Tauqir Ahmad Vs Registrar, PHC and others

PESHAWAR HIGH COURT

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

JUDGMENT SHEET

WP No. 1340-A/2019

Date of hearing 15.04.2025

Petitioner (Tauqir Ahmed, Advocate) in person.

Respondents (Peshawar High Court, through Registrar & others) by Sardar Basharat Khan, Addl: AG with Mr.Zahoor Shah Khalil (Representative of Peshawar High Court).

JUDGMENT

SYED MUDASSER AMEER. J. This petition challenges the vires of Rule 10(2), Chapter-1(a), Volume-V of Peshawar High Court Rules and Orders inserted vide Notification dated 14.06.2018 The said rule has been made by the 'High Court' in exercise of powers under Article 202 of the Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution'). The relevant portion of the Notification 1S reproduced below for ready reference:

PESHAWAR HIGH COURT, PESHAWAR

NOTIFICATION

Dated Peshawar, tJre 74.06.2078.

No.155/J. In exetcise of the powers conferted by Article 202 of the Constitution of the Islamic Republic of Pakistan, Honourable the ChiefJustice andJudges of this Court pleased to make the following ^re amendments in Volume-V of the High Coutt Rules and Order:-

AMENDMENTS

1,. In Chapter 1-A(a), Volume-V, the existing r-ule 10 shall be te-numbeted as rule 10 sub-rule (1) and thereafter the following sub-rules shall be added: (2). No application fot review shall be entertained unless the party seeking review furnishes a cash security of Rs.

ten thousand which shall stand forfeited if the teview petition is dismissed or shall be paid to the opposite patq if the review petition is contested. (3). Except with leave of the Court, no application for review shall be entertained unless it is flled and certified by the Advocate who had argued the case tesulting into the order sought to be reviewed not shall any other advocate, except such Advocate, be heatd in support of the application for review unless the Court has dispensed wrth such requirement.

2- Petitioner's case, in essence, is that the security deposit of Rs.10,000/- required at the time of filing of application for review is violative of fundamental right of the citizens pertaining to access to justice, fair trial and right of hearing. This argument is essentially based on the premise that to get a judgment/order, passed by the High Court,

reviewed by the same Court is part of the right of hearing and thus, a 'right'. We are unable to agree with the said argument, or even the very basis this argument has been built upon. In our opinion, review is not a right. It has never been. To construe otherwise would be against the very statutes providing for review. Review of the Judgments/Orders of the High Court has been provided for in Rule 10, Chapter 1-(a), Volume-V of the Peshawar High Court Rules and Orders and section ll4 read with Order XLVII of Civil Procedure Code, 1908 ('CPC'). For convenience of reference the relevant provisions are reproduced below

"11.4. Review. (1) Subject as afotesaid, any person considering himself aggtieved

(r)by a decree ot ordet ftom which an appeal is allowed by this Code, but from wluch no appeal has been oreferred-

(b)by a decree or ordet fiom which no appeal is allowed by this Code, or

(.) by a decision on a teference from a Court of Small Causes, may apPly fot a review of iudgment to the Court which and the Court mav make such order the;eon as it thrnks fit.

(2)Nothing contained in subsection (1) shall apply to a review of any judgment ptonounced ot arry order made by the Supreme Court.

(Jndetlining suPPlied)

ORDERXLYII

REYIEW

L. Application for review of iudgmcnt. (1) Any person considedng himself aggrieved

(a)by a decree ot 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

(.) by a decision on a tefeteuce ftom a Court of Small Causes, and rvho, from the discovery of nelv and impottant matter or evidence which, zftet the exercise of due diligence, was not within his knowledge ot could not be Produced by him at the time rvhen the dectee was passed or order made, or on accotrnt of some mistake or eror apparent on the face of dre tecotd, or fot any other sufficient reason, desires to obtain a rgrr.ew of tne aecree pas made against him, may aPPly for a review of iudgment to the Cout which nassed the decree or made the order.

(Jnderlining suPPlied)

Q) A patty who is not appealing from a decree or ordet may apply for a teview of judgment notwithstanding the pendency of an appeal by some other party except rvhete the ground of such appeal is common to the

applicant and the appellant, ot when, being respondent, he can present to the Appellate Court the case on which he applies fot the review.

Volume-V Chapter-1(a)

Rule 1O-Every appbcation for review of a judgment or order of a Division Bench, ot of a Single Bench of the High Court presented by an Advocate shall be signed by him, and he shall certify that the gtounds contained thetein are good and sufficient grounds for the teview sought. No Advocate shall be heard in support of ^rt application fot review of any such judgment or ordet unless and untii he has certifred in the manner above prescribed the grounds already taken or any amended grounds of application.

