The Supreme Court criticises the changing of lawyers for review without a valid reason.
The court has stated that the exception can only be made in cases where there are no other options.
ISLAMABAD: In defining the scope of Order XXVI, Rule 6 of the Supreme Court Rules, 1980, the apex 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. This was to be done in order to comply with the requirements of Order XXVI, Rule 6 of the Supreme Court Rules, 1980.
In a case where a review petition was filed by a new counsel, Justice Syed Mansoor Ali Shah issued a four-page judgement in which he condemned “the practise 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.” The judgement was written in response to a review petition that was submitted by a new counsel.
A three-judge panel of the highest court in the land pointed out that rule XXVI of the Rules addressed the practise and method that the Supreme Court must follow in order to exercise its review authority.
According to the ruling, “it lays specific emphasis on the role and obligation of the advocate,” who is responsible for drafting the application for review and appearing in support of it before the court. “It lays special emphasis on the function and obligation of the advocate,”
“An application for review has to be drawn by the counsel who appeared at the hearing of the matter in which the judgement or order, sought to be reviewed, was made,” it stated further. “This is required under Rule 6,” the document explained.
The Supreme Court also mentioned that in accordance with Rule 4, the advocate who drafted the application had to not only detail the grounds upon which the prayer was founded, but they also had to include a certificate stating that the review would be justifiable in accordance with the law and the practise of the court. The certification was required in order for the application to be considered valid.
According to the verdict, “Rule 5 specifies that in the event that the court comes to the opinion that the review application filed was frivolous or vexatious, the advocate or the attorney on record drawing the motion shall render himself vulnerable to disciplinary action.”
“Rule 7 stipulates that no application for review shall be entertained unless the party seeking the review furnishes [a] cash security of Rs10,000. This cash security shall be forfeited in the event that the review petition is dismissed, or it shall be paid to the opposing party in the event that the review petition is contested. Rule 6 must consequently be interpreted and used in light of the larger context of Order XXVI of the Rules,” the explanation went on to say.
The Supreme Court made the observation that according to Order XXVI of the Rules, it was required that the same advocate who had previously appeared in court to argue the case should draught the review application and appear in support of it before the court. There were a few different reasons for this requirement.
The reason for this is stated in the judgement, which states that “it is because a review petition is not the equivalent of a petition for permission to appeal or an appeal where the case is discussed for the first time.”
“This is not a hearing on the identical topic that has already been heard. The justifications outlined in Order XXVI Rule 1 of the Rules are the only ones that can be considered in a review application’s scope. The lawyer or attorney who was previously responsible for arguing the primary case is probably the most qualified individual to determine whether or not the aforementioned grounds of review are applicable to the situation at hand. Due to the fact that he participated in the hearing of the primary case, he is fully aware of the events that took place in court that led to the judgement or order that is being sought to be reviewed,” the document noted.
The Supreme Court stated that the review application should be submitted by the advocate because they were the only ones who knew what was argued in front of the court and what factors the court considered when making its decision.
In the verdict, it was stated that “it is also for the same reason that the review application has to be fixed before the same bench that issued the judgement or order sought to be reviewed,” which is in accordance with Rule 8 of Order XXVI of the Rules.
According to the judgement, it was not difficult to understand that the same attorney and bench could best grasp the grounds of review. This was stated in the judgement.
“A review that is argued by a new counsel in front of a new bench would invariably amount to rehearing of the primary case, which would go outside the purview of review as defined by the statute. It is true that the necessity of a’sufficient ground’ for the granting of 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 the filing of an application in this regard by a petitioner,” the verdict added. “The court shall exercise its discretion to grant or decline the special leave in accordance with an application in this regard by a petitioner.”
“Discretion, just like any other discretion, is to be employed judiciously for justifiable reasons by taking into consideration the specifics of the situation at hand.” “The special leave to substitute a lawyer in a review petition is to be granted, as held by a full bench of this court in the Dr. Mubashir Hassan case (NRO), only where [the] appearance of the earlier counsel is not possible due to some unavoidable circumstances,” the reading of the judgement stated.
The practise 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 condemned, as stated in the verdict’s conclusion. “The practise of filing review applications by changing the counsel without justifiable reasons or unavoidable circumstances is condemnable,” the verdict stated.
