adjudicated by the Court, therefore, through this review petition rehearing cannot be granted to the petitioners. He further argued that this Court in numerous authorities has held that even if erroneous view is framed in respect of any matter the same cannot be held as mistake apparent on face of the record to justify its interference in exercise of review jurisdiction.
4. We have considered the arguments of the learned counsel for the parties and gone through the record of the case. The litigation about the plots in dispute has got a very chequered history as again and again the dispute was brought in different shapes before this Court. For the previous pronouncements of this Court it is clear that Plots. Nos.48-A, and 48-B situate in Sector F/3, Mirpur were marked on open space and allotted to the petitioners on 23-12-1967. These plots were cancelled from the name of the petitioners by the High Court in exercise of writ jurisdiction vide order dated 19-3-1978. Appeal taken against the judgment of the High Court by the petitioners was dismissed by this Court on 23-5-1979. Later on the petitioners unsuccessfully invoked the review jurisdiction of this Court against the aforementioned judgment of the Court dated 23-5-1979. The petitioners got the allotment of the alternate Plots bearing Nos.111-J and 111-K in Sector F-3, Mirpur.
Subsequently, Chairman Municipal Committee, Mirpur once again committed an illegality when he allotted these plots to the petitioners on 5-6-1990 which were marked on open space. Once again the contesting respondent Mst. Zareen Akhtar invoked the Constitutional jurisdiction of the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to challenge the allotment of the petitioners made in their favour after the decision of the superior Courts of the State by the Chairman, Municipal Committee on 25-6-1990. The petitioners also filed writ petition in the High Court. All the three writ petitions were heard together by a learned Judge, Mr. Justice Muhammad Siddique Farooqi (now retired), who allowed the writ petition filed by Mst. Zareen Akhtar and dismissed the writ petition filed by the petitioners. After the lapse of considerable period a miscellaneous application was filed by the petitioners wherein they challenged the competency of Mr. Justice Muhammad Siddique Farooqi to decide these writ petitions on the ground that these were not entrusted to him by the Chief Justice of the time rather the cases were entrusted to him by a Senior Judge of the High Court, therefore, his decision was void ab initio. The application was dismissed by the learned Chief Justice of the High Court. An appeal was taken to this Court which was also dismissed through the judgment under review inter alia, on the following grounds:--
(i) That the petitioners had been appearing before the learned Judge Mr. Justice Muhammad Siddique Farooqi but during the pendency of the writ petitions they never challenged his jurisdiction on the ground that the cases have not been entrusted to him by the Chief Justice as such he was not competent to decide the same;
(ii) That the writ petition filed by the petitioners was dismissed by the High Court vide order, dated 17-6-1998 and appeal filed before this Court by these two petitioners was dismissed vide order, dated 23-12-1998. In that petition for leave to appeal, no point about the competency of the learned Judge of the High Court was raised that he was not competent to decide the writ petitions filed by the parties against each other as these were not entrusted to the learned Judge by the Chief Justice; and (i.e) That even otherwise the petitioners have got no case as they have obtained allotments of alternate Plot No. 111-J and they cannot press for the allotment of Plots Nos. 48-A and 48-B.
4. This judgment has been challenged in the present review petition. The first ground taken by us in the judgment under review is that the appellants submitted themselves before the jurisdiction of the learned Judge in the High Court and they did not raise any objection about the jurisdictional competence of the learned Judge in the High Court or in their first petition for leave to appeal before this Court. Therefore, on account of this reason it was held that the petitioners cannot turn round with a volta face when the judgment was given against them to raise the objection about jurisdictional competence of the learned Judge of the High Court. The view taken by us has been repeatedly expressed by all the superior Courts of sub-continent. In a case titled Maqbool Ahmad Maqbool v. The Province of Punjab and 10 others (1971 SCMR 727) a single Member of the Public Service Commission had taken interview of the candidates. Later on his authority was challenged on the various grounds in a writ petition before the High Court. The writ petition was dismissed on the ground that the petitioner voluntarily appeared before him for interview without raising any objection regarding his competence. Therefore, he cannot maintain the writ petition. The judgment was assailed in the Supreme Court whereby petition for leave to appeal was dismissed on the same ground.
