' CHAUDHURY RAHIM DAD KHAN, C J.-This is an appeal, by leave, against the judgment of the High Court dated 8-2-1977 by which it confirmed the judgment and decree of the first appellate Court (District Judge, Muzaffarabad) dated 26-9-1975.
2. Respondents Nos. 4 to 10 instituted a declaratory suit, with prayer for permanent injunction, in the Court of the Additional Sub-Judge, Muzaffarabad, against Mir Ali, Muhammad Akbar and Ali Akbar respondents Nos. 1 to 3. The declaration was sought to the effect that they were entitled to use the water of 'Chashma Sar' for irrigation of their land measuring 10 kanals detailed in the plaint, for 23 hours out of 4 hours with a prayer for restraining the defendants from interfering with the exercise of their right to use the water of the said spring. During the pendency of the suit Sarwar Khan, the present appellant, and Munawar Khan respondent No, 9, were allowed to join as plaintiffs vide order dated 11-8-1971, at their own request, on payment of Rs, 20 as cost. It was claimed by Sarwar Khan, appellant, that his land measuring 2 kanals, 11 marlas, under Survey No, 57 was also being irrigated by the waters of the same spring, namely, 'Sae. His (Sarwar Khan's) claim was supported by a copy of the entry in the Settlement Record showing the usage of irrigation from the said spring. The costs awarded for allowing Sarwar Khan to join as plaintiff, were also cashed by the respondent in the open Court. Thereupon his name was incorporated in the plaint in the array of plaintiffs but omitted to make necessary correction in the plaint regarding his land bearing survey No, 57, measuring 2 kanals, 11 marlas, which under usage was being irrigated by the disputed spring, that necessitated his joining in the suit as plaintiff. Consequently; the judgment that was passed on 31-7-1975 by the trial Court did not cover the land of the petitioner that was being irrigated by the water from the spring 'Sae, although a declaratory decree was passed by his favour holding him entitled to the right of using the water of the spring alongwith other plaintiffs for 23 hours a day and restraining the respondents (defendants) from interfering with the said right of the plaintiffs. Respondents (defendants) went in appeal against the judgment and decree of the trial Court in which Sarwar Khan (plaintiff), appellant, was also impleaded as respondent. Sarwar Khan, the present appellant, also filed an appeal which was presented before the first appellate Court on 10-9-1975. It was submitted that the trial Court inadvertently omitted to mention the land under Survey No, 57 in the judgment and the decree and prayed for necessary amendment of the decree.
3. This appeal was filed on 10-9-1975. The cross appeal, filed by Mir Ali and others, was presented on 2-0-1975. This judgment in the case was delivered by the trial Court on 31-7-1975. Application for obtaining copy of the decree, as appears from the endorsement thereon, was presented on 13-8- 1975 and the copy was supplied on 7-9-1975. In the cross appeal, filed by Mir Ali and others on 2-9- 1975, application for copy was moved on 28-8-1975. From the judgment of the first appellate Court it appears that the appellant, according to his own calculation, was entitled to the exclusion of 25 days (though he was entitled to exclusion of 26 days), spent by him in obtaining the copy, from the period of limitation for filing an appeal. The appeal was filed on 41st day after the passing of the judgment and the decree. If the period spent in obtaining the copy of the judgment and the decree is excluded, there remain only 15 days within which appeal was filed before the first appellate Court. But strangely enough without calculating the period intervening in between the passing of the decree and the filing of the appeal, the learned District Judge, Muzaffarabad, dismissed the appeal holding it time-barred and the High Court too relying on the admission of the Advocate for the appellant and without looking into the facts of the case for itself, confirmed the finding of the first appellate Court. We could stop here and pronounce the judgment but since other important points are involved on which leave to appeal was granted, we feel obliged to examine them as well.
4. Leave to appeal was granted to consider "as to whether in the circumstances of this case the appellate Court below had correctly applied the law in refusing to decide the claim of the petitioner and the trial Court in passing the judgment and the decree without deciding about the petitioner's claim" ?
