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Civil Review Petition No.2 of 1988, decided on 18th January, 1989.

(In the matter of Review of the order of Supreme Court dated 16 10 1988, in Civil P.L.A. No.30 of 1988).

O.XLVI R.1 Civil Procedure Code (V of 1908), O.XLVII, R.1 Review before Supreme Court Scope of Power of review postulates that subject to law and practice of Supreme Court, Supreme Court may review its judgment or order in civil proceedings on grounds similar to those mentioned in O.XLVII, R.1 of Civil Procedure Code, 1908 Scope of review is restricted to point of law and matters emanating from facts on record Review is permissible on satisfaction that a point of law lost sight of by the Court or an error resulting in miscarriage of justice, was made by misreading, non reading or overlooking a fact Such error must constitute an error on the face of record.

(b) Azad Jammu and Kashmir Supreme Court Rules, 1978

O.XLVl, R.1 Review Point raised in review, adequately dealt with by Service Tribunal, reference whereof was made by Supreme Court in the impugned order Petitioner failing to raise such point in petition for leave to appeal Point raised in review is thus altogether a new and independent point New point resting on question of fact is seldom entertained by Supreme Court.

O.XLVI, R.1 Review Scope. Ground raised in review petition was not a fact strictly forming part of record of Court Such ground required independent inquiry Any matter asking for fresh inquiry could not be entertained within scope of review powers.

Sabir Hussain alias Tonchi- v. The Slate P L D 1989 SC (AJK) 1; Mirza Akbar Ali v. Mirza Iftikhar Ali and others P L D 1956 FC 50; Mst. Nargis Bibi and others v. Muhammad Ibrahim and another 1983 C L C 370 and Mst. Sardar Begum and 2 others v. Ahmad Khan and 9 others 1983 C L C 621 rel.

Manzoor Hussain Gillani for Petitioner. Sardar Rafique Mahmood for Respondent.

The review petition is addressed against the order of this Court passed on October 16, 1988, on the following grounds:

(i) that the application for review appended at page 138 of the file of Services and General Administration was fake one as it was replaced for an application filed by the non petitioner for obtaining

no objection certificate:

(ii) that the aforesaid facts were not considered by the Court.

2. Abdul

Rahim was Executive Engineer in Public Works Department. He was suspended from service on the basis of allegations of misconduct, on September, 5, 1976. In consequence of an inquiry he was retired from service, on November 21, 1978. He moved a review application against the order of his retirement on August 11, 1985, but it was rejected on May 4, 1987. An appeal was preferred before the Service Tribunal which was accepted in shape of his reinstatement in service accompanied by punishment by stopping some increments etc. The order was challenged by the Government in this Court. The learned Advocate General reduced the controversy to a question of fact and urged that in case the application of non petitioner dated January 14, 1979, was available on the file of Services and General Administration, as determined by the Service Tribunal, he would not press the appeal. The suggestion made by the Advocate General was accepted by Mr. Rafique Mahmood Khan, counsel of the non petitioner. The record was summoned and the proposition raised by the learned Advocate General, was elaborately dealt with in para 5 of the impugned judgment. It is reproduced.

"In view of the position taken up by Mr. Gillani, I perused the record. On the file of Services and General Administration No. 77/12/PWD/Services titled "Suspension of the Officers of P.W.D." various applications of non petitioner are appended. At page 138 the

relevant application of non petitioner is also available. It is dated January 14, 1979. In his application, among others, non petitioner submitted that order of his retirement be set aside and he may be reinstated. Presence of the application was not disputed before the Service Tribunal. However, it was explained that the application was not properly drafted so as to accept it as review petition, as contemplated under law. It is undenied that law contemplates no hard and fast form of such applications. The objection was rightly shelved. In presence of the circumstances described above the objection of limitation is not sustained."

3. The power of review is conferred on this Court under order XLVI rule 1. It postulates that subject to law and practice of the Court. the Court may review its judgment or order in civil proceedings on grounds similar to those mentioned in Order XLVII rule 1 of the Code. Under Order XLVII, rule 1 the scope of review is restricted A to point of law and matters emanating from facts on record. Review is permissible on the satisfaction that a point of law lost sight of the Court or an error resulting in miscarriage of justice, was made by misreading, non reading or over looking a fact. In other words, it must constitute an error on the face of record. In the instant case, it is admitted by the learned Advocate General that allegation of replacement of the application on the file of Services and General Administration, was not raised in the objections, filed on behalf of the petitioner before the Service Tribunal. The true position is that

before the Service Tribunal, it was accepted on behalf" of the petitioner that the relevant application was available on record but it was not constituted in the form of review application. This point was adequately dealt with by the Service Tribunal and reference to it was made by this Court in the impugned order. At second stage, the petitioner failed to raise the objection in question in petition for leave to appeal. Moreover, during the arguments in this Court the learned Advocate General, for reasons unknown, made no reference whatsoever, to the aforesaid allegation. This is just to highlight that the allegation raised now is altogether a new and independent point which is sought to be resolved in exercise of review powers. The learned Advocate General B was unable to satisfy that there was a practice in the Court to entertain a new ground of attack or allegation in a review petition. Rather it is agreed that a new point resting on question of facts is seldom entertained in a review petition. In the present case the unique position is that the record alleged to be tampered with was in the custody of the petitioner. The application of non petitioner bearing a date of January 14, 1979, was admittedly on the aforesaid file. It is yet unknown as to when, how and by whom it was replaced. The authorities concerned are not shown to have taken any step against the defaulter or culprit. We were keen to know as to what steps were taken by the time against the alleged culprit, but to our dismay it is informed that no criminal proceedings are lodged by the authorities against the culprit by this time. This suggests that the authorities have not given importance to the matter and no probe is directed. Be that as it may, the fact remains that the ground raised in the) review petition is not a fact strictly forming part of record of the Court. It requires an independent inquiry. A matter asking for fresh inquiry is not to be entertained within the scope of review powers. This view finds support from Sabir Hussain alias Tonchi v. The State P L D 1989 SC (AJK) 1). That was a criminal case but the learned Chief Justice while analysing the scope of review under Supreme Court Rules emphasised that:

"Phrase "apparent on the face of the record" connotes that error must be so manifest and so clear that to keep such an error on the record has the effect of perpetuating visible injustice. Error, either of fact or law must be an error which is self evident and does not require elaborate discussion."

4. In Mirza Akbar Alt v. Mirza Iftikhar Ali and others P L D 1956 F.C. 50, the scope of review was considered by the Court. Mr. Justice Muhammad Munir, Chief Justice, as he then was, spoke for the Court and observed:

"The Court will not review findings of fact, which findings were recorded after hearing full arguments and on a consideration of the entire evidence and the reasons given by the High Court, there being no allegation that any material fact which was apparent on the record escaped the notice of the Court." Review refused.

5. In Mst. Nargis Bibi and others v. Muhammad Ibrahim and another 1983 C L C (SC AJK) 370 and Mst. Sardar Begum and others v. Ahmed Khan and 4 others 1983 C L C (SC AJK) 621, this; Court examined the scope of review and declined to exercise the same in absence of an error on the face of record. In both the cases, the Court rejected the prayer to review its judgment on the basis of facts of previous cases or facts not brought on the record of the Court.

In presence of the reasons listed above I find no force .in the, I petition. It is, therefore, dismissed with costs.

A . A . / 247 / S . C . A . Revision petition dismissed.

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