PLD 1983 Lah. 46) the petitioners had called in question the order passed by Executive Committee of the Punjab Bar Council, Lahore on the ground that the order was void ab initio. However, as no objection was raised about the competency of the Committee during the pendency of the proceedings, therefore, it was held that the petitioner was estopped by his conduct to challenge the impugned order. It was also laid down that a writ can be refuted in the light of the conduct of the petitioner even against a void order.
PLD 1973 SC 236) it was laid down that there is a difference between incorrect decision and void decision. The void decision is such which is passed by an authority having no jurisdictional competence. In the, present case it cannot be said that the learned Single Judge Mr. Justice Muhammad Siddique Farooqi was not legally competent to hear and decided these writ petitions which were entrusted to him by the senior Judge of the High Court, therefore, it cannot be said that the decision given by him is void ab initio. The only objection of the petitioners is that the cases were not entrusted to the said Bench by the Chief Justice but were entrusted to the said Bench by the senior Judge. Let us make it clear that the High Court besides Muzaffarabad which is the principal seat of the Court is holding circuits at Mirpur, Kotli and Rawalakot for the convenience of `he people of these districts. Even the registry offices have been established at these district headquarters, where new cases are filed by the aggrieved parties. Humanly it was not possible for the Chief Justice to attend these circuits at the same time and entrust cases to the Judges who were available at these circuits. Therefore, a general order was passed by the Chief Justice that if Single Bench was holding circuit, all old and new cases shall be placed for hearing and disposal before the said Judge during his visit to such circuit. When more than one Judge was deputed for hearing the cases at any Circuit Bench in that case the Chief Justice had passed a general order that the cases shall be presented before the Senior most amongst the Judges, for distribution of business at such circuit. Under the delegated authority by the Chief Justice Mr. Justice Ch. Muhammad Taj who was senior most Judge at Mirpur, entrusted these writ petitions to Mr. Justice Muhammad Siddique Farooqi for hearing and disposal under law. It was in the knowledge of the petitioners that the Chief Justice was not attending the -circuit at the relevant time, therefore, the senior most Judge under the general order passed by the Chief Justice had rightly distributed the business and entrusted these cases to Mr. Justice Muhammad Siddique Farooqi for hearing and disposal under law. There are number of pronouncements even by this Court which need not be reproduced in this order that if objection about jurisdiction is not raised before the concerned authority or the Court by a party, such party is estopped to challenge the legal competence of such authority or Court in appeal, in case the judgment is passed against such party. In the present case all points which were pressed on behalf of the petitioners were resolved by us through well-elaborated judgment under review. No illegality or irregularity amounting to mistake apparent on the face of record has been pointed out by the learned counsel for the petitioners in fact want us to change the view which we have expressed in our judgment dated 31-10-2001. It is settled proposition of law that the review cannot be allowed to reopen the case for the purpose of affording rehearing of the points already resolved. The Courts have gone to this extent that even if erroneous conclusion is drawn the same cannot be regarded as mistake apparent on the face of record justifying the interference of the Court in exercise of its review jurisdiction. In Muhammad Yousaf Sani v. Azad Government and 4 others (1996 SCR 370), it was resolved by this Court that issue which stands resolved cannot be made a subject of review petition even if the same has been resolved illegally.
2000 YLR 1891), it was resolved that controversy resolved one way or the other cannot be, reopened through review jurisdiction. The I same view was expressed in Abdul Qadir and 2 others v. Abdur Rehman's and 4 others (1999 PLC (C.S.) 947), Muhammad Ayub Khan and 4 others v. Chairman, Inspection Team and another PLD 1982 SC (AJ&K) 27, S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another (1980 SCMR 711), Muhammad Yasin v. Jan Muhammad and others (1992 SCR 129), Allah Ditta and others v. Mehrban and others 1992 SCR 145 Ch. Mehmood Ahmed v. Haji Muhammad Idrees and another (2001 YLR 3237), Muhammad Ishaque v. Mst. Hanifa Begum and 9 others (1998 CLC 729) and Zafar Iqbal v. Allotment Committee of Municipal Committee (1994 SCR 157). This Court has decided the question of allotment of disputed plots against the petitioners on 30-5-1979. Without setting aside that judgment no relief can be allowed to the petitioners. That judgment has attained finality as the same was passed some 23 years back.
H.B.T./335/SC(AJ&K)