' After the order of the Court dated 11-8-1971 allowing appellant, Sarwar Khan, to join as plaintiff, on payment of lbs. 20 as costs and that too without objection on the part of either the defendants- respondents or plaintiff-respondent ; it was the duty of the office to make necessary entries in the body of the plaint in accordance with the prayer contained in the petition filed by Sarwar Khan and Munawar-which petition is at page 36 of the original file and which was granted by the Court. It is clearly stated therein that land measuring 2 kanals, 11 marlas, under Survey No, 57, in accordance with the established usage as recorded in the Settlement Record is also being irrigated from the spring named 'Sae. The office of the trial Court, however, entered the name of the appellant- plaintiff in the array of the plaintiffs but omitted to include in the plaint the land under Survey No, 57 measuring 2 kanals II marlas belonging to Sarwar Khan. In the circumstances, when there was an omission on the part of the office as well as that of the Court, the appellant-plaintiff could either apply before the trial Court, even after passing of the decree for amendment of the decree, under section 151/152, C. P. C. Or he could move the appellate Court for amendment of the decree of the trial Court. The plaintiff followed the latter course as would appear from the perusal of the appeal, which, in fact, as appears from its contents, was an application for the amendment of the judgment and decree.
5. Apart from the factual aspect, whether the appeal was time-barred or not, the dismissal of the appeal filed by Sarwar Khan without taking into consideration the circumstances of the case and assertions made in the appeal and, the fact that the decree of the trial Court was in favour of the appellant-plaintiff and; that the prayer, in the appeal, filed by Sarwar, was in substance only for amendment of the decree, suggest inadvertence on the part of the Presiding Officer of the first appellate Court. As the appellant was not represented by a counsel, he deserved all the more attention of the Court in a State that has come into existence in the name of Islam. A Presiding Officer of a Court of law, entrusted with settlements of disputes, is under obligation to do justice.
They are not discharged of the obligation by inadvertent admission of the counsel regarding a matter which is clearly wrong. Islam lays great emphasis on the hearing of the disputes and also the way in which the settlement is to be arrived at" S. IV : {{ARABIC TEXT}} "Ali reported ! The Messenger of Allah sent me to Yemen as a Judge. I said : 0 Messenger of Allah !
You are sending me while I am young in years and I have no knowledge of judgeship. He said : Verily Allah will soon give guidance to your heart and make your tongue firm. When two persons come to you for decision, don't give decree in favour of the first till you hear the argument of the other, because that is more necessary that decision may become clear to you. He said : I had afterwards never entertained any doubt in decision."
(Tirmizi, Abu Daud, Ibn Majah).
' We may refer here to Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (1) wherein at page 696 Mr. Justice Kaikaus observed :- "It may be pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel. Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party."
' Again in Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner (2) Mr. Hamood ur Rehman, C. J., as he then was, observed at page 395 that "it was the duty of the Courts below to have noticed this and then to have applied the proper law. Whether a litigant draws the attention of the Court to it or not, it is the duty of the Court to apply the correct law". Thus, it is quite clear from the above that it is enjoined upon a Judge to hear patiently the parties before him.
Hearing patiently certainly applies reading minutely any appeal, petition and application filed by a party. If this wholesome advice, given by the Holy Prophet and eminent jurists, had been kept in view perhaps all subsequent litigation, so far, resulting in unnecessary loss of time and money of the parties, might have been avoided. Muslim jurists have not approved the pronouncement of a judgment by a Judge 'while he is angry or feeling drowsy because such situation diminishes the understanding and intellect of the Qazi'. (The Hidaya). The careful examination of the (so-called) appeal reveals though it was styled as appeal, yet, it was in fact, a petition for amendment of the judgment and the decree that omitted to mention the appellant's land measuring 2 kanals, 11 marlas under Survey No, 57 in village Khilla, Tehsil and District Muzaffarabad.
