MUSHIR ALAM, J.--- C.M.A. No,9047 of 1999. Instant application under sections 151 and 152, C.P.C. read with Order XX, rule 6, C.P.C. has been filed by the plaintiff seeking correction of the decree in accordance with judgment passed in suit in accordance with Order XX, rule 6, C.P.C.
2. It appears that, in the first instance listed application was dismissed vide order, dated 10-4-2000.
However, in H.C.As. Nos,54 and 55 of 1997, learned Division Bench set aside the order with direction to the learned Single Judge to decide the application afresh on merits, after hearing the parties within two months from the date of the order, dated 16-3-2006, therefore, this matter came up for hearing before me.
3. It appears that the plaintiff had filed instant Suit No,878 of 1986 for specific performance of the agreement dated 23-12-1985 possession, mesne profit and other incidental relief thereto.
4. Defendant also filed counter-Suit No,755 of 1987 for cancellation of the said agreement, declaration and injunction. Both the suits were consolidated vide order, dated 13-12-1994. First mentioned suit was treated as leading suit. Issues were struck down, and evidence was recorded. It appears that, the Suit No,878 of 1986 for specific performance was decreed "to the extent mentioned above at page 17 with cost, suit for cancellation of document is dismissed".
5: Learned counsel for the plaintiff contends that, all the issues that were struck down in context of specific performance were decided in favour of the plaintiff. However, when the decree was drawn, it was confined only to mesne profit in the sum of Rs,8,000 towards two months rent @ of Rs,4,000 per month in terms of documents dated 30-7-1986 and cost of the suit. It was urged that, the decree omitted the relief of specific performance, execution of the documents and possession to which the plaintiff in suit for specific performance, when decreed, is invariable entitled to.
According to the learned counsel, decree is to be drawn in consonance with the judgment. Since the decree suffers from infirmity, relief of specific performance i,e, for the execution of sale-deed and for possession was inadvertently omitted it is to be corrected in exercise of the power conferred on the Court under section 152, C.P.C. read with section 151, C.P.C.
6. It is urged that, the suit was decreed on 16-2-1997, decree was drawn on 3-3-1979 listed application was filed on 26-10-1999. Mr. Mumtaz, learned counsel for the plaintiff contended that, the omission to grant relief of specific performance and possession came to the notice of the plaintiff, when certified copies of judgment and decree were obtained, instantly listed application was moved. According to the learned counsel, plaintiff cannot be deprived of the relief of specific performance and possession for the act of omission of the Court to frame and draw decree in accordance with the judgment. He prayed for the correction of error and to incorporate the relief omitted while drawing of decree. He beseeched to draw decree afresh in consonance with the judgment.
7. Mr. Mamnoon Hasan learned counsel for the defendant contended that, the jurisdiction of the Court under section 152 is limited to correct clerical and arithmetical error and omission. According to him, no clerical error and mistake has been pointed out, therefore, the application is misconceived. It was further urged that if at all, plaintiff could have invoked the review jurisdiction of this Court, which remedy, plaintiff allowed to lapse. Plaintiff cannot be allowed to circumvent the limitation through listed application, which according to him, is not maintainable. It was vehemently urged that, valuable right has accrued to the defendant, the amendment, as prayed for, cannot be granted to, deprive the defendant of the right, which has accrued to him. It was urged that the case cannot be reopened afresh, matter is in appeal, let the appellate Court decided the same.
8. Exercising right of rebuttal learned counsel for the plaintiff contends that, since the decree has not been drawn in accordance with Order XX, rule 6, C.P.C. mistake of the Court cannot penalize the plaintiff. To a specific query of the Court, whether omission to incorporate relief could be supplemented? He responded that, since the relief of specific performance in the judgment has been granted, it is only in the decree same is not reflected, such omission could be supplemented in exercise of power under section 152, C.P.C. In support of his contention, he placed reliance on the case of Mst. Ashraf Bibi v. Barkat Ali PLD 1956 Lah. 27; Tepri Mai Bewa v. Farey Mahmud and others PLD 1970 Dacca 475 and Ghulam Muhammad v., Sultan Mahmud and others PLD 1963 SC 265.
9. As a rejoinder Mr. Mamnoon, learned counsel for the defendants, while placing reliance on the case of Sultan All v. Khushi Muhammad PLD 1983 SC 243 urged that, after passing of the judgment and decree this Court has become functus officio and cannot add anything to the judgment and decree already announced. According to him, it is prerogative of the Appellate Court in exercise of appellate jurisdiction or the Court that passed the judgment and decree or order in exercise of its review jurisdiction and not otherwise. He urged that, since period prescribed for review has lapsed, valuable right has accrued to the defendant, listed application does not merit consideration. He has placed reliance on the case of Water and Power Development Authority v. Aurangzeb 1988 SCMR 1354. Mr. Mamnoon, contends that the decree has been drawn as per relief granted.
