Mahbubur Rahman Sikder and ors (Petitioners)
Mujibur Rahman Sikder and ors (Respondents)
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Syed Md Mohsen Ali J
Judgment dated : April 18, 1983.
The Constitution of the People’s Republic of Bangladesh, 1972, Article 105
The Appellate Division of the Supreme Court of Bangladesh has the power to review its own judgement acting on its own.
The Code of Civil Procedure, 1908 (Act No. V of 1908), Order XLVII, rule 1 and rule 26 of the Supreme Court Rules are applicable in case of a review by the Appellate Division of the Supreme Court. Rule 26 prescribes 30 days for filing a review petition.
The power to review is derived from the Constitution, so this power cannot be restricted in any manner whatsoever except by what has been provided in the Constitution itself. Since the power to review has been conferred by the Constitution, it cannot be negatived if the Court wants to exercise this power on its own ………..(40)
The expressions “doing complete justice” as occurring in Article 4 of the Constitution are of great significance. Their importance cannot be whittled down. Nor can the Court give up even a fraction of this power. It is a great power with which the Court has been armed………..(41)
Cases Referred to:
East Pakistan Vs Medhi Ali Khan (1959)11 DLR (SC) 318; Md. Amir Khan Vs. Controller of Estate Duty (1961) 13 DLR (SC) 105; Northern India Caterers Vs. Lt. Governor, Delhi AIR 1980 (SC) 674; De Lasala Vs. De Lasala (1979) 2 All England Reports 1146 (1115).
Syed Ishtiaq Ahmed and Rafiqul Hoque, Senior Advocates, Mahmudul Islam, Advocate with them) instructed by Md. Sajjadul Huq, Advocate-on-Record—For the petitioners (In Civil Appeal Nos. 63-65 of 1982).
Hamidul Huq Chowdhury and M.H.Khondker, Senior Advocates F.A. Mannan and A.Y. Masihuzzamann Advocate, with them instructed by Md. Aftab Hossain, Advocate-on-Record. — For the respondents (Civil Appeal Nos. 63 & 64 of 1982).
K. A. Bakr Attorney-General, A.W.Bhuiyan, Additional Attorney-General, B. Hossain, Assistant Attorney-General, instructed by Md. Aftab Hossain, Advocate-on-Record—For the respondent (In Civil Appeal No. 65 of 1983).
Civil Miscellaneous Petition No. 12 of 1983.
(Arising out of the Judgment of the Appellate Division dated July 13, 1982 passed in Civil Appeal Nos. 03-65 of 1982.)
Fazle Munim CJ. — In Criminal Miscellaneous petition No. 8 of 1982 the following order was passed by this Court on February 6, 1983.
”Let a notice be issued upon the parties to show cause within two weeks as to why our judgment (dated 13.7.82) should not be reviewed.”
2. This notice was issued not on the prayer of any of the parties in the aforesaid criminal miscellaneous petition, but was made suo motu by this Court having heard grievances of both the parties regarding certain clauses inserted by this Court in the ordering portion of its judgment in Civil Appeal Nos. 63-65 of 1982delivered on July 13, 1982. The grievances centered mainly on conditions (4) and (5). For the sake of clarity and under standing all the five conditions will in due course be quoted in this judgment. Submissions of both the parties show their respective claims regarding the extent of adherence or non-adherence to these conditions.
3. Without elaborately describing the background in which the aforesaid notice to show cause was issued, a brief reference may be made to indicate the necessity and importance of issuing such a notice. As the facts constituting the background of the show-cause notice are offered by the judgments of this Court in Civil Appeal Nos. 63, 64 and 65 of 1982 and Criminal Miscellaneous Revision No. 8 of 1982, they may be looked into for this purpose.
4. The three appeals arose but of the dispute of the firm named and styled ”M/R. Sikder” formed under a deed of partnership registered on September 1,1968 for the purpose of carrying on contract business of Government and Semi Government organizations. The partnership is a family concern and the dispute is mainly between two brothers, Mujibur Rahman Sikder, the elder brother and Mahbubur Rahman Sikder, the younger brother. Mujibur Rahman Sikder is the managing partner having over-all charge of the management of the firm and its business and the other partners including Mahbubur Rahman Sikder are to assist him in the smooth running of the firm’s business. As soon as the firm succeeded in entering into a contract with the Bangladesh Water Development Board for construction of a big irrigation work, namely, the Feni Regulator, under the Muhuri Irrigation Project requiring the expenditure of nearly. Taka 15 crores, misunderstanding cropped up between the managing partner on the one hand and the remaining partners, Jon the other hand who, as it appears, were led, by the younger brother, Mahbubur Rahman Sikder in sum and substance the dispute showed the conflicting claims, regarding the management of the business and affairs of the firm. Mujibur Rahman Sikder, Managing partner of the firm, claimed that he has been running the business quite efficiently and well, Mahbubur Rahman Sikder supported by the other partners charged the former with breach of trust and misappropriation of the firm’s assets and fund their deprivation regarding both the profit as well as management of the firm. Both sides gave a lot of details in support of their respective claims.