Even according to the law being administered in this country, it is the duty of the Court to do justice between the parties. Administration of justice thus is the moral and legal obligation of the Court alone and while deciding a dispute between the parties the Courts are duty bound to examine the cause thoroughly to avoid the chances of error as far as possible and should not depend entirely on the Advocates.
6. The appeal (so-called) has been worded in most inartistic manner. We are of the view that the Courts should construe the pleadings liberally so as not to deny substantial justice to a litigant for unskilled drafting of the petition writers. In Sri Mannatha Nath Kuri v. Moulvi, Muhammad Mokhlesur Rehman and others (3) their Lordships of the Supreme Court of Pakistan have, in a suit under General Law of Tort as well as Fatal Accidents Act where the plaintiff omitted to mention that the suit was for damages under the Fatal Accidents Act-observed as follows :- "The plaint, which has been drafted by a Mofassil lawyer, is no doubt, very inartistically worded and it does not set out the:
(1) P D 1965 SC 690 (2) 1972 SCM R 359 (3) PLD 1969 SC (Pak.) 565 ' cause of action with any degree of precision. But reading the plaint as a whole liberally, according to the accepted principle of construction of Mofassil pleadings, there can be no manner of doubt that the cause of action pleaded was in substance for damages under the Fatal Accidents Act, even though the draftsman had erroneously included therein averments of general damages by way of solarium for the grief and suffering caused to the parents by the loss of their child and others irrelevant matters."
' There are other authorities of various High Courts of Pakistan on the point. The standard of pleadings in Azad Kashmir, as compared with Pakistan, is in no way better. War of The Hidaya liberation, due to heavy influx of the population of both sides, created a great vacuum particularly in the legal field. Even after 30 years we feel we have not succeeded so far in attaining the desired standard of skill in the pleadings.
7. In a case of an omission, when an amendment of a decree is sought, by an appellant, he may apply to the trial Court, of course before the appellate Court substitutes its own decree for the decree of the trial Court. This so-called appeal, as said elsewhere, was in fact, a petition for amendment. Considering it so, the question of limitation would not at all arise. Section 152 of the Civil Procedure Code allows clerical error in a plaint giving rise to an error in the judgment and decree, to be set right. Order passed under misapprehension of facts can also be rectified under inherent powers of the Court, to correct an obvious error on the face of the record. In the present case, it was a purely clerical the error and the first appellate Court, when it was seized of the matter as a Court of appeal, could itself correct the error. In Sattar and others v. Nazir Khan and others (1) it was observed that,: "Section 152, however, applies both to judgments and decrees. The Court is given power to correct the errors arising from any accidental slip or omission.
' In my opinion there was a clear accidental slip in including in the judgment somebody else's property instead of the property of the defendants against whom the decree was passed. The map will have to be revised, but there is no reason why that should not be done by the Court in the present proceedings. S. 151 declares, what was always law, that a Court can make any such order that may be necessary to prevent abuse of the process of the Court."
' In the instant the case staff omitted to make necessary correction as to add the area of the land owned by the plaintiff-appellant under Survey No, 57, in the plaint. Therefore, even the Court of which was seized of the jurisdiction at that time, because of an appeal filed by the opposite-party, pending before it, could revise the order of the trial Court so as to avoid the abuse of the process of the (1) AIR 1929 All. 147 Court. In Parsotam Dass and others v. Muhammad Hamid Mirza Beg and others (1) the question of correction of clerical error resulting in wrong order came for determination before the Court. It was observed at page 293 of the report as follows :- "Where there is a clear case of a clerical or arithmetical mistake or of an error arising from an accidental slip or omission in judgments, decrees or orders the Court may correct the mistake or the error independently of the fact that the same mistake or error could have been corrected by the Court of appeal. In our judgment it will be reading section 152 out of the Code and not interpreting it were we to hold that it would not apply to a case where the mistake or error could be corrected on appeal but was not so corrected or where no appeal was preferred. The procedure is intended to provide for a speedy and inexpensive relief to a party affected by any such mistake or error and does not contemplate to impose upon him the necessity of preferring an appeal as regards such a matter which in the very nature of things must entail large expenditure of money and time."