10. I have examined the plaint in the instant Suit No,878 of 1986. It is a suit for specific performance of the agreement, dated 23-12-1985. Plaintiff had prayed for the relief of specific performance, possession, mesne profit and all other relief incidental thereto in the following terms:--
(i) To direct the defendants to complete the transaction in favour of the plaintiff by executing all the necessary title deeds/documents after taking balance consideration of Rs,5,60,000 or in failure the Nazir of this Honourable Court may be directed to execute the sale-deed in favour of the plaintiff on behalf of the defendants;
(ii) To direct the defendants to hand over vacant peaceful possession of the Bungalow No,F/67/D, Block 8, Kehkashan Clifton, K.D.A. Scheme No,5, Clifton Karachi to the plaintiff;
(iii) To direct the defendants to pay Rs,10,00,000 as damages to the plaintiff with interest at the rate of Rs,16 per cent per annum from the date of the filing of the suit;
(iv) To direct the defendants to pay rent of the said property at the rate of Rs,4,000 per month from the month of July, 1986 till the handing over of Bungalow No,F/67/D, Block 8, Kehkashan Clifton, K.D.A. Scheme-5, Clifton Karachi to the plaintiff;
(v) to restrain the defendants, their agents, attorney, representatives and any person acting on their behalf from transferring and parting with possession or entering into any agreement including rent agreement to any third party in respect of Bungalow No,F/67/D, Block 8, Kehkashan Clifton, K.D.A. Scheme-5, Clifton, Karachi;
(vi) Any better and additional relief/reliefs which this Honourable Court may deem fit and proper in the circumstances of the case;
(vii) Costs of the proceedings.
12. (sic) Out of the pleadings of the parties issues pertaining to the relief of specific performance are referred to at page 17 of the judgment issues numbers 8 to 13 are relevant, which read as follows:--
(8) Whether the defendants Nos,1 and 2 were jointly responsible to ensure that the documents of registration are completed in time?
(9) Whether the defendants were bound to hand over possession as per Schedule envisaged in the sale agreement?
(10) Whether the plaintiff was required to make the payment of remaining amount at the time of registration of sale-deed and handing over of vacant possession of the house to him?
(11) Whether any requests of extension of time in handing over the vacant possession of the house were made by defendants?
(12) Whether defendants were liable to pay a monthly rent of Rs,4,000 to the plaintiff as claimed?
(13) Whether the defendants are liable to pay damages and interest to the plaintiff as claimed?
13. After discussion of evidence this Court had drawn conclusion on the above issues at page 17, which reads as follows:-- "Now I proceed to deal with other issues. Issue No,5, refers to documents executed by Saleem Hayat Khan, seeking extension of time for delivering possession of the disputed property and also promising to do the needful within the extended time. The validity of these documents has already been discussed above and my findings are that, they are legal and binding on the defendants. As a corollary to these, issues Nos,9 and 11 are answered in the affirmative. Answers to issues Nos,8 and 10 are available in the agreement of sale itself, which is an admitted document. Defendants Nos,1 and 2 are parties to the agreement and they had also assumed joint responsibility to complete it. As such my finding on issues Nos,8 and 9 are in the affirmative. Issues Nos,12 and 13 can be taken up together. Plaintiff is entitled to/two months rent at the rate of Rs,4,000 per month in terms of the document dated 30-7-1986 but he cannot claim other damages or interest.
14. From the record it appears that, the Court while decreeing the suit for specific performance of agreement and dismissing the suit for cancellation of agreement concluded as follows:-- "The upshot of the above discussion is that Suit No,878 of 1986 is decreed to the extent mentioned above (at page 17) with cost while Suit No,755 of 1987 is dismissed with cost."
15. It is apparent from the conclusion drawn by this Court on Issue No,(8) Whether the defendants Nos,1 and 2 were jointly responsible to ensure that the documents of registration are completed in time? And Issue No,(10) Whether the plaintiff was required to make the payment of remaining amount at the time of registration of sale-deed and handing over of vacant possession of the house to him? Finding of the Court as recorded on page 17 of the judgment is "Defendants Nos,1 and 2 are parties to the agreement and they had also assumed joint responsibility to complete it".