5. For resolving the dispute Mahbubur Rahman Sikder, the younger brother filed Title Suit No.371 of 1980 in the 3rd court of Subordinate Judge, Dhaka for a declaration that the firm already stood dissolved, alternatively for dissolving the firm, for accounts and for the appointment of a Receiver, while Mujibur Rahman Sikder filed Title Suit No.16 of 1981 for temporary injunction restraining Mahbubur Rahman Sikder and the other partners of the firm from proceeding with Title Suit No. 371 of 1980. The suits were heard together and by his order dated June 13, 1981 the trial court allowed the plaintiffs prayer for appointment of a receiver and rejected the prayer of defendant No. t for temporary injunction made in Title Suit No. 16 of 1981. Subsequently, the trial court by its order dated August 15, 1981 appointed one Mujibur Rahman Khan. Project Engineer of the firm, who was in charge of the contract work as Receiver in respect of the assets and properties of the firm and for carrying on the incomplete work with the employees of the firm according to law. Against this order appeals were filed before the High Court Division by the aggrieved parties. P.M.A. Nos. 475 and 494 of 1981 arose out of Title Suit No. 371 of 1980 and P.M. A. No. 465 of 1981 arose out of Title Suit No.16 of 1981. All the appeals which were heard analogously were dismissed by the Bench of the High Court Division which confirmed the appointment of Receiver by the trial court. Being aggrieved by this order of the High Court Division, two appeals, namely, Civil Appeal No. 63 of 1982 and Civil Appeal No.65 of 1982 arose out of the first two miscellaneous appeals just mentioned above and Civil Appeal No.64 of 1982 was filed by the Bangladesh Water Development Board.
6. The point involved in Civil Appeal Nos. 63 and 65 of 1982 was whether the High Court Division was right in maintaining the trial court’s order of appointment of the Receiver.
7. After hearing the disputants, namely, Mujibur Rahman Sikder, the appellant and Mahbubur Rahman Sikder, the respondent this Court allowed Civil Appeal Nos. 63 and 65 without any order as to costs. While allowing appeals the Court inserted the following terms in the judgment-
“1. Order of appointment of Receiver by the trial court as affirmed by the High Court Division is set aside.
2. All receipts from Bangladesh Water Development Board and/or its agencies will be credited in the Bank Accounts, namely Account No.1651, Sonali Bank, Pent Branch, Noakhali and Account No. 222, Rupali Bank, Rathkola Branch, Dhaka, of the partnership firm. All such receipts shall be intimated to plaintiff No.1 with liberty to him to check the accounts.
3. The Accounts of the firm will be audited by a Chartered Accountants Firm to be agreed upon by both the parties and the audit report of the audited accounts relating to the project will be published every six months.
4. Defendant No.1 will remain in overall charge of the Feni Regulator project and shall manage-and complete the unfinished work
5. All disbursements and withdrawals shall be made under the joint signatures of defendant No.1 and plaintiff No.1 on the basis of certificated bills. Provided that plaintiff No. 1 shall not withhold his signature in the case of disbursements/withdrawals on certificated bills. In case of refusal of plaintiff No.1 to subscribe his signature on the cheques in respect of such disbursements/ withdrawals, defendant No.1 will have the power to withdraw the amounts under certificated bills under his signature.”
The Court further ordered as follows:
“Civil Appeal No. 64 of 1982 is dismissed without any order as to costs.
The Subordinate Judge, 3rd Court, Dacca is directed to dispose of Title Suit No. 371 of 1980 and Title Suit No. 16 of 1981 expeditiously.”