' To the same effect are AIR 1932 All. 587 and AIR 1934 All.
287.
' In Noora v. Muhammad (2) at page 134 it was observed by Mr. Justice S. A. Rahman that : "If, by inadvertence, in the description of the property thus left by her, the plaintiff-respondent failed to mention certain properties, it was eminently just and fair that he should have been allowed to apply for correction of the decree. The High Court has remanded the case to the trial Court, with a direction that the application for amendment may be entertained and after obtaining sufficient particulars of the property involved, from the respondent may pass orders in accordance with law."
' PLD 1963 SC (Pak.) 205 also supports the same view.
' In the circumstances and the law stated above we are of the view that it was the duty of the Court to rectify the error in the light of the provisions of sections 151 and 152 of the C. P. C. And if it was only a clerical error in the plaint, due to negligence of the staff, it could be rectified in order to avoid the abuse of the process of the Court without adverting to the question of limitation.
8. Of course the section 3 of the Limitation Act provides that every suit instituted, appeal preferred or application made after the prescribed period of limitation shall be dismissed ; but section 5 of the Limitation Act is one of the provisions to which general rule contained in section 3 is subject and ; provides for extension of the time in certain specified application or appeal if the applicant or appellant satisfies the Court that there was 'sufficient cause' for the delay in filing the proceeding.
(1) AIR 1932 Oudh 291 (2) 1970 SCMR 133 ' The first appellate Court, in the instant case, did not enlarge the period of limitation for extension of the time. We are conscious that there are authorities in support of the view that without an application for enlargement of the time the Court should not condone the delay but the law laid in an authority primarily applies to the peculiar circumstances of that case. To the contrary there are also authorities in support of the view that the Court, in the circumstances of certain case, could suo motu enlarge the time and condone the delay. In Mst. Kuls oomun Nissa and another v. Noor Muhammad alias Sultan Haider and another (I) it was observed at pages 667 and 668 of the report as follows :- "The first ground on which the appeal has been dismissed by the lower appellate Court is that the plaintiffs had not made any formal application for an extension of time under section 5, Limitation Act, and that, therefore, their appeal against Hakim Shyam Sundar Lal was beyond time. In our opinion the Court below has erred in exercising its discretion in this matter. The reason why Hakim Shyam Sundar Lal's name was omitted from the names of the respondents obviously was that his name did not find a place in the decree. He was impleaded later on within 30 days of the substitution of his name. We think that the lower Court should have allowed the defendant to get round the technical objection of the absence of a formal application for extension of time."
' As already pointed out by us there was no delay in filing the appeal in the instant case ; because period of limitation for filing an appeal before the District Judge, is 30 days from the date of the order appealed from under Article 152 of the Limitation Act, and after excluding the time spent in obtaining the copy, allowed under Article 12 of the Limitation Act, the appeal filed was clearly within the period of limitation. Even otherwise, for the sake of arguments, if there was any delay in filing the proceeding, the first appellate Court should have allowed the plaintiff-appellant to overcome the technical objection by condoning the delay, if necessary, without a formal application in the circumstances of the instant case. More so because there was a cross-appeal in which the present appellant (plaintiff) was respondent and the question of the right of usage of the water of the disputed spring to the land in dispute was directly involved in that appeal as well rendering the objection against condonation of the delay in filing the appeal, by Sarwar Khan appellant, a mere technicality.
9. We also note that in the cross-appeal, except the appellant-plaintiff and Arsla Khan respondent all others entered into a compromise. Consequently a compromise decree was substituted by first appellate Court for the decree that was passed by the trial Court. The first appellate Court came to the conclusion that the appeal filed by Sarwar Khan, was time-barred, therefore, dismissed his appeal and passed a decree on the basis of the compromise entered upon by other parties. A compromise decree cannot be held to be binding on a person who is neither a party nor a signatory of such a deed. The simple reason is that consent decree being a creation of an agreement can bind only those who are parties to that agreement and also because such a decree cannot claim greater sanctity than that can be attached to an agreement itself.