3- It is clear from the above provisions of law that review is a discretionary relief provided in alternate to the primary remedy. The litigant has a choice; he may either challenge the JudgmentlOrder of the High Court before the Supreme Court or he may choose to file a review where the required grounds are made out. However, it is settled that even ifthe required grounds are made out, it is still the discretion of the

Court to grant a review. The apex Court has repeatedly held that the granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate grounds exist but the discretion must, as in the case of all judicial discretions, be exercised upon sound judicial principles (Faqir Muhammad Khan v. Akbar Shah:

t973 The review is not, therefore, as a matter of right, even though a ground for a review exists (Muhammad Zafarullah Khan v. Muhammad Khan: PLD 1975 SC 300 / 1975 SCMR 473). It is a settled principle of law that the remedy of review cannot be sought as a matter of right (Khan alias Khani v. The State:2008 SCMR 880). Thus there is no 'right' in review. A person may have, in appropriate cases, a'right' to get his case pertaining to enforcement of fundamental rights adjudicated upon by the High Court, but he has no 'right' to get the said adjudication reviewed for a second time by the High Court. The re-opening of a matter decided after hearing the parties has nothing to do with enforcement of fundamental rights. Therefore, the entire edifice built upon this notion is untenable.

4- A similar challenge also came up for adjudication before the Supreme Court of India in

the case of Lal Ram v. Supreme Court of India & others (AIR 1967 SC 847). It was contended that Order XL, Rule 2(2) of the Indian Supreme Court Rules, 1966 (which required security deposit of Rs.2000/- as a pre-condition for filing a review petition) was ultra vires Article 14 (Equality before law) of Constitution of India, in that it amounted to obstructing the enforcement of fundamental right under Article 32 (right to move the Supreme Court for enforcement of fundamental rights) thereof' Their Lordships, held as follows:

"There is an essential distinction between application for the ^rr enforcement of a fundamental right and an application to review an ordet made therein. The main pulpose of a review petition is not to enforce a fundamental rtght but to reopen 2n order vitiated by an error on the face of record or for such othet feasons."

It was further held "The fact that deposit of security is a pre-condition only rn the case of a review petition does not lead to any discrimination because the main difference between a review peution and other ptoceedings is that in case of fotmer this Court is asked to reoPen a matter which has been closed aftet hearing the parties. This is a sufficient reason to sustain the distinction and it

affords a reasonable nexus to the objects sought to be achieved by the imposition of the pre-condition."

5- Thus, it is settled that'Review' is not a right.

While a party may request a review of a Court's decision, there is no inherent right to such a review and it is upto the Court to determine whether or not to grant it. It is also clear that the deposit of any security amount as pre-condition for filing a review petition does not in any manner curtail the right to seek the enforcement of any fundamental right.

6- It is also to be noted that the Rule under challenge does not impose any fee or cost at the time of filing of the review petition, rather it is a security deposit, which is to be returned to the petitioner upon success of his petition. However, it is to be given to the opposite party where it fails after a contest, so that at-least some consolation is provided to the party who, after being successful, was again dragged into litigation before the same Court. This clearly shows that a person who files a review petition actually having good and sufficient grounds need not worry about the deposit of the said security, as he is most likely to get it back upon the success of his petition.

The frivolous and unnecessary petitions, however will have to pay for the wastage of time and process

of the Court as well as the other side. Thus, to check the menace of frivolous and unnecessary petitions cannot be said to infringe upon the rights of any person.

7- Additionally, the sheer abundance of frivolous and unnecessary review petitions required that such measures be taken. Although the relevant Rule 10 of the Peshawar High Court Rules and Orders already required that every review petition shall be accompanied by a certificate given by the advocate that there are good and sufficient grounds for review, the said certificate was, more often than not, issued by the learned advocates in routine and without application of mind. The honourable Supreme Court also, faced with a similar situation, had to increase the security deposit of Rs.2,000/- to Rs. 1 0,000 l- by substituting Rule 7 of Order XXVI of the Supreme Court Rules, 1980, vide Notification dated 14.07.1998. This was also done despite the similar requirement of issuance of certificate by Advocates are provided in Rules 4 and 5 of the ibid Order XXVI. For convenience of reference the same are reproduced below:

..ORDE,R XXVI

REVIEW

4.The Advocate sigmng the application shall specift in brief the points upon which the PraYer for review is based and shall add a certrf,lcate to the effect that consistendy with the law and practice of the Coutt, a review rvould be justifiable in the case. The certificate shall be in the fotm of a reasoned opinion.