8. It, however, appears that things did not move in the way indicated by this Court in its aforesaid judgment inserting specific terms for the parties concerned. This became clear when Mahbubur Rahman Sikder filed Criminal Miscellaneous Petition No. 8 of 1982 for committal of Mujibur Rahman Sikder for contempt of Court for the violation of the terms imposed by this Court in the aforesaid judgment. Though this Criminal Miscellaneous petition was filed some time after July 13, 1982, the date of judgment of the aforesaid appeals, it could not be heard immediately due to several adjournments on the ground of the absence of the respondents’ Counsel from the country. On February 3, 1983 after hearing the parties in the Criminal Miscellaneous petition the Court, by a majority judgment, allowed the petition and found Mujibur Rahman Sikder guilty of contempt of Court and sentenced him to pay a fine of Tk.1,000/-, in default, to simple imprisonment for three months. The Court further ordered as follows;
”In view of our Order in this petition, it appears that the judgment dated 13-7-82 passed in C.A. Nos. 63-65 of 1982 needs to be reviewed. Let a notice be issued upon the parties to show cause within two weeks as to why our judgment should not be reviewed.”
9. All the parties including Bangladesh Water and Power Development Board appeared in response to the notice and made submissions, both oral and written, before the Court either in support of or in opposition to the proposed order reviewing the aforesaid judgment in Civil Appeal Nos. 63-65 of 1982. These submissions can, however, be grouped under two heads, namely, (1) whether the Appellate Division of the Supreme Court has the power to review is judgment on its own, that is without any party to the judgment concerned having applied for such review; (2) if it has power, whether on merits the judgment in Civil Appeal Nos. 63-65 of 1982 should be reviewed.
10. As regards the first question about the power to review its judgment suo motu Mr. K. A. Bakr, Counsel for the Water and Power Development Board, submitted that the Appellate Division can invoke the power to review its judgment suo motu. This power is derived from the provisions of the Constitution. In support of these provisions, he referred to the provisions in the Constitution, now suspended, namely, Articles 104 and 105 and also a few decisions including that of the Supreme Court of Pakistan, which we shall presently consider. Let this be mentioned that at our request he advanced his submissions as the Attorney-General since this is a Constitutional question of great public importance.
11. On merits, however, the emphatically denied any need to review the judgment concerned. Here of course, he assumed the role of his party’s Counsel. His reasons are, briefly, that all the questions involved in the “aforesaid-appeals were fully examined, discussed and considered in the judgment concerned, and in doing so no materials have been over-looked by the court leading to any mistake or error apparent on the face of the record’s as to justify the review of the judgment. His further submission is that there is no mistake of law in the judgment which can be offered as ground for review. It requires mentioning that the Bangladesh Water and Power Development Board on whose behalf Mr. K.A. Bakr made this submission extended all-out support in its affidavit for Mujibur Rahman Sikder. He was not only highly complimented for the work done by him so far in connection with the Feni Regulator Project but also paid glowing tributes to his ability, and referred to the trust and confidence reposed in him by the Board and the connected outside agencies providing finance for the project. At the end of its, affidavit the Board submitted that it would be “just and equitable that the unfinished works of Feni Regulator undertaken on behalf of the partnership firm should be allowed to be completed by the contractor firm as per the partnership agreement, in other words, under the over-all control of Mr. MR. Sikder, the managing partner of the firm, without any hindrance from the other partners”.
12. On the first branch of the submissions, that is, regarding the power of this Court to review its judgment suo motu, Syed Ishtiaq Ahmed, Counsel for Mahbubur Rahman Sikder extended full support. He also referred to various decisions of the Pakistan Supreme Court in addition to what was already cited before us by Mr. Bakr. Mr. Ahmed was, however, not one with him so far as the merits of the case in concerned that is, regarding the need, to review the judgment in question. He expressed the view, that in the circumstances of the case which is illustrated and highlighted by the judgment of this Court in the contempt case showing the extent of violations of the directions of this Court in the judgment’ concerned, it should be reviewed or else the violations of the Court’s order will continue leading to frustration of the purposes for which the directions were made.
13. Mr. Hamidul Huq Chowdhury, Counsel for Mujibur Rahman Sikder, was vehemently opposed to the exercise of any power to review its judgment in any manner other than what is provided in Order 47, rule 1 of the Code of Civil Procedures or Order 26 of the Rules of the Supreme Court, 1969 and as amended up to date. While referring to the provisions of the Constitution conferring power upon the Appellate Division to review its judgment, he submitted that, this power was, for its exercise, dependent on the existence of some law to be enacted by Parliament. Without such law or disregarding it, if it exists, the power to review cannot be exercised. In this opinion, therefore, this Court, can review its judgment if moved by any of the aggrieved parties within the period of limitation and in compliance with the procedure laid down in law. So far as the second branch of the argument is concerned, as to whether the judgment in question should be reviewed if it is found that the Court has power to review its judgment suo motu, the learned Counsel submitted that since the judgment of this Court is final, there being no express provisions for its suo motu review by the Court and there being also no such precedent or instance of such suo motu review by any of the highest Courts in the countries of this subcontinent or in England, it would not be right or proper to claim or exercise such power. Curiously enough, simultaneously, that is, while opposing the exercise of any power to review its judgment, the learned Counsel submitted before this Court that it should consider an application seeking clarification of the judgment in question. Permission was given him to file the application for clarification of judgment concerned. It is not, however, understood how the clarification can be made without exercising the power to review. If anything whatsoever in that judgment is to be clarified by this Court, it can only be done by way of review. In this connection Syed Ishtiaq Ahmed, Counsel for Mahbubur Rahman Sikder made oral submissions that the terms inserted by this Court require some changes so that their continued existence may not lead to further petition of contempt by the other side leading to harassment and frustration of his client.
14. Having stated the general Submissions of the Counsel of each party to the case. I now propose to deal with the important question of great Constitutional importance which has arisen from issuing the suo motu notice to review our judgment in Civil Appeal Nos. 63-65 of 1982.
15. Syed Ishtiaq Ahmed, Counsel for the plaintiff, submitted quite forcefully that this Court has the power to review its judgment suo motu, that is without any application being filed by any of the parties to the judgment according to the existing provisions of law in Order 47, rule 1 of the Code of Civil Procedure or in the Rules of the Supreme Court 1969 as amended up to date. He submitted that the provisions of Order 47, rule, 1 C.P.C. do not come within the expression “subject to law enacted by parliament”, as occurs in Article 105 of the Constitution of Bangladesh, 1972 (now suspended). In this connection he referred to the position in the United Kingdom where for historical reasons, Courts were seen reluctant to review their judgments. The Constitutional experience derived from the practice of the English Courts was extended to the Indian Sub-continent. Before 1947, in the Constitution Act, namely, Government of India Act, 1935, no power to review has been conferred upon- the High Courts or even the Federal Court of India.
16. Subsequently, however, power to review was granted to the Supreme Court by the respective Constitutions of India and Pakistan. In the Indian Constitution there are provisions for review of Supreme Court judgments. In the Constitution of Pakistan of 1956 similar provisions for review were inserted. Same provisions found place in the Constitution of Pakistan, 1962. After the emergence of Bangladesh, the Constitution of Bangladesh 1972 provided the following provisions regarding the power of review in Article 105 which runs as follows:
“The Appellate Division shall have power, subject to the provisions of any Act of Parliament and of any rules made by that Division, to review any judgment pronounced or order made by it.”
17. According to the learned Counsel, these provisions came in the wake of the new context. He submitted that these provisions under Article 105 should not therefore, be read in isolation but along with those in Article 104. Article 104 of the Constitution reads as follows:
”The Appellate Division shall have power to issue such directions, orders, decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it, including orders for the purpose of securing the attendance of any person or the discovery or production of any document.”
18. Read together, these two articles namely, Article 104 and Article 105 of the Constitution, leave no doubt as to the Supreme Court’s power to review its decision, acting on its own that is, without the intervention of any party to the judgment concerned. He emphatically asserted that the power of review granted by Article 105 of the Constitution cannot be circumscribed by the provisions of Order 47, rule 1.C.P.C. as these provisions do not come within the meaning, of subject to law etc…” as occurs in Article 105. Nor has Parliament made any law whatsoever regulating the exercise of power of review by this Court as mentioned in Article 105. In the absence of such law this Court’s power to review its judgment even suo motu is not restricted. So far as the Rules of the Supreme Court are concerned, they merely provide the manner of exercising the power of review granted by the Constitution. They cannot be said to negative the existence of the power itself. In order to find support for the views propounded by him, he cited a few cases which will be considered in due course.
19. As regards the finality of the judgment under consideration. Mr. Ahmed asserted that from the very nature of the directions given by this Court in its judgment in “Civil Appeal Nos. 62-65 of 1982, it cannot be said to be final According to him, not merely the directions contained in1 the five conditions imposed by this Court in that judgment could be varied or altered, he even went to the extent of suggesting that in view of the conduct of the defendant after the judgment was pronounced resulting in the contempt proceeding (Cr. M.P. No. 8 of 1982; this Court should make an order for appointing a receiver which was not allowed in the judgment under review.
20. His apprehension was that if this is not done and things are allowed to follow the course they have followed so far, it was apparent there would be nothing left after sometime for his clients to enjoy. This submission is not, however, new. We heard such submissions before the judgment in question was pronounced by us in July last. He did not agree with Mr. Bakr, Counsel for the WAPDA, that the work under the contract was proceeding well and would be completed within a short time.
21. Mr. Hamidul Huq Chowdhury, counsel for the defendant, agreed with neither Mr. Bakr, Counsel for neither WAPDA, nor Syed Ishtiaq Ahmed, Counsel for the plaintiff, insofar as they submitted in favour of the exercise of power of review by this Court suo motu. Mr. Chowdhury, however, agreed with Mr. Bakr when he denied the necessity of reviewing the judgment in question, but disagreed with Syed Ishtiaq Ahmed regarding the desirability as well as the necessity of reviewing the judgment in question.
22. Mr. Chowdhury submitted that since the judgment of this Court becomes final, it cannot be disturbed by the Court claiming the power to review it suo motu. This is not merely an extreme assertion, but finality being the end of all litigations and such finality having once attached to the judgment of the highest Court of the land, it has not been ever disturbed by this Court acting suo motu by way of reviewing the judgment. Nor has any superior Court in the United Kingdom or the Supreme Courts of India or Pakistan done so by proceeding suo motu to review its judgment. In short, there is no precedent from these countries on this point. To review a judgment at the instance of an aggrieved party is allowed by law and such review only is permissible, as will be seen in the judgments of these Courts.
23. In Bangladesh, no exception occurs. In 1972 the Supreme Court has been established. Its powers are derived from the Constitution of Bangladesh 1972. The power to review has been conferred by Article 105 of the Constitution and it can be exercised only in accordance with the provisions of that Article. Its terms show that the power to review is exercisable according to the provisions of Order 47, rule 1, C.P.C. and Order 26 of the Supreme Court Rules. He dwelt at length on these Rules for the purpose of showing the details regulating the Court’s power to review. Though the provisions of Order 47, rule 1, C.P.C. do not provide any time limit within which an application for review is to be made, such limitation has been provided by the Limitation Act. Rule 26 of the Supreme Court Rules, however, provides thirty days for riling a petition for review. Review, according to him, is only available on application of aggrieved parties within the time fixed by law.
24. From the cases cited, Mr. Chowdhury submitted that there is not a single case so far which shows the Court’s power to review its judgment suo motu. He also threw a challenge denying a single precedent in support of such extra-ordinary power. He denied the very power of the Court to review its judgment suo motu because there is no express conferment of such power anywhere, either in the Constitution itself, or any statute. Incidentally, the learned Counsel mentioned that there is a kind of review which enables the Supreme Court to overrule its earlier decision on a point of law while hearing another case involving the same point. What principles are followed in so reviewing its earlier decision is not, however, the subject-matter of our consideration.
25. In anticipating, and consequently to get over, the difficulty in altogether denying such power if Article 104 and Article 105 of the Constitution are read together, Mr. Chowdhury submitted that these two articles are to be read in isolation from each other, not together. Before concluding he referred to a few judgments which will be considered later in this judgment.
26. Of the three learned Counsels who expressed their views on the question quite clearly and with force, the existence of the power to review its judgment or order suo motu has been stressed by the Attorney-General and Syed Ishtiaq Ahmed. The contrary views denying its existence has been advanced by Mr. Hamidul Huq Chowdhury In support of the affirmative proposition, the former two Counsels relied on the provisions of Article 104 of the Constitution, pronouncements of Supreme Court of India and Pakistan and also modern trends under English Law. Mr. Chowdhury, however, made the negative assertion basing largely on lack of precedents ID this respect. Bearing their respective submissions in mind. I now propose to examine the position of this Court as appears under the Constitution and law.
27. Before dealing with the question, the provisions of law relating to the exercise of power of review may be referred to Mention may, however, be made that none of these provisions of law were made under sub-section (2) of Article 105 of the Constitution of Bangladesh, 1972 which has conferred the power, of review on the Appellate Division of the Supreme Court. This mentioning in necessary, because while making submissions on the scope of Article 105, it has been claimed that the expressions “subject to the provisions of any Act of Parliament” and “of any rules made by that division” refer to Order 47, Rules 1-9, Cr.P.C. and Order 26 of the Supreme Court (Appellate Division) Rules. Facts as they existed on the day the Constitution of Bangladesh was made do not, however, seem to justify such conclusions. Provisions of Order 47 rule 1, C.P.C. were available from several decades ago, that is, long before the Constitution of Bangladesh, 1972.
These provisions are as follows:
“1. (i) Any person considering himself aggrieved—
(a) by a decree or 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
(c) by a decision’ on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to, the Appellate Court- the case on which he applies for the review.
28. The manner of exercise of the power to review is regulated by rules 2 to 9 of the same Order. These rules in Order 47 of the First Schedule to the Code of Civil Procedure have been made in pursuance of the provisions of section 114 of the same Code.
29. Apart from these provisions of law relating to the power of review which are available to any Court governed by the Code of Civil Procedure, Order XXVI of the Supreme Court (Appellate Division) Rules, 1973, provides for review by this Court. These provisions are adopted from the Pakistan Supreme Court Rules, 1956, as amended up to August, 1969. Orders XXVI of the Rules are as follows:
“1. Subject to the law and the practice of the Court, the Court may review its judgment or order in a civil proceeding on grounds similar to those mentioned in Order XLV1I, rule 1 of the Code, and in a criminal proceeding on the ground of an error apparent on the fact of the record.
2. Applications for review shall be filed in the registry within thirty days after pronouncement of the judgment, or, as the case may be, the making of the order, which is sought to be reviewed. The applicant shall, after filing the application for review, forth-with give notice there of to the other party and endorse a copy of such notice to Registry.
2A. Every application for review shall be accompanied by a certified copy of the judgment or order complained of, and when the application proceeds on the ground of a discovery of such evidence, certified copies of the documents, if any, relied upon, shall be annexed to the application, together with an affidavit setting forth the circumstances under which such discovery has been made.
3. No such application shall be entertained unless it is signed by a Senior Advocate who, in this behalf, shall not be governed by the restrictions contained in clause (2) of the First Schedule to these rules.
4. The Senior Advocate signing the application shall specify in brief the points upon which the prayer for review is based, and shall add a certificate to the effect, that consistently with the law and practice of the Court, review would be justifiable in the case. The certificate shall be in the form of a reasoned opinion.
5. Except with the special leave of the Court, no application for review shall be drawn by any advocate other than the Advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made. Such Advocate shall, unless his presence has been dispensed with by the Court, be present at the bearing of the application for review.
6. As far as practicable the application for review shall be posted before the same Bench that delivered the judgment or order sought to be reviewed.
7. After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.”
30. From the consideration of the provisions for review, whether in Article 105 of the Constitution or in Order 47, rule 1, C.P.C. or Order XXVI of the Supreme Court (Appellate Division Rules, 1973, it would appear that no express words have been used therein to enable this Court to exercise suo moto the power of judicial review. Even so, to find out whether there is any indication of the existence of such power in the provisions referred to above will be our present concern. Up till, now this has not been considered by us. By way of seeking assistance and guidance we may proceed to consider the pronouncements of some of the Superior Courts of the sub-continent and of England.
31. In Province of East Pakistan vs. Mehdi Ali Khan (1959) 11 DLR (SC) 318=PLD 1959 (SC) 423 Cornelius J as he then was, dealt with the Pakistan Supreme Court’s power to review. In making a brief reference to the source of the Supreme Court’s reviewing power, Cornelius J ruled out adherence to technicality of complying with the regular filing of an application for review. He observed:
“The power of review has been expressly given to the Supreme Court, which replaced the Federal Court under the Constitution of 1956 by Article 161. I do not conceive that the exercise of this power is necessarily limited in respect of form, so that the proceeding before the Court must be expressly ID the form of an application for review of an earlier judgment from order to attract the exercise or the power.”
32. Later, in Mohd. Amir Khan vs. Controller of Estate Duty (1961)13 DLR (SC) 105=(1962) PLD (SC) 335 by Cornelius, CJ had occasion to consider the extent of the Supreme Court’s power to review as conferred. Upon it by the Constitution, while quoting Article 161 of the Constitution of Pakistan, 1956 which corresponds to Article 105 of the Constitution of Bangladesh, 1972, Cornelius, CJ observed:
“No act of Parliament has yet been passed on the subject, nor has the Supreme Court itself made any rules to define or limit its powers of review. The arguments advanced on the two side at hearing have been addressed largely to the exposition of matters which might induce the Court to re-examine the judgment already pronounced ID the appeals, and learned Counsel have, appropriately refrained from treating of the matter in an academic mode.”
33. What should be the principles for regulating the Court’s power to review? Nothing is stated in the Article itself. In answering this question the learned Chief Justice went on to say as follows:
“For my own part, I do not regard the absence of any guiding principles, which should’ necessarily be of a restrictive character, as a matter for regret. To consider that in sub-section (3) of Article 163, the late Constitution has provided a sufficient indication, notwithstanding that it is couched in wide terms, of the full extent of the power of review contemplated by the late Constitution.”