(1) AIR 1936 All. 666 ' The Privy Council in Sourendra Nath v. Tarubala (1) has observed that "the Court has a duty, not a discretion to record a lawful compromise subject possibly to any inherent power of refusal when substantial injustice would be worked".
' Moreover, a compromise decree passed in terms of Order XXIII,' rule 3 becomes final and conclusive only against the party to compromise deed and not against a plaintiff who is not a party to such compromise. It is the duty of the Court to examine the terms of settlement with care and caution and record the agreement and pass the decree in accordance therewith. The compromise decree in the instant case deprived Sarwar Khan appellant-plaintiff of his right to irrigate his land, under Survey No, 57, measuring 2 kanals, 11 marlas from the water of the spring 'Sar' without his consent and without properly examining his claim. Therefore, it will not be binding on him, as a compromise or agreement cannot be held to the elective against a person not a party to the suit qua his rights and liabilities.
' In PLD 1961 Azad J & K 8, referring to AIR 1923 Oudh 252 and AIR 1924 Cai. 150, it was observed :- "Before a decree is passed in accordance with a compromise it has to be established that the agreement of compromise was lawful. An agreement which involves injury to a third party or a compromise between the plaintiff and one defendant prejudicial to the other defendant is not lawful agreement. Where, by the compromise the right of a person who was interested in contesting the minor plaintiff's claim and who was a necessary party, had been ignored and prejudicially affected, the agreement was held to be an unlawful agreement,"
' We are therefore of the considered view that the compromise, in the instant case, has resulted in substantial injustice against Sarwar Khan appellant and is, therefore, not binding on him. Hence we set aside the compromise decree to the extent it affects the right of Samar Khan plaintiff- appellant.
10. In view of the fact that appeal filed by Sarwar Khan appellant before the first appellate Court, Muzaffarabad, has been erroneously dismissed as time-barred under a clear misconception and, that the compromise decree affects the vested right of Sarwar Khan appellant in spite of his not being a party to the said agreement ; and that the decree, consequently passed being not legally binding on him to the extent of his right, is set aside. Obviously the question would arise whether the case should be decided by this Court itself or it should be remanded back to the first appellate Court.
11. Both the parties in the instant case have led the evidence ; oral as well as documentary, before the trial Court. The finding of the lower appellate Court, so far the right of the appellant is concerned, is without analyzing the evidence of the witnesses and without discussing the reasons given by the trial Court. The parties have been litigating since December, 1969 for more than nine years; that oral as well as documentary evidence is already on record ; and that the parties had fully availed of (1) (1930) 57 A. 133=-57 Cal. 1311=123 I C 545=30 P C 15 the opportunity for adducing evidence in support of their respective claims, we, in view of long string of authorities, feel advised to decide the appeal ourselves instead of remanding it to the lower appellate Court. We may refer here to some of the precedents having direct bearing on this question.
' In Dhanpal Madras( v. Superintendent of Collieries (1) at page 632 of the report their Lordships held that 'it is quite unnecessary we having all the evidence before us, to send the case back to the Commissioner for the purpose of making the estimate. That would only prolong the proceedings infinitely and put the parties to entirely unnecessary expense'. In Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others (2) at page 442 of the report repelling the argument advanced on behalf of the appellant, namely, that in any event the learned Judges should not have decided the case themselves but should have remanded the case to the proper Court for determination of the question as to whether there was a valid tenancy or not, their Lordships observed that we are unable to accept this contention. A remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself. There can be no bar to the Court doing so'. We are of the view that the learned Judger of the Supreme Court of Pakistan have correctly laid down the law in this behalf and the reasons advanced in support of the decision of the Supreme Court to decide the case itself instead of remanding it to the first appellate Court for determination of the question involved, equally apply to the instant case.
