Mian RAFIQ SAIGOL and anothers vs BANK OF CREDIT & COMMERCE

1. ' SAIDUZZAMAN SIDDIQUI, J.--The appellants are seeking review of . The judgment of this Court dated 13-2-1996 passed in C.As. Nos.570 to 572 of 1994. Mr. A.H. Pirzada the learned Senior Advocate Supreme Court for the petitioners firstly, contended that there is an error apparent on the face of the judgment inasmuch as this Court while distinguishing the judgment of Indian Supreme Court in the case of M/s. Mechalec Engineers v. M/s. Basic Equipment Corporation (AIR 1977 SC 577) observed that the decision of the Indian Supreme Court proceeded on a different provision of law in the Indian Code of Civil Procedure, while in fact the said provision of law was introduced in the Indian Civil Procedure Code, after about 3 months of the decision by the Indian Supreme Court in Mechalec Engineer's case. The second contention of Mr. Pirzada is that the decision of this Court in Fine Textile Mills Ltd. v. Haji Umer (PLD 1963 SC 163) stood substantially modified by the decision of this Court in Abdul Karim Jaffarani v. United Bank Ltd. (1984 SCM R 568), and therefore, in view of the law declared by this Court in Abdul Karim Jaffarani's case the .Petitioners were entitled to grant of unconditional leave to defend the suits instituted by the respondents but this aspect of the case did not receive due consideration in the impugned judgment of this Court. The third contention of the learned counsel for the petitioners is that the effect of granting leave to defend the suit by the trial Court on condition of furnishing bank guarantee, almost had the effect of refusing leave to the petitioners in view of the colossal amount involved in the suits. The last contention of Mr. A.H.

2. Pirzada is that the Legislature having realised that the grant of leave to defend suits in banking cases on condition of furnishing security may some time prove to be very harsh and even result in the miscarriage of justice in some cases, have done away' with the provision relating to grant of leave on condition of furnishing security, while enacting Banking Companies (Recovery of Loans, Advances, Credits and Finance) Act XV of 1997 promulgated on 2-6-1997, which repealed the Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979), The Banking Tribunals Ordinance 1984 (LVIII of 1984) and the Banking Companies (Recovery of Loans, Advances, Credits and Finance) Ordinance, 1997 (XXV of 1997). Mr. Pirzada relying on the provisions of Act XV of 1997 contended that this Court in order to do complete justice may reconsider the cases in the light of this new development and grant leave to petitioners either unconditionally .Or against security of some immovable property.

3. ' Mr. Chaudhry Muhammad Farooq, the learned counsel for the respondents on the other hand contended that the first three contentions of Mr.Pirzada, are nothing but reiteration of the same grounds which were urged at the hearing of the appeals but were rejected by the Court after consideration. These contentions, according to Mr. Ch. Muhammad Farooq, cannot be allowed to be raised again in review proceedings as in the garb of proceedings for review, the petitioners cannot obtain re-hearing of their appeals. Replying to the last contention of Mr. Pirzada, Mr. Ch. Muhammad Farooq, argued that Act XV of 1997 was promulgated long after the impugned decision of this Court and therefore, petitions are not entitled to seek review of the impugned judgment on the basis of the provision contained in Act XV of 1997. Mr. Ch. Muhammad Farooq, relied on a number of reported decisions of this Court in support of his above contentions.

4. Before considering the above contentions of the learned counsel for the arties we would like to examine the scope of review proceedings before this Court in the first place. This Court derives the power to review its decisions under Article 188 of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as the Constitution only) which reads as follows:-- "188. The Supreme Court shall power, subject to the provisions of any Act of Majlis-e-Shoora (Pat 'lament) and of any rules made by the Supreme Court, to review any judgment pronounced or any order made by it."

5. To regulate the practice and procedure of this Court and to govern the proceedings initiated before it, this Court has framed the Rules known as Supreme Court Rules, 1980 (hereinafter to be referred as the Rules' only) in exercise of the power conferred by Article ;91 of the Constitution. Rule 1 of Order XXVI which regulates the review proceedings before this Court is as follows:-- "Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceedings on grounds similar to those mentioned in Order XLVII, Rule 1 of the Code and in a criminal proceeding on the ground of an error apparent on the face of the record."

6. The power of review available to this Court under the above provisions in respect of matter arising on the civil side is analogous to the power of the Civil Courts under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. The scope of review proceedings in relation to the orders/judgments passed by this Court came up for consideration before it in a large number of cases, but we do not propose to examine here in detail all these cases. However, reference to particular observations in some of these cases which may be relevant to the points argued in the above review petitions will be made where necessary, while others will be referred only by their citation.

7. ' In the case of Haji Saifullah Khan v. Federation of Pakistan (PLD 1990 SC 79) the petitioner in support of his review petition contended before a Bench of this Court (consisting of ten learned Judges of this Court, including the then learned Chief Justice), that this Court having held the dissolution of National Assembly illegal, it could not be restrained from continuing to function till the expiry of its terms of 5 years, and therefore, there was an error in the order of this Court dated 5-10- 1988 passed in appeal with regard to the nature of the order this Court could pass. This contention was repelled by the learned Judges as follows:-- "The main ground urged by Sh. Shaukat Ali, learned counsel for the petitioner, in support of this petition for review, is that after this Court having held that the National Assembly coming into existence pursuant to the general elections of 1985 was illegally dissolved by the President on May 29, 1988, the said National Assembly could not thereafter be restrained from continuing to function till the expiry of its normal terms of 5 years, namely, until March 1990, and in so doing the Court has committed an error with regard to the nature of the orders it can pass under Article 199 of the Constitution. Accordingly, this is a fit case for review.

8. ' We do not agree. It is correct that the Court did find that the order of dissolution passed by the President on May 29, 1988, was not justified in law because "the prerequisites prescribed for the exercise of the power conferred by Article 58(2)(b) did not exist" and, therefore, the order of dissolution did not fall "within the four-corners of Article 58(2)(b) of the Constitution". ' However, it refused the further declaration that the said order is of "no legal effect" and, accordingly, the order of dissolution was allowed to continue and the consequential order for holding of elections for a, fresh National Assembly endorsed and reinforced. This was a conscious and deliberate decision for which full reasons were given in the impugned judgment. The petitioner may or may not agree with those reasons. But where a conscious and deliberate decision has been made with regard to the nature of orders which it is empowered to pass under a provision of law (Article 199 in this case) only. Because another view with regard thereto is canvassed cannot and does not constitute a ground for review." (The underlining is by us).

9. ' In the case of Colony Sarhad Textile Mills Ltd. v. Superintendent, Central Excise Land Customs (1981 SCM R 867) it was argued before a Bench of three learned Judges of this Court in review proceedings, that the Court while disposing of the appeal and rejecting the contention of the appellant relied on a judgment of Privy Council which was misread and therefore, it amounted to an error apparent on the face of the judgment which should be corrected in review. The contention was rejected by the Court as follows:-- "The only other error apparent alleged in the judgment was that the Court had erred in rejecting learned counsel's submission that excise duty could not by definition be levied on goods which had been exported. But, whether the view taken in the judgment be right or wrong, the question is whether there was an error apparent in the judgment; and the view taken in the judgment that excise duty can be levied on exports is supported not only by definitions in standard dictionaries, but also by judgments of the superior Courts of the common law countries including the judgments of the Privy Council, of the Australian High Court and of the Indian Supreme Court, therefore, we asked the learned counsel to clarify his submission. He said that the Court had relied on a judgment of the Privy Council in Atlantic Smoke Shops Ltd. v. Conlon and others (Attorney- General of Canada) and others (1943) 2 All ER 393 but as it had misread the judgment, there was an error apparent in it.

