MUHAMMAD AZAM KHAN vs CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD
This matter concerns an application for review under Order 47, Rule 1 of the Code of Civil Procedure 1908, seeking the recall of a judgment passed by a Division Bench in an Intra-Court Appeal. The core legal question was whether the previous judgment, which dismissed the petitioner's constitutional petition on the grounds that it involved disputed questions of fact requiring a civil suit, was based on an incomplete assessment of the record. Specifically, the petitioner argued that the Court failed to consider a second inquiry report approved by the Board of the Capital Development Authority. The Court held that the failure to consider this second inquiry report, which, under Section 4 of the Capital Development Authority Ordinance 1960, constituted an official report of the Authority, amounted to an error apparent on the face of the record. Consequently, the Court allowed the review application, recalled the previous judgment, and ordered the restoration of the Intra-Court Appeal for rehearing. The principle established is that a review is maintainable where a court overlooks a material document that, if considered, would have altered the outcome of the proceedings.
- Can a review petition be heard by the remaining member of a Division Bench if the other member has retired?
- Does the failure to consider a material document that constitutes an official report of a statutory body justify a review of a judgment?
- Under what circumstances can a court recall a judgment based on the omission of a document from the record?
- Order 47 Rule 1, Code of Civil Procedure 1908
- Order 47 Rule 5, Code of Civil Procedure 1908
- Section 4, Capital Development Authority Ordinance 1960
' This is an application under Order 47, Rule 1 of Code of Civil Procedure for review of the judgment passed by a Division Bench of this Court comprising of myself and my learned brother Saeed-ur- Rehman Farrukh, J. (as he then was). This petition came up for hearing originally before a Division Bench which admitted it on 10-9-1997 and issued notice to the respondent. On 7-6-1999 it was noticed that as the judgment under challenge was passed by a Division Bench of which one of the Members has since retired. Under Order 47, Rule 5 of Code of Civil Procedure in such an eventuality the review petition can be heard by remaining Member of the previous Division Bench alone and not by any other Division Bench. Consequently, the matter was placed before the Honourable Chief Justice who directed that the review application be heard and disposed of by me.
2. I have heard Raja Muhammad Anwar, learned counsel for the petitioner and Mr. Ghulam Hassan Gulshan, Advocate on behalf of the respondent and perused the record with their assistance.
3. Learned counsel for the petitioner has contended that this Court disposed of the Constitutional petition on the ground that the questions of fact were involved in the case and that the petitioner should file a civil suit. It was, however, not noticed that the second inquiry report was duly approved by the Board of Capital Development Authority and it bears the signatures of its Acting Chairman.
Mr. Ghulam Hassan Gulshan has, however, stated that it was earlier report submitted to this Court which presented the true picture and the subsequent report was of no legal effect.
4. In our judgment, dated 23-6-1997 we observed that the question as to whether the record has been forged or not is essentially one of fact which cannot be determined without recording any evidence. I must admit that at that time it was not brought to our notice that second inquiry was conducted by the Additional Director Security who placed the matter before the Officiating Chairman who duly approved the report which was also signed by Member Administration. That being so, in terms of section 4 of the Capital Development Authority Ordinance that report was to be taken as the report of Capital Development Authority. As this aspect of the matter was not considered by us when we disposed of the Intra-Court Appeal I am inclined to grant this application for review and rehearing of the appeal on its merits.
' In view of the above, this application is allowed and judgment, dated 23-6-1997 is recalled with the result that the Intra-Court Appeal shall now be listed for hearing before a Bench comprising of two Judges.
' No order as to costs.