Amir Hussain Shah Petitioner-Defendant No. 2 filed the instant petition against the judgment and order dated 29.3.2010 passed by learned District Judge, D.I. Khan whereby the application preferred by the present petitioner under Section 152 C.P.C. seeking the amendment of decree sheet dated 13.5.2002 of District Judge, D.I. Khan was rejected.
2. The brief facts of the case are that Syed Imdad Hussain Shah deceased, the predecessor of Respondents No. 1 to 12, filed a suit against the petitioner and Fida Hussain Shah for specific performance of an agreement dated 06.9.1983 vide which he had purchased the suit property from the petitioner. It is pleaded in the plaint that the property comprised in Khata No. 77 incorrectly showing 53/560 share measuring 80 kanal 10 marlas which is the entitlement of Syed Imdad Hussain Shah in the said Khata. It is further pleaded that the original defendant Fida Hussain was not owner to that extent in the said Khata and in fact his ownership was to the extent of 47 kanal 08 marla (53/1440 shares). During the pendency of the suit, the plaintiff moved an application for impleadment on the basis of Mutation No. 371 dated 08.11.1988. The application was accepted and he was impleaded as party to the suit. The suit was contested by Petitioner-Defendant No. 2 by filing his written statement. Likewise, Fida Hussain Shah also filed written statement. After completion of all the formalities, the suit was decreed in favour of legal heirs of plaintiff on 01.06.1994 by the trial Court.
3. Syed Amir Hussain Shah petitioner, feeling aggrieved, filed an appeal against the judgment and decree which was dismissed on 24.9.1995. Revision petition filed against order dated 24.9.1995 was accepted on 17.4.2000, the judgment and decree passed by appellate Court was set-aside and the case was remanded to the learned District Judge for decision afresh on merits after hearing the parties.
4. On receipt of record by the learned appellate Court, the patties appeared there and Amir Hussain petitioner made an offer through an application dated 18.6.2001 for taking Oath by Imdad Hussain Shah respondent. His statement was recorded wherein he had stated that "in case Syed Aulad Hussain Shah, the brother of late Imdad Hussain Shah takes Oath on Holy Quran that the suit property was purchased by Syed Imdad Hussain in year 1983, paid the sale consideration and also obtained possession in the year 1983, his appeal be dismissed." The offer was accepted as offered by Syed Aulad Hussain, special attorney of legal heirs of Syed Imdad Hussain Shah by taking Oath as proposed by Syed Amir Hussain Shah. The Oath was administered and consequently, the appeal was dismissed.
5. Second round of litigation initiated when an application dated 25.02.2003 was made under Section 152 C.P.0 for correction/ amendment of decree sheet dated 13.5,2002. The correction/amendment was sought to the effect that the suit for specific performance was about Khata Nos.77 to the extent of share 53/560 measuring 80 kanal 10 marla and according to the petitioner, the said entry made inadvertently and incorrectly in the plaint, however, the correct share of old Khata No. 77 and present Khata No. 78 from where the property was sold is 53/1440 share the area of which comes to 47 kanal 08 marla, total area purchased by the plaintiff- respondent was 104 kanal 121/2 marla whereas 137 kanal 141/2 marla is incorrectly and inadvertently recorded in the plaint. The learned appellate Court, vide its order dated 16.4.2004 acceded the request of the petitioner and while treating the application under Section 152 C.P.C. and the sale transaction which was the subject matter of the suit ibid was restricted to the share of seller Syed Fida Hussain Shah which he had at the time of entering into agreement. In these terms, the petition was accepted and the decree sheet was directed to be amended accordingly.
6. Again, being dissatisfied with the judgment and order, Syed Imdad Hussain Shah deceased plaintiff through his legal heirs challenged the amended judgment and decree by filing C.R. No. 145/2001 in this Court which was decided on 09.2.2009. The operative part of the judgment of this Court is reproduced below: "Resultantly, I accept this revision petition, set-aside the impugned judgment and decree of the appellate Court and remand the lis to the same Court with the direction to record pro and contra evidence and also to see the competency of the application referred to above in light of the dicta handed down in the supra cases."
7. The learned appellate Court while seized of the matter, recorded the statements of Patwari, ADK and Syed Amir Hussain Shah petitioner. However, Syed Aulad Hussain, attorney of the respondents recorded his statement that he does not want to produce evidence. After, hearing the parties, the learned appellate Court opined that there is no clerical mistake in the judgment and decree so as to invoke the provision of Section 152 C.P.C., as such the application under Section 152 C.P.C. was rejected. Hence, the instant revision petition.
8. The learned counsel for the petitioner contended that the learned appellate Court has not considered factual and legal aspect of the case, as the share and area to the extent of 80 kanal 10 marla comprised in then Khata No. 77, was inadvertently entered whereas in the written statement, it is mentioned that the area should have been 47 kanal 08 marla and same is the prayer made in application under Section 152 C.P.0 which has been duly proved by leading evidence after remand of the case. He further contended that the learned appellate Court has not appreciated the plea of the petitioner in its true perspective. Syed Fida Hussain Shah Defendant No. 2 was the owner of the suit property. During the pendency of the suit, the disputed land was sold to present petitioner vide Mutation No. 371 attested on 08.3.1988.
9. As against that, the learned counsel for the respondents contended that the application made by the petitioner does not come within the ambit of the provision contained in Section 152 C.P.C. In case of its acceptance, the entire superstructure built upon the plaint filed by the respondents- plaintiff would crumble down.
10.I have considered the submissions of learned counsel for the parties and carefully perused the record.
11.The spirit lying behind Section 152 C.P.C. would not permit the proposed amendment in the judgment and decree passed by the learned appellate Court. The matter has already been decided by the trial Court as well as the appellate Court in two rounds of. litigation. Thereafter revision petition filed before this Court has also been accepted and matter has been remanded to the appellate Court with the direction mentioned above. In compliance of the order of this Court, the learned appellate Court recorded the evidence and in the light of the revenue record and statement of petitioner, dismissed the application. It is worth mentioning that in all the above mentioned proceedings of suit, appeals and revisions, the petitioner mentioned the area of 80 kanal 10 marla in Khata No. 77. Neither-the learned trial Court nor the learned appellate Court could be persuaded to accede his stance, as such, decree was granted to the tune of an area of 80 kanal 10 marla comprised in then Khata No. 77. The decree of the trial Court merged into the decree of learned appellate Court which is still intact and has attained finality. The area mentioned in the plaint was the subject matter in the proceedings of Oath offered by the petitioner and same was decided as a result of taking of Oath.
12.Even otherwise, in the circumstances of the instant case, the provisions of Section 152 C.P.C. are of no avail to the petitioner. The provisions of Section 152 C.P.C. are reproduced below for ready reference: "152. Amendment of judgments, decrees or orders ... Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omissions may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
The wisdom lying behind the above mentioned law is that whenever inadvertently clerical, arithmetical mistake, crept in judgments, decrees or orders, it can be corrected provided the same is found floating on the surface of the record, for the discovery of which, the Court has not to go deep into the merits of the case, such mistake can only be corrected by the Court.
13.However, when a specific plea is raised in the pleadings and the Court has dismissed the same and the appeal filed by the aggrieved party is also dismissed, in such circumstances, the matter cannot be reopened in the presence of the provisions of Section 152 C.P.C. If the interpretation as laid by learned counsel for the petitