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P L D 1986 Supreme Court 330
Present : Muhammad Afzal Zullah, Nasim Hasan Shah, Shafiur Rahman and Zaffar Hussain Mirza, JJ
BEGUM ZAHEERUL HAQ AND OTHERS‑Petitioners
Versus
CH. MUHAMMAD YOUNUS AND ANOTHER‑Respondents
Civil Review Petition No. 37‑R of 1985, decided on 23rd February, 1986.
(From the judgment of this Court dated 3‑6‑1985 in Civil Appeal No. 174 of 1983).
(a) Supreme Court Rules, 1980‑
‑ O. XVI, r. 1‑Review by Supreme Court‑Advocate not in at tendance‑Absence of Advocate and a certificate of fitness signed by him‑Entertainment of such review petition at the instance of ap plicant was doubtful‑Matter having not been made clear in any of the Supreme Court's judgments, 'Supreme Court, however, permitted applicant to argue matter in person.
(b) Constitution of Pakistan (1973)-‑
---Art. 185 (3)‑Leave to appeal‑Supreme Court being of ultimate jurisdiction has vast discretion to examine points on which even leave to appeal has not been granted.
(c) Constitution of Pakistan (1973)‑
‑‑ Art. 185 (3) ‑ Leave to appeal‑Mere fact that leave to appeal has been granted would not deter Supreme Court from coming to conclusion that point not having been raised before High Court, did not merit any further consideration by Supreme Court.
Petitioner in person.
Munir A. Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate -on‑Record for Respondents.
Date of hearing : 23rd February, 1986.
MUHAMMAD AFZAL ZULLAH. J.
‑ This Civil Review Petition arises out of our order dated 3‑6‑1985 ; whereby an appeal through leave of this Court arising out of a rent restriction matter filed by the tenants, was dismissed.
Although the appeal had been argued by an Advocate of .the High Court (by leave of the Court) the Advocate has not filed a certificate of fitness of the matter for review.
One of the appellants has himself argued the matter. The Advocate is not even now in attendance. It is doubtful whether in absence of the Advocate and a certificate of fitness signed by him this review petition could be entertained at the instance of the applicant in person. However, as the matter was not made clear in any of the Court's judgment, therefore, we have permitted Mr. Shamsul Haq, one of the appellants/applicants to argue the matter in person.
The main contention is that an argument raised during the hearing of the appeal with regard to the appearance of Mr. Munir A. Sheikh Advocate from the respondent‑side to the effect that he had appeared for the appellants (Review Applicants) at an earlier stage of the same proceedings, was not given any importance. This time a photo‑copy of the power‑of‑attorney filed by Mr. Munir A. Sheikh has been placed on record to support the applicants' position. Mr. Munir A. Sheikh is present for the caveator. He has explained that the said power‑of- attorney relates to another case of ejectment which had preceded the cafe out of which the present proceedings have arisen, therefore, the said power‑of‑attorney is not relevant to the argument. The applicant agreed that the power‑of‑attorney related to the earlier case. That being so, there was no clash of interest vis‑a‑vis Mr. Munir A. Sheikh's appearance in the present proceedings which were based and fought on totally different considerations. It is accordingly not a fit point for review.
The applicant then contended that although leave to appeal had been granted to examine the question that the learned Additional District Judge while hearing the appeal had ignored points noted as (b) and (c) in the Order under review‑this very ground was not examined by this Court on the ground that it had not been urged before the High Court. This, as contended by him, is against justice. He has cited case‑law to show that once leave to appeal is granted the entire matter gets opened and the Court has the power to examine other points as well. There is no ravel with the proposition that the Court being of ultimate jurisdiction has vast discretion to examine points on which even leave to appeal had not been granted. But here, leave was granted to examine a question as to why the Additional District Judge had failed to consider certain arguments. It was necessary for the Court to see whether that point had been raised before the High Court or not so as to see its opinion thereon. The mere fact that leave to appeal has been granted would not deter) the Court from coming to the conclusion that the point not having been raised before the High Court, did not merit any further consideration by this Court.
That being so, there is no force in the second contention raised by the applicant either. However, it may be observed that the main point out of the two which related to the attempt of the landlord to sell the property was commented upon by this Court and the evidence on that aspect was found to be inchoate. It was in that regard observed that it did not "conclusively lead to the conclusion to which the learned counsel wanted us to draw". It was further noted that the Additional District Judge in fact had not ignored this point and that he had taken note of the fact that the landlord entered into an agreement with Muhammad Jamil to sell the disputed premises. But the contention did not ultimately prevail with that Court as Muhammad Jamil himself was not produced for cross examination.
In the light of the foregoing discussion there is no force in this review application. The same is accordingly dismissed.
M. B. A. Application dismissed.
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