10. Now, Lord Simon, L.C., who delivered the judgment of the Court defined the word "excise" as follows:- - 'The word is usually (though by no means always) employed to indicate a duty imposed on home manufactured articles in the course of manufacture before they reach the consumer.'

11. ' The words underlined in this passage have been underlined by us, because, according to learned counsel, they mean that excise duty could not be levied on exports. The argument assumes that the word 'consumer' in these words means the consumer in the home market only, and, therefore, the submission of learned counsel involves reading into the observations of Lord Simon, L.C., a qualification not contained in them. Secondly, according to Lord Simon, L.C., the word 'excise' is usually (though by no means always) employed to indicate a duty imposed of the types specified the passage. Therefore, even if we read into the passage the qualification which learned counsel wants to read into it, the passage does not support the appellant's case, because of the qualifying words 'usually' and 'though by no means always.' Thirdly, and this is most important, a review can lie on the ground of an error only if it is material to the conclusions reached in the judgment sought to be reviewed. Therefore, we had pointed out that the Court had rejected the construction which the appellant sought to place upon the word 'excise' not only on the basis of the Privy Council's judgment, but on the basis of several other judgments and on the basis of the meaning of the word 'excise' as defined in standard dictionaries.

12. In these circumstances, even if it is assumed that the Privy Council's judgment was misread this alleged error would not be material, because the view taken by the Court was supported by other judgments about which Mr. Mumtaz Hussain did not attempt to say a word. Obviously, therefore, the so-called error was not material and cannot furnish a ground for a review." The underlining is by us)

13. ' In Muhammad Sharif Puri and another v. The Additional District Judge (With Powers of Settlement Commissioner, Lahore) and another (1985 SCM R 6) the petitioner applied for review of the judgment of this Court dismissing his petition for leave to appeal and contended that as many as 12 error of laws and facts had crept into the judgment of the Court which necessitated review of the impugned judgment. A Bench of two learned judges of this Court rejected the contention as follows:-- "The counsel for the petitioners argued at great length in support of the above submission and respondent No,5 also entered appearance to contest the review petition. In fact, the raising of these submissions was an attempt to obtain a reversal of the opinion formed by this Court in regard to the merits of the claims of the petitioners and the question which falls for consideration is as to whether it would be proper for us to examine them afresh.

14. It is now well-settled that the exercise of review jurisdiction does not mean a rehearing of the matter and that as finality attaches to the orders, a decision, even though it is erroneous per se, would not he a ground to justify its review. Accordingly, in keeping with the limits of the review jurisdiction, it is futile to reconsider the submissions which converge on the merits of the decisions."

15. (The underlining is by us).

16. ' In Muhammad Abbas Khan Abbasi v. Government of Pakistan (PLD 1984 SC 67) a Bench of this Court (consisting of five learned judges including the then learned Chief Justice) in a review petition examined the argument as to what errors would fall in the category of errors apparent on the face of judgment or order. The relevant observations in the above case reads as follows:-- "After hearing the learned counsel for the parties at some length we find that the legal requirements for review of the judgment are not made out in the circumstances of the present case. As explained by this Court in the recent case of Zulfikar Ali Bhutto v. The State that before an error can he 'a ground for review it is necessary that it must be one which is apparent on the face of the record, that is it must be so manifest so clear that no Court could permit such an error to remain on the record: It may be an error of fact or of law, but it must be an error which is self evident and floating on the surface and does not require any elaborate discussion or process of ratiocination'. There is no such error of fact or of law in the impugned judgment as may be said to be self-evident, floating on the surface, which the Court should not allow to stand in the record and thereby attract the power of review enjoyed by this Court." (The underlining is by us).

17. ' In Mufti Abdul Ghani v. Province of the Punjab and another (PLD 1986 SC 327), the petitioner sought review of the order of this Court on the ground that after the passing of the orders by this Court there has been improvement in the status of the petitioner. This Court did not accept it as a valid ground for review. In Rehmat Khan v. Mst. Sardar Bibj and others (1983 SCMR 7), Syed Akbar All Bukhari v. State Bank of Pakistan (1981 SCM R 518), Ghulam Hussain v. Qadar Khan (1980 SCM R 136), Jalal and 13 others v. Nazir Ahmed and 8 others (1980 SCM R 320), Mst. Zainab Khatoon and another v. Mst. Ghulam Fatima (1980 SCM R 331), Ch. Hassan Din v. Claims Commissioner, Lahore (1968 SCM R 1047), Abdul Khaliq Qureshi .v. Chief Settlement and Rehabilitation Commissioner, Pakistan and another 1968 SCM R 800, Mala and 7 others v. Jehangir and 3 others (1982 SCM R 239), and M/s. Associated Cement Companies Ltd. v. The President of the Islamic Republic of Pakistan and others (1982 SCM R 1152), it was observed by this Court that a review petition would not lie on the grounds which were already advanced at the hearing of appeal or petition and were attended to by the Court. In Sanaullah and others v. Kamal Din (1981 SCM R 781), the petitioner applied for review of the order of this Court on the ground of error apparent on the face of order. It was contended by the petitioner that the petition for leave to appeal was dismissed as withdrawn on the basis of the statement of counsel which was made without consent of the petitioner and the petition raised important question of law. This Court repelled the above contention holding that the error if any lay in the statement of petitioner's counsel and not in the order of the Court muchless an error apparent in the order dismissing the petition for leave to appeal.

18. In Mst. Hashmat Bibi and others v. Gulzar Muhammad and others (1981 SCM R 316), review petition was not allowed to be pressed on the basis of material available and not produced earlier but produced for the first time in review.

19. In Abdul Majeed and another v. Chief Settlement Commissioner and others (1980 SCM R 504) and Muhammad Hanif v. Sawar Gul and others (1986 SCM R 1179), this Court held that contention not raised at the hearing of petition for leave to appeal or appeal cannot be allowed to be raised in review proceedings We will not refer to some of the cases in which review was allowed by this Court on the ground of error apparent on the face of record. In Basham Khan and others v. Syed Shafi Shah and others (1983 SCM R 183), the ground of non-hearing the petitioner related to the order of Land Commission Authorities passed in 1960 and not to the order passed in exercise of suo motu revisional jurisdiction in 1968. This Court while allowing the appeal in the above case, however, considered the ground of non-hearing of appellant in respect of order passed in suo motu jurisdiction in 1968.

20. Review was allowed in the case on the ground of error apparent on the face of the order.

21. In Mst. Kishwar v. Settlement Commissioner and 4 others (1987 SCM R 1396), this Court allowed the review petition on the ground that the Court while disposing of the appeal has assumed that the petitioner was successer-in-interest of the transferee while in fact it was not so. This error in the order was considered as an error apparent on the face of the order.

22. From the preceding discussion it follows that review proceedings cannot partake re-hearing of a decided case. Therefore, if the Court has taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order cannot be obtained on the grounds that the Court took an erroneous view or that another view on reconsideration is possible. Review also cannot be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced. A ground not urged or raised at the hearing of petition or appeal cannot be allowed to be raised in review proceedings. Only such errors in the judgment/order would justify review, which are self-evident, found floating on the surface, are discoverable without much deliberations, and have a material bearing on the final result of the case.

23. ' In the light of the above stated legal position we now proceed to examine the contentions of Mr. A.H. Pirzada in the above review petitions.

