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Civil Review Petition No. 3'l-R of 1978 in Civil Petition for Special Leave to Appeal No. 1122 of 1976, decided on 26th November, 1979.
(On appeal from the order dated 21-2-1978 of the Supreme Court in C. P. S. L. A. No. 1122 of 1976).
Art. 188-Review-Observation made by Court in nature of a consent order-No party, held, can be allowed to resile from such order by seeking review.
Sh. Shaukat Ali, Senior Advocate Supreme Court of Pakistan instructed by Rana Maqbool Ahmad Qadri, Advocate-on-Record for Petitioners.
Abdul Aziz, Advocate Supreme Court instructed by Ismail Ahmad Qureshi, Advocate-on-Record for Respondents.
Date, of hearing: 26th November, 1979.
-This is a petition for review of the order dated 21-2-1978 passed by this Court in Civil Petition for Special Leave to Appeal No. 1122 of 1976. While disposing of the petition for leave to appeal it was observed in the last paragraph of the order, as follows :--
"After hearing the learned counsel for the parties, we do not find any ground to interfere with the orders of the Courts below. However, there is force in the submission of the learned counsel for the petitioner that he cannot be deprived of the construction raised by him on the first floor. This plea was also not seriously disputed by the learned counsel for the respondents Nos. 2 and 3 who appeared in support of the caveat filed by them. We would, accordingly, dismiss the petition subject to the observation that the construction raised on . the first floor by the parties will remain with the petitioner and shall not be transferred to the respondents." .
A plain reading of the above shows that the observation made by this Court that the first floor will remain with the petitioner in the said petition and shall not be transferred to the respondents is in the A nature of a consent order and one party cannot now be allowed to resile from it.
Sh. Shaukat Ali, learned counsel appearing on behalf of the petitioner herein, however, submitted that the present petitioner was not represented by Mr. Munir A. Sheikh, who is shown in the order as having represented respondents Nos. 2 and 3 before us. According to him, Mr. Munir A. Sheikh, Advocate, was only the counsel for respondent No. 2 namely, Ataullah and not of the present petitioner, who was respondent No. 3 in the said proceeding. However, it was not disputed that his client (petitioner herein) as represented by his General Attorney was present at the time of hearing and is again present in Court today and has admitted before us that the arrangement referred to in our order was arrived at in his presence but he had kept quiet on that day, as he was under the impression that he could not interfere in the proceedings that were being held in the Court.
We are not impressed by the submission that the petitioner herein had not consented to our previous order. Firstly, Mr. Munir A. Sheikh has clearly been shown in the record to have been representing both the respondents Nos. 2 and 3 i.e. Ata Ullah and the petitioner herein and that he was being instructed by Mr. Mahmood A. Qureshi, Advocate on Record. Secondly, even if there be some doubt about whether Mr. Munir A. Sheikh was indeed his counsel, there can be no doubt Mr. Mahmood A. Qureshi was his Advocate on the record. This is manifest from the fact that Mr. Mahmood A. Qureshi, Advocate-on-Record represented respondent No. 3 (petitioner herein) specifically in connection with a miscel laneous Application (C. M. P. 190/77 in C. P. S. L. A. 1122/76) which was heard during the pendency of the petition for leave to appeal. Since the said learned Advocate-on-Record was definitely present when the Civil Petition for Special Leave to Appeal No. 1122 of 1976 was disposed of in the terms B noted at the outset, the petitioner herein cannot now get out of the order passed on that date.
This is, therefore, not a fit case for exercising the review jurisdiction . This petition therefore fails and is dismissed hereby.
Petition dismissed.
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