5.In case the Court cofnes to the conclusion that the Review Application fi.led vas vexatious or frivolous, the Advocate or the Advocate-on-Recotd, drawing the application shall render himself liable to disciphnary action.

7.No application for revicw shall be entertained unless party seeking revielv firmishers a cash security of Rs.10,000/-, r,vhich shall stand forfeited, if the Review Petition is disnissed or shall be paid to the opposite-party, Lf the l{eview Petition is contested."

8- Ho.,rrever, even such strict rules and enhanced the security deposit have not been able to fetch the desired results in curtailing the filing of frivolous review petitions. This is also eviclent from the following paragraph in the case of Muhammad Khaliq v. Gtrl Afzal Khan (pLDAISSC2+7):

"6. We have noted that revierv petitions are increasingly being flled as a matter of routine. As a consequence, the certificate required under Order XXVI, Rules 4 and 5 is given as a matter of cowse bY the leatned Advocates without aPPlication of mind. Statistics provided bv thc Office shorv that 7324 revtew petitions were filed in 201.3 and 2074..We also note il:rat a certificate has been givcn in the present case by the leamed counsel to the effect that "according to law and established practice of this Hon'ble Court it is a fit case for review .'.". Fat from being a fit case for review, we find that the Law and established ptactice of this Court demonstrates that this is a frivolous petition where a certificate in terms of Order )O(VI, Rule 4 has becn filed by the learned counsel in a mechanical and unthinking manner. Such Practice is to be deptecated in the interest both of the litigant and the legal system and also to further the Constitutional imperative of ensuring cxpeditious and inexpensive jusuce.

7.This revierv petition being without merit is, therefore, dismissed widr costs."

9- In such circumstances the requirement of security deposit is not only fully justified, it was badly needed. Frivolous review applications impose a significant burden on the public exchequer as well as on the parties in whose favor an order or judgment

has been passed. Consequently, the imposition of costs on such applications is a well-established practice worldwide, aimed at deterring chronic and habitual litigants from re-opening closed matters and ensuring finality in litigation. In the case of Lal Ram v. Supreme Court of India & others (supra) the Indian Supreme Court enumerated the reasons justiffing the security deposit as follows:

"The rai.son detet for the rule may be tfuee-fold, namely;

(, The petitioner has been given a

fi.rll hearing and his case has been disposed of on metits;

(ii)It is a detertent against frivolous applications; and

(-) It is to safeguard the interests of the respondent who has the judgment in his favout."

10- Thus it is clear that the requirement of security deposit is based on solid reasons and valid grounds, whereas the petitioner could not make out any valid ground to challenge the same. Consequently, it is concluded that there is no merit in the instant petition.

11- The fact that in certain circumstances a rule proves prejudicial to the interest of a petitioner cannot invalidate a rule, when this Court admittedly has the power to make it under Article 202 of the

Constitution. Regarding this power and the justiciability of the rules, made in exercise thereof, before this Court under Article 199, a preliminary objection was also raised by the learned Additional Advocate General. It was contended that the rule under challenge, having been made by the 'High Court', the same cannot be challenged before this Court under Article 199 for the reason that the 'High Court' has been specifically ousted from the definition of a person in Article 199(5) and therefore regardless of the nature of the power/function exercised by the 'High Court', no writ petition could be filed against, as no writ could be issued to, a 'High Court'. More so, when the impugned rule having been made by the fulI court, i.e. honourable 'the Chief Justice and the Judges', is being challenged before a bench of one, two or a few of them. In support he relied mainly on the case of Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others (PLD 2021 Supreme Court 391), wherein the apex Court has held as follows:

"'We ate clear in our mtnds that Chief Justices or Judges of a High

Court exercising their executive, administrative or consultative

actions ifl the context of the instant matters do not act as persona designata, rathet act fot and on the behest o( and as a High Court as defined in Article 1,92 of the Constitudon and are

thetefore not amenable to the constitutional iurisdiction of

Hlgh Court under Article 199 thereof."

12- In Gul Taiz case the administrative, consultative and executive decisions of the Chief Justice and/or the Judges of the High Court were in question. Whereas in the instant case, under challenge is a rule made by the 'High Court' under Article 202 of the Constitution. Earlier in the case of Ch. Muhammad Akram v. Islamabad High Court and others (PLD 2016 SC 961) the apex Court, while considering Articles 199 and 208, had drawn a distinction between Judicial and non-judicial powers/functions/decisions and had concluded that the ouster contained in Article 199(5) applied only to judicial decisions and the exercise ofjudicial powers of the Judges ofthe High Court, whereas the exercise of other powers such as administrative, consultative or executive would not fall within the ambit of the said exclusion and would thus be open to challenge under Article 199. However, in Gul Taiz case, the

apex Court did not agree with the said interpretation.