It is thus, clear that, Court concluded that, "the defendants Nos,1 and 2 had also assumed joint responsibility to complete it". It is thus, clear that, the defendants Nos,1 and 2 were jointly held responsible to ensure that the documents of the registration are completed in time. And the plaintiff responsible to make the payment at the time of registration of sale-deed as per schedule envisaged in the sale agreement.
16. Now adverting to finding recorded on Issue No,(9) Whether the defendants were bound to hand over possession as per Schedule envisaged in the sale agreement? And Issue No,(11) Whether any requests of extension of time in handing over the vacant possession of the house were made by defendants?, finding record at page 17 of the judgment by the Court on both the issues were "answered in the affirmative". It conclusively shows that, defendants were bound to hand over possession as per schedule envisaged in the sale-agreement. Further that defendants made requests of extension of time in handing over the vacant possession of the house. In the face of such finding there can be no two opinions that, it was at the request of the defendant time for handing over the possession was extended.
17. As regards issue pertaining to mesne profit, it was decided in favour of the plaintiff. It may be noted that, the Court granted the relief of mesne profit of two months only while declining the relief of damages. Now examining the decree as drawn, after reproduction the prayer clause, operative part of the decree reads as follows:-- The suit coming on this 12th day of November, 1996. For arguments and finally for judgment on 16th day of February, 1997 before Mr. Justice Dr. Ghous Muhammad in the presence of Mr. Mumtaz Ahmed Shaikh, Advocate for the plaintiff and Mr. S. Mamnoon Hassan, Advocate for the defendants, it is hereby ordered that the plaintiff's suit is decreed against the defendants as under:-- That the defendants do pay to the plaintiff a sum of Rs,8,000 per month in terms of the documents dated 30-7-1986 and cost of the suit as taxed and shown below.
18. On reading the above, it is apparent that, the decree drawn was only to the extent of mesne profit, leaving out or omitting the relief of execution of sale-deed and delivery of possession of the suit property.
19. Judgment is verdict or decision of the Court usually recorded after recording the evidence and hearing the contesting parties. It is a conclusive judicial determination of rights of parties in any legal proceedings. Decree, is formal expression of opinion of the Court, it follows the judgment.
When conclusion of the Court is translated into executable form, it is reflected in the "decree".
Decree must be drawn in consonance and in conformity with decision of the Court. Order XX, rule 6, C.P.C. which reads as follows:-- "Rule 6. Contents of decree.--- (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or' out of what property and in what proportions such costs are to be paid.
The Court may direct that the costs payable to one party by the other shall be set off against any sum, which is admitted or found to be due from the former to the latter.
20. On reading Rule 6 of Order XX, C.P.C. it is but clear that, the decree should be in accordance and in conformity with the judgment.
Decree in fact is will of the Court, it is true reflection of the judicial determination of rights of the parties made by the Court. It is the decree that is executed or implemented. It is duty of the Court, while drawing the decree, to specify clearly the relief granted or other determination of rights of the parties in the suit so as to make it in conformity with the will of the Court capable of enforcement.
21. On examination of the judgment, it appears that, the Court found that, defendants Nos,1 and 2 "party to the agreement had assumed joint responsibility to complete it". Quoted expression is a clear manifestation of the Court's opinion that, the defendants Nos,1 and 2 were held liable to specifically perform the agreement of sale. Suit has been decreed in terms of the relief contained in para.17 of the judgment. Paragraph number 17 of the judgment as reproduced above, do stipulate the responsibility of the defendant to do the needful i,e, to complete the transaction. Very fact that, the Court had also granted mesne profit presupposes that plaintiff was found to be entitled to the possession of suit property and that the defendants are in unauthorized possession, otherwise, there was no occasion to grant the relief of the mesne profit. However, when the decree is examined, it is evident that, it does not appear to represent the true will of the Court. While drawing decree in the instant suit, relief of specific performance of the agreement, and relief of possession ought to have been drawn, which has been accidentally slipped or omitted.
