ABDUL MAJEED AND ANOTHER vs CHIEF SETTLEMENT COMMISSIONER AND OTHERS

ORDER

1. ' MUHAMMAD HALEEM, J.-The petitioners seek review of our order dated 21st of March, 1978, dismissing Civil Petition. No, K-84 of 1977, on the grounds firstly, that the order of the Deputy Settlement Commissioner dated 5th of November, 1959, transferring the entire property to the predecessor-in-interest of respondents 5 to 12 was illegal as he was in occupation of only a portion of the property ; secondly, that the transfer Form of Mirza Yousaf Beg, the predecessor-in-interest of petitioner No, 2, was illegally rejected as he was not heard before its rejection nor was any reason given ; and thirdly, that the plot measuring 1100 sq. Yds. Could not have been transferred in violation of the law restricting it to three times the plinth area. The first two submissions' relate to the merits of the case and if we were to entertain them, it would amount to re-hearing of the petition which is beyond the scope of review A jurisdiction. As for the third, it was not raised at the hearing of the petition and, therefore, we would not permit it: to be raised now consistent with the practice of the Court as it was open to the counsel to agitate it B while arguing the petition.

2. Accordingly, on merits the review petition has no substance.

3. But before this petition, Was argued, the learned counsel for the caveators-respondents 5 to 12 raised a preliminary objection that the review petition was improperly constituted as it was not drawn and signed by the counsel who argued the petition as required by rule 5 of Order XXVI of the Pakistan Supreme Court Rules, 1956. The review petition is drawn and signed by Mr. Ahmadullah Farooqi, who was the Advocateon-Record in Civil Petition No, K-84 of 1977. The learned counsel for the petitioners, to get over the objection, relied on Sh. Anwarul Haq v. Mst. Surayya Parveen and (1)

4. Mushtaq Ahmed alias Mushtaq Hussain and others v. Hakim Bibi and others (2). It is true that in these two cases this Court held that the requirement of rule 5 of the Supreme Court Rules, 1956, was satisfied if the junior counsel, who was present at the hearing, had drawn and signed the review petition, but this cannot be regarded as an inviolable practice as in that eventuality the object of the rule would be frustrated having regard to the limited scope of the review jurisdiction ; and it is for this reason that the discretion is given to the Court to dispense with the presence of the Advocate who had argued the petition. We may here observe that the insistence or the presence of the Advocate is for the reason to confine him to what transpired in the course of the hearing which purpose cannot be achieved if some other counsel were to argue the review petition. Accordingly, the rule gives discretion to dispense with the presence of the Advocate for some substantial reason and in the instant case no reason was given as to why the counsel who had argued the petition and was available had not drawn and signed the petition if there was any merit in it.

5. ' The petition is, therefore, dismissed on both these grounds.

(1) 1971 SCM R171 (2) 1971 SCM R 235