MABUSUL WARIS And Another vs ADDITIONAL SECRETARY TO THE GOVERNMENT OF N. W.F.P. And Other
This review petition arises out of a previous judgment of the Supreme Court in a civil appeal which had set aside a High Court finding regarding an administrative order passed by the Additional Secretary, Home and Tribal Affairs Department, but instead of remanding the matter, had directly restored an earlier order dated 7-6-1970. The core legal question addressed in the review is whether the Supreme Court, upon finding the High Court's dismissal of a writ petition in limine to be erroneous, should have remanded the case to the High Court for a hearing on merits rather than substituting its own final decision. The Supreme Court held that the inadvertent restoration of the administrative order was erroneous, allowed the review petition, and remanded the case back to the High Court to hear the writ petition afresh on merits. The key principle laid down is that where a writ petition is dismissed in limine and the appellate court finds the preliminary dismissal improper, the appropriate course is to remand the matter to the High Court for adjudication on merits rather than deciding the merits directly.
- What is the appropriate course of action for an appellate court when it sets aside a High Court's limine dismissal of a writ petition?
- Can the Supreme Court substitute its own final finding of fact instead of remanding the case to the High Court or tribunal?
- Under what circumstances will a review petition be allowed when an order is inadvertently recorded?
ORDER
MIAN BURHANUDDIN KHAN, J.--This review petition arises out of judgment of this Court delivered in Civil Appeal 23/P, dated 9-12-1985 wherein it was observed: "We cannot uphold the finding of the learned High Court. The matter into consideration was to see whether or not the Additional Secretary, Home and Tribal Affairs Department, Peshawaz had passed his order, dated 4-10-1981 after proper appraisal of the evidence, and was his aforesaid order, supported by any legal precedent. The High Court in such matter can go into the question and decide the matter one way or the other..."
But instead of remanding the case to the High Court it was recorded that the order of A.C.
Timargara, dated 7-6-1970 shall stand restored. Review of the order of this Court dated 9-12-1985 is now sought on the ground that the learned High Court had dismissed the writ petition in limine and, therefore, if this Court was of the view that the preliminary order of the High Court was erroneous then the writ petition should have been ordered to be admitted to full hearing, and the case remanded to the High Court because the learned High Court had not announced any judgment in the writ petition; or that if this Court was of the view that on account of misreading and non-reading of evidence writ petition was competent on question of facts then even in such cases, time and again it has been laid down by this Court that in such cases the High Court should not substitute its own finding of fact in place of the finding of the Tribunal and the only course open was to remand the case to the Tribunal directing it to read the evidence properly again and then decide in accordance with law.
2. We have examined the contentions raised by the learned counsel. Notice was issued to the respondent who appeared before us today and did not seriously contest the issues. We agree that the findings have been inadvertently recorded inasmuch as the order of A . C . Timargara, dated 7- 6-1970 was restored, whereas the case should have been remanded to the High Court. Accordingly, we allow this review petition and remand the case to the High Court to hear the writ petition afresh on merits, and decide in accordance with law.