22. Now the question whether the omission in the decree to expressly contain directions to execute sale-deed and deliver possession could be supplemented in exercise of the authority under section 152, C.P.C. it would be beneficial to reproduce the section, which reads as follows:-- "Section 152. Amendment of judgment, order:--- Clerical or arithmetical mistakes in judgments, decrees, or order or error arising thereon from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
23. Contention of Mr. Mamnoon, learned counsel for the defendant that, it is the only clerical or arithmetical mistakes in judgments and decree or order that could be corrected, in the context of section 152, C.P.C. is half-truth. Whole truth appears to be that, the Court under section 152, C.P.C. is not only competent to correct clerical or arithmetical mistake but may correct accidental slip or omission as well. Section 152, C.P.C. clearly defines the power of the Court to correct clerical or arithmetical mistake in the judgment, decree or order or errors on account of accidental slip or omission arising therefrom. Section 152, C.P.C. can be conveniently divided into two parts. First half of the section provides authority to correct "clerical or arithmetical mistake in the judgment, decree or order", other half after or provide authority to correct error arising thereon from any accidental slip or omission. Use of word "or" indicates that, such powers to correct are not conjunctive but disjunctive and qualified. To correct clerical or arithmetical mistake, it means where some mistake either in calculation or numerical figures creeps in, which figures could be verified from the record, or where any party, property or fact has been incorrectly described or where some typographical error has crept in. Second half of the section 152 (ibid) contemplates "error arising thereon from any accidental slip or omission". Catchword in the phrase "accidental slip or omission" as used in section 152, C.P.C. is "accidental", it qualifies `slips' and 'omissions'. "Accidental" is defined in Chambers 20th Century Dictionary as "happening by chance". In Merriam Webster on line Dictionary, it is defined as "an event occurring by chance or unintentional; happening unexpectedly or by chance or happening without intent or through carelessness" it means "not deliberate".
"Omission" is derived from root word "omit", it means "to leave out to fail" (Chambers 20th Century Dictionary). In Merriam Webster on line Dictionary omission is defined to mean, "something neglected or left undone, to leave out or leave unmentioned, to fail to perform". Thus, it could be said that "accidental slip or omission" as used in section 152 C.P.C. means 'to leave out or failure to mention something unintentionally'. Thus, it could be safely said that, it is only where, the slip or omission is accidental or unintentional it could be supplemented or added in exercise of jurisdiction conferred under section 152, C.P.C. Such course is provided to foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings. However, where slip or omission is intentional and deliberate, it could only be remedied or corrected by way of review if permissible or in appeal or revision as the case may be, as suggested by Mr. Mamnoon.
24. In the case reported as Bank of Credit and Commerce International (Overseas) Ltd. v. Messrs Ali Asbestos Industries Ltd. and 5 others 1990 MLD 130, the Court in exercise of Banking jurisdiction, while granting preliminary decree, inadvertently omitted the relief against mortgage property. It was found that the plaintiff therein was entitled for mortgage judgment, consequently, such correction in the judgment was allowed in exercise of section 152, C.P.C. In the instant case, as discussed above, in fact plaintiff was found to be entitled to all the relief but same was not reflected in the decree. In the case reported as Syed Saadi Jafri Zainzabi v. Land Acquisition Collector and Assistant Commissioner PLD 1992 SC 472. In land acquisition proceedings the award of compensation was made, however, while drawing decree additional compensation was not reflected in the decree. Executing Court declined such statutory compensation. Consequently, resort to section 152 was made, trial Court allowed the application, however, in appeal it was dismissed. Apex Court in para.9 of the judgment held as follows:-- The Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omission in a judgment, decree or order. Depending on facts, it confers a wide discretion on the Court to correct, (i) clerical or arithmetical mistake, (ii) errors caused due to accidental slip or omission in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or error by exercising power under section 152.
25. Thus, it could be seen that the Court do enjoy and could exercise, at any time jurisdiction, to supply the omission or slip provided it is accidental. Court may grant relief, which party has sought or otherwise is found entitled to, the Court is bound to grant such relief. Even in cases, where a party on the facts of case is entitled to a relief, but has omitted to pray for the same, then it is the duty of the Court to grant such relief. Court would be justified, at any point in time to correct not only the clerical or arithmetical errors but also to correct accidental omission or slip that might have crept into the order, judgment or decree.
26. In my opinion no limitation would come in the way of the applicant or in the way of the Court in exercise of its suo motu jurisdiction to deprive a party of the fruit of the judgment, which otherwise he is found to be entitled to.
27. Para.17 of the judgment and the issues on the basis of which decision was rendered is clear manifestation of the Court's will and opinion that the relief of specific performance and possession was granted and the cancellation of documents as claimed in Suit No,755 of 1987 was declined.
28. Therefore, in my opinion due to accidental slip and omission decree prepared in the instant case is not the true reflection of the judgment of the Court. Accordingly, application is allowed.
Decree is accordingly directed to incorporate relief of specific performance in terms of prayer (a), (b), (d) and (e) contained in prayer clause of the plaint. Application stand disposed of in terms above.