24. ' The first contention of Mr. Pirzada is that there is an error apparent on the face of the judgment of this Court dated 13-12-1996 inasmu ch as that this Court while distinguishing the judgment of Supreme Court of India in M/s. Mechalec Engineering v. Basic Equipment Corporation (supra) observed that the decision of the Indian Supreme Court proceeded on the basis of a different provision of law in the Indian Code of Civil Procedure, while in fact the said amendment in the Indian Civil Procedure Code was introduced after about 3 months of the judgment of Indian Supreme Court in M/s. Mechalec Engineering case. The following observation in the impugned judgment of this Court are referred by Mr.Pirzada to point out the error. In the judgment:-- "The sheet anchor of the arguments of Mr. A.H. Pirzada, the learned counsel for appellants in the above cases, is the decision of Indian Supreme Court in the case of M/s. Mechalec Engineers v. M/s. Basic Equipment Corporation (supra). However, as pointed out by this Court in the case of Ark Industrial Management Ltd. v. Habib Bank Limited (supra), the decision of Indian Supreme Court proceeded on a different provision of law and as such it is distinguishable. We will, therefore, proceed to determine these appeals in the light of the law laid down by this Court in this behalf."

25. The above-quoted observations only show that this Court while deciding the appeals did not take into consideration the decision of Indian Supreme Court in M/s. Mechalec Engineer's case (supra) for the reasons stated in the above paragraph and followed the law laid down by this Court in various cases in this behalf. The learned counsel for the petitioner concedes that above decision of Indian Supreme Court cited by him at the hearing of the appeals had only a persuasive force and had no binding effect. In these circumstances failure to consider the ratio of Mechalec Engineer's case by this Court in the impugned judgment did not amount to any error muchless an error apparent on the face of the judgment/order.

26. ' The second contention of Mr.Pirzada is that decision of this Court in Abdul Karim Jaffarani's case had modified the view expressed by this Court in the case of Fine Textile Mills Ltd. v. Haji Umer (PLD 1963 SC 163) and therefore, in view of the law laid down by this Court in Abdul Karim Jaffarani's case, the petitioners were entitled to grant of leave unconditionally. Firstly, it is not correct to argue that the view taken in Fine Textile Mills' case was departed from in Abdul Karim Jaffarani's case. Fine Textile Mills v. U.B.L. And Abdul Rauf Ghauri v. Mr. Kishwer (1995 SCM R 925) relied by the learned counsel' at the hearing of the appeal, without expressing any dissent. Apart from it in the impugned judgment reference was made by us to Karim v'. Zikar Abdullah (1973 SCM R 100), Abdul Majeed v.

27. U.B.L. (1984 SCMR. 1435), Ark Industrial Management Ltd. v. Habib Bank Ltd. (PLD 1991 SC 976) in support of our conclusion but in none of these judgments the view expressed in Fine Textile Mill's case was either dissented from or overruled. Even otherwise, the fact that in the impugned judgment Fine Textile Mill's case was followed in preference to Abdul Karim Jaffarani's case, the former having not been overruled by the latter, cannot be valid ground for seeking review of the judgment .##ES## The last contention of Mr. Pirzada is that the grant of leave to defend the suits on condition of furnishing bank guarantee almost amounted to refusal of leave and, therefore, the petitioner's case required reconsideration in review. The arguments that grant of leave on condition of furnishing bank guarantee was very harsh had virtually amounted to denial of leave to defend was raised by the learned counsel at the hearing of the appeal but it was not accepted and exercise of discretion by the trial Court was held to be proper. This ground therefore, cannot be allowed to be agitated again in review proceedings. Mr. Pirzada also referred to the provision of Act XV of 1997 to contend that the Legislature found the provision for grant of leave to defend in banking case on condition of furnishing security as unreasonable and therefore, under the new legislation leave to defend in such cases is to be granted now without imposing condition of security. This circumstance, according to the learned counsel also justified review of the order dated 13-2-1996. The learned counsel for the respondents rightly pointed out that the new law having been promulgated long after the announcement of impugned judgment, the change of law in these circumstances could not justify review of the judgment passed on the basis of the law prevailing on the date of the judgment.

28. ' No ground for review is made out. The petitions are accordingly, dismissed but there will be no order as to costs.