Defining the scope of Order XXVI, Rule 6 of the Supreme Court Rules, 1980, the top court has noted that its discretion to permit a new lawyer to argue the review petition was to be exercised judiciously for valid reasons by considering the circumstances of the case.
"The practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances by the parties as well as by the advocates representing them is condemnable,” read a four-page judgement authored by Justice Syed Mansoor Ali Shah in a case wherein a review petition was filed by a new counsel.
A division bench of the apex court noted that order XXVI of the Rules dealt with the practice and procedure of the SC in exercising its review jurisdiction.
"It lays special emphasis on the role and obligation of the advocate, who is to draw up the application for review and appear in support of it before the court,” the verdict stated.
"Under Rule 6, an application for review has to be drawn by the advocate who appeared at the hearing of the case in which the judgment or order, sought to be reviewed, was made,” it added.
The SC also noted that under Rule 4, the advocate, who drew up the application, had not only to specify the points upon which the prayer was based but also had to add their certificate to the effect that the review would be justifiable in accordance with the law and practice of the court.
"Rule 5 provides that in case the court comes to the conclusion that the review application filed was vexatious or frivolous, the advocate or the advocate on record drawing the application shall render himself liable to disciplinary action,” the judgment read.
“Rule 7 provides that no application for review shall be entertained unless [the] party seeking [the] review furnishes [a] cash security of Rs10,000, which shall stand forfeited if the review petition is dismissed or shall be paid to the opposite party, if the review petition is contested. Rule 6, thus, has to be seen and applied in the overall scheme of Order XXVI of the Rules,” it added.
The SC observed that Order XXVI of the Rules required that the same advocate, who earlier appeared to argue the case, should draw up the review application and appear in support of it before the court for certain reasons.
“It is because a review petition is not the equivalent of a petition for leave to appeal or an appeal where the case is argued for the first time,” the judgment added.
"It is not the rehearing of the same matter. The scope of review application is limited to the grounds mentioned in Order XXVI Rule 1 of the Rules. The advocate who had earlier argued the main case is perhaps the best person to evaluate whether the said grounds of review are attracted in the case. He being part of the hearing of the main case is fully aware of the proceedings that transpired in the court leading to the judgment or order sought to be reviewed,” it added.
The SC noted that the advocate, who knew what was argued before the court and what weighed with it in deciding the matter either way, should file the review application.
“It is also for the same reason that the review application is to be fixed before the same bench that delivered the judgment or order sought to be reviewed, under Rule 8 of Order XXVI of the Rules,” the verdict read.
The judgment read that it was not hard to see that the same advocate and bench could best appreciate the grounds of review.
“A review argued by a new advocate before a new bench would inevitably amount to rehearing of the main case and going beyond the scope of review under the law. It is true that the requirement of ‘sufficient ground' for granting the special leave is not expressly stated in Rule 6, but this does not mean that the discretion of the court to grant or decline the special leave is arbitrary or is mechanical on filing of an application in this regard by a petitioner,” the verdict added.
“Discretion, like all other discretions, is to be exercised judiciously for valid reasons by considering the circumstances of the case. The special leave to substitute a counsel in a review petition is to be granted, as held by a full bench of this court in Dr Mubashir Hassan case (NRO), only when [the] appearance of the earlier counsel is not possible due to some unavoidable circumstances,” the judgment read.
“The practice of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances by the parties as well as by the advocates representing them is condemnable,” the verdict concluded.
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