' In Mst. Hussain Bibi v. Zafarullah Khan and another (3) considering powers of the appellate Court to remand or dispose of the case itself under the provisions of Order XLI, rules 23 and 24 of the Civil Procedure Code it was observed at page 752 that the question which arises here is as to whether the case should be remanded for retrial or should be disposed of by this judgment. Counsel for the appellant says that both courses are legally open to this Court, but the better one in the circumstances of this case is to decide the matter in these proceedings because this appeal was filed in 1957 and nine years have already passed waiting for its decision. I am inclined to agree with this view and would like to take up the central point of the case for decision'. Again in Amanullah Khan v. Chotey Khan (4) where the High Court declined to remand the case to the Rent Controller the Supreme Court of Pakistan, in the circumstances of the case, observed that 'on this view of the matter it would not have served any purpose to remand the case for the issue of default could not have been disputed'.
In the instant case there is evidence oral as well as documentary in support of the claim of the parties that they have right to use the water of Spring `Sar' for their land. According to the record the total land come to 5 kanals and 7 marlas that is irrigated from the water of this Spring. This fact is even admitted by the respondent plaintiff as well as defendant. The defendants in their written statement before the trial Court! Did not dispute the claim of the plaintiff to the right of the usage of water for Irrigation purposes but they contended that due to a lapse of:
(1) AIR 1934 Pat. 630 (2) PLD 1965 SC (Pak.) 434
(3) PLD 1967 Lab. 744 (4) 191 SCMR 14 ' limitation they too have acquired right to use the water of this spring to the newly-broken land in addition to the land already being irrigated and that the disputed spring is situate in their own land. But there is no evidence in support of their claim that their right to use the water has matured by prescription ; and that the spring is situate in their land ; rather the preponderance of evidence is on the other side. We may refer here to the copy of Khasra Girdawari Exh. P. A. Which shows that the spring is situate in survey No, 250 which is a village common land. Mir Ali respondent (defendant) converted one kanal unirrigated land, under Survey No, 249, into irrigated one.
Moreover, Ali Akbar, defendant No, 3, by a compromise deed which is at page 40 of the original file admitted that he is not in possession of any irrigated land and, therefore, he is not entitled to usage of the water from the disputed spring. Mir All and Ali Akbar also in their compromise deed which is at pages 38 and 39, admitted the claim of other plaintiff. On these premises, viz. The oral and documentary evidence as well as the terms of previous compromise M deed we are of the view that there is sufficient evidence on record for deciding the cause by this Court.
' After careful examination of the aforementioned evidence we are of the view that it is clearly established that land under survey No, 57 measuring 2 kanals, 11 marlas, situate in village Khilla, is an irrigated land and according to the entry in the Settlement Record the appellant-plaintiff as a descendant of Nasir Ali, is entitled to irrigate this land from water flowing down from Spring 'Sar' on his turn as detailed in the copy of {{URDU TEXT}} placed at page 60 of the original file. He is entitled to enjoy the right of the user of the water that flows down after irrigation of the land of the dominant owners entitled to irrigate their respective land in accordance with their rights of water usage recorded in the Settlement Record. The defendants are directed not to interfere with the right of Sarwar Khan plaintiff to the extent recorded in the Settlement Record pertaining to year 1986, Bikrimi, a certified copy of which is at page 61 of the original file. Consequently judgment and decrees of the District Judge Muzaffarabad dated 26-9.1975 and that of the High Court dated 8.2- 1977 are set aside to the extent they affect the said rights of plaintiff-appellant thereby restoring the judgment and decree passed by the trial Court to the extent of the right of the plaintiff with the modification that land under Survey No, 57 is irrigated land and the plaintiff appellant is entitled to share water to the extent of usage of water as recorded in the Settlement Record of 1986 Bikrimi.
' In view of the peculiar circumstances of this case we leave the parties to bear their own costs throughout.