While revisiting/ovemrling Ch. Muhammad Alcram's case, the apex Court held that there is no such distinction provided in the Constitution and that the doctrine of Casus Omissus being inapplicable to the Constitution, nothing can be read into it. If the framers of the Constitution had intended there to be such a such a distinction, the language of Article 199 would have clearly provided the same. Thus, the said distinction having been laid to rest by the hon'ble Supreme Court, we find no reason to resurrect the same in the context of High Court's Rules making powers under Artrcle 202.

13- Furthermore, in Gul Taiz case the apex Court after considering Articles 176, 192, 199 and 208 also laid Cown the 'but for'test in the fbllowing terms:

"Similarly in the instant matter, but for the person's appointment as a Judge (thereby constituting p^tt of a High

Court or the Supreme Court under Articles 192 and 176 suPra respectively), would the funcuon in issue be exercised? If the answet to this question is yes, then such function would not be immune to challenge under Article 199 supta. In this case u/ith respect to the administrative, executive or consultative acts or orders in question, dre answer to thc 'but fot'

test is an unqualified no, therefore such acts or orders would in out opinion be protected by Arucle 199(5) of the Constrtution and thereby immune to challenge undet the writ iudsdiction of dre High Court."

Applying the said'but for'test in the instant case, the answer would be an even more emphatic no. More so when the rule under challenge has been made by not one or few judges, rather it has been made by the 'High Court' as defined in Article 192, i.e.'honourable the Chief Justice and the Judges'

14- Moreover, the objection so taken makes good sense and it also appeals to reason that a rule made by all the Judges should not be subject to scrutiny and challenge before one, two or even a few of them. The situation would be exactly as observed in a judgment from English jurisdiction and quoted by the apex Court in Gul Taiz case (supra); "the process involves the rather ludicrous position that the Judges are called upon themselves to show cause to themselves". This would also be against the well- settled principle of 'comity of judges' .ln Asif Saeed v. Registrar Lahore High Court and others (PLD 1999 Lahore 359) Mian Saqib Nisar, J. (as he then was) speaking for a thlee-member bench of the honourable Lahore High Court explained the position as follows:

"1.4. The contention from the petitioners' side that the administtative function of the High Court can be subjected to writ, can lead to ludicrous situations which can be rvell illusuated.. .

It is clear that the Suptemc Court of Pakistan has also been excluded from the definition of the word "person" clubbed, togethet rvith the High Court. Undoubtedly, it is

inconccivable that the order of the Supreme Court on its iudicial side can be challenged before the High Court in rvrit, irrespective of sub-Article (5). Nou, if the interpretation of the petitioners that administrative order of the l{igh Coutt can in rvrit be challenged is accepted, the same rulc rvould also apply to the SuPreme Court, situation may arise r,vhere a ftrll Court of the apex forum takes a non- judicial decision than on the basis of above reasoning a SingleJudge of this Court may issue writ to quash the same which rvould he just

preposterous. This also applies to the administrative decision taken by the FuIl Court of a High Court, partictrlarly, when the salrle Judge/Judges arc p^rry b such a decision. There can be nunlerous exarnples cited to show fallacy of such an interpretation. If the same rule is allowed to prevail, rulcs rnade by the Supteme Court, undet Article 1,91, and by the High Cour:ts, under r\rticles 2C3 and 20?, c.re not safe frorn attack and rnay become subject

of every day's liugauon leading to a hazardous situation."

15- It is reiterated, as was done by the apex Court while quoting the words of Justice Anwarul Haq, that the principle of judicial comityr has been stated only to explain the underlying reason for exclusion of the Supreme Court and the High Courts from the definition of 'person' as provided in Article 199(5).

16- f'herefore, respectfully following the ratio laid down by the apex Court, we conclude that the rules made by the 'High Court' in exercise of powers under Article 202 of the Constitution is no exception and cannot be bifurcated on any ground from the settled law that no writ petition is competent against a High Court under Article 199 of the Constitution.

Thus, the instant petition being non-maintainable is liable to dismissal on this score as well.

17- For what has been discussed above the instant petition being non-maintainable as well as being bereft of merit is dismissed.

Announced.

Tahir PS

JU E

JUI) E

Hon'ble Justice Sadiq Ali and Hon'ble Justice Syed Mudasser Ameer'