This sub-section reads as follows:
“The Supreme Court shall have power to issue such directions, order decrees or writs as may be necessary for doing Complete justice in any cause or matter pending before it …”
34. This Article corresponds to Article 104 of the Constitution of Bangladesh, 1972. In proceeding to analyse this article to find out the guiding principles for the exercise of reviewing power, the learned Chief Justice does not stop short of establishing the connection between Article 161 and Article 163 (3) corresponding to Articles 104 and 105 of the Constitution of Bangladesh. Further, the interpretation of these provisions is a clear and emphatic assertion of the Supreme Court’s power to review in whatsoever manner it thinks fit, provided there is sure justification for exercising the power. Chief Justice Cornelius further observed:
”For the present purpose, the emphasis should, in my opinion, be laid upon the consideration that, for the doing of “complete justice”, the Supreme Court is vested with full power, and 1 can see no reason why the exercise of that full power should be applicable only in respect of a matter coming up before the Supreme Court in the form of a decision by a High Court or some subordinate Court. I can see no reason why that purpose of reviewing a judgment delivered by the Supreme Court itself:
Provided that there be found a necessity within the meaning of the expression “complete justice” to exercise that power. It must, of course, be borne in mind that by assumption, every judgment pronounced by the Court is concerned and solemn decision en all points arising out of the case and further that every reason compels towards the grant or finality in favour of such judgments delivered by a Court which sits at the apex of the judicial system. Again, the expression of complete justice” is clearly not to be understood in any abstract or academic sense. So much is clear from the provision in Article 163(3) that a written order is to be necessary for the purpose of carrying out the intention to dispense “complete justice”.
35. The need to do “complete justice” must be felt only when some meaningful change is required. Mere irregularity, though material, may not necessitate the exercise of the power to review. For its exercise some injury must result from such irregularity, thus it was observed:
“There must be a substantial or material effect to be produced upon the result of the case it, in the interests of “complete justice”, the Supreme Court undertake to exercise its extra-ordinary power to review or one of its own considered judgments, if there be found material irregularity and yet there be no substantial injury consequent thereon, the exercise of thee power of review to alter the judgment would not necessarily be required. The irregularity must be of such a nature as converts the process from being one in aid of justice to a process that brings about injustice. Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the Constitution or with a law of Pakistan, there it would be the duty, of the Court unhesitatingly to amend “the error.”
36. The duty to exercise the power of review is, according to the learned Chief Justice, a Constitutional duty imposed upon a Judge of a Supreme Court by the oath of his office:
“It is a duty which is enjoined upon every Judges of the Court by the solemn oath which he takes when he enters upon his duties, viz., to “preserve, protect and defend the Constitution and laws of Pakistan”. But the violation of a written law must be clear. An instance of review based upon such violation will be found in the Privy Council case North-West Frontier Province vs. Suraj Narain Anand PLD 1949 P.C.1. The ascertainment of a breach by a mode of interpretation will not in all cases furnish good ground for interference. For the interpretation of the Constitution and the laws is a function which is entrusted especially to the Superior Courts of the country, and while it is true that in doing so they will follow the generally recognised principles applicable to statutory interpretation, in elaboration of the rules contained in the interpretation statutes, namely, the General Clauses Acts, that is a field in which a degree of latitude is of necessity to be allowed to them.”
37. I would not hesitate to agree with, while referring to the submissions of Mr. Hamidul Huq Chowdhury, the assertions that a judgment pronounced by this Court is normally final, and should not be readily disturbed or interfered with by resorting to the exercise of the power of review except in the manner provided by law. This Court should exercise this power only in exceptional cases. In support of the finality of judgment of the Superior Court, the learned Counsel referred to the case of Northern India Caterers vs. Lt. Governor, Delhi, AIR 1980 SC 674. Here, in considering the scope and extent of the Court’s power to review its judgment the Indian Supreme Court observed as follows:
“A party is not entitled to seek a review of a judgment delivered by the Supreme Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so.”
38. Mr. Chowdhury also pointed out that in England where no constitutional provisions provide for the exercise of the power of review the Judicial Committee of the House of Lords, while indicating departure from the previous practice of adhering to precedent and finality of judgment pronounced by itself mentioned the need for restraint when exercising the right to depart from its previous decision. In this connection the learned Counsel referred to the following statement delivered by Lord Gardiner LC on behalf of the House of Lords which is reported in the note portion in (1966) 3 All England Reports p.77:
“Their Lordships regard the use of precedent (1) as an indispensable foundation upon which to decide what is the law and its application to individual cases, it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that fop rigid adherence to precedent may lead to in justice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous “decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.
This announcement is not intended to affect the use of precedent elsewhere than in this House.”
39. In the case of Delasala vs. Delasala (1979) 2, All England Repots p. 1746 at 1155 the Judicial Committee of the House of Lords laid down the test for determining when a judgment pronounced by it becomes final:
“The test whether a judgment or order finally disposes of the issues raised between the parties is not determined by enquiring whether for the purposes of rules of court relating to time or leave to appeal, it attracts the label ‘final’ or ‘interlocutory’. The test is: has the court that made the order a continuing power to vary its terms, as distinct from making orders in aid of enforcing those terms under a liberty to apply.”
40. From the foregoing submissions made by the learned Counsels and the cases cited by them, it is clear that there is no controversy regarding this Court’s power to review its judgment. The power has been conferred by the Constitution which has also provided bow the exercise of this power will be regulated. Article 105 provides that Parliament may enact law as to how the power will be exercised or this Court may make rule for its exercise. So far, no Act for Parliament has been passed as mentioned; in the article. The Court has not framed any rules, but has adopted the rules which were made under similar provisions of review in the Constitution of Pakistan, 1962. Review matters at present are governed and regulated by the rules of the Supreme Court, already quoted above. In practice, the Court also regards the provisions of Order 47, rule 1, C.P.C. for the purpose of reviewing its judgment, though these provisions are not binding upon it. As a matter of practice and rule this Court proceeds to review a judgment pronounced earlier by it upon an application for review by an aggrieved party. Prior to hearing a review petition the Court has to be satisfied that grounds for review as mentioned in Order XXVI of the Rules of the Supreme Court exist. There is no controversy regarding the power, practice and procedure for review in this respect. The question is whether this Court can proceed suo motu to exercise this power. The power to review is derived from the Constitution, so this power cannot be restricted in any manner whatsoever excepting by what has been provided in the Constitution itself. There is mention of an Act of Parliament and rules of the Court itself. Neither of them has anything to do with the conferment of power or prescribing any limitation or restriction upon it. They can only regulate the manner of exercising the power to review. Neither Parliament nor the Court has until now made any provisions against exercising, the power suo motu. Since the power to review has been conferred by the Constitution, they cannot, I think, negative this power if the Court wants to exercise it on its own.
41. This view finds support from the, provisions of Article 104. This article has empowered the Court to do “complete justice” in any cause or matter pending before it. Since the judgment under consideration laid down certain conditions to be fulfilled by the parties, the appeal in which the judgment was pronounced may be considered to be pending. Applying the test laid down in (1979) 2 All England Reports referred to above the conditions laid down in the judgment may, in the case of non-fulfillment, require to be varied. The expressions “doing complete justice” as occur in Article 104 are of great significance. Their importance cannot be whittled down. Nor can the Court give up even a fraction of this power. It is a great power with which the Court has been armed.
42. For the reasons set forth above it must be held that this Court has the power to review its judgment acting suo motu. It, therefore, follows the suo motu notice issued by this Court on February, 1983 as to why the judgment in Civil Appeal Nos. 63-65 of 1982 delivered on July 13, 1982 should not be reviewed must be disposed of in the following terms:
(1) The Appellate Division of the Supreme Court has power to review its judgment suo motu;
(2) Directions of this Court in condition No. (3) of 1982 will stand modified to the extent mentioned below:
Plaintiff No. 1 and defendant No.1 in the aforesaid appeals must submit within three days from to-day an agreed name of Chartered Accountants Firm to this Court and on their failure to do so this Court will appoint a Chartered Accountants Firm to do the work” as mentioned in the condition.
(3) Condition (5) will be substituted by a new condition as under;
(5) Either the certificated bill or a Photostat copy of the certificated bill attested by defendant No.1 to be submitted to plaintiff No.1 (to be retained by him) by an officer of the firm whereupon plaintiff No.1 will attend the office of the firm to sign the cheque for the amount mentioned in the certificated bill within twenty-four hours of such submission.
In case plaintiff No.1 refuses to receive the certificated bill photo copy or avoids its receipt defendant No.1 shall send it to him by registered post with A/D requesting the plaintiff to sign the cheque in the office within four days from the date of posting of the bill.
In case of refusal of plaintiff No.1 to subscribe his signature on such cheque, defendant No. 1 will have the power to withdraw the amount under his signature.
Explanation: A certificated Bill means a statement of expenditure, in detail, item by item, already incurred or proposed to be incurred, prepared by the Disbursing Officer at Dhaka Office or the Project Manager at Site certifying that the statement is genuine and correct and countersigned by the Managing Partner.
Subject to the above variations in the judgment of this Court passed in the aforesaid appeals on July 13, 1982 the judgment will remain operative.
Source : 37 DLR (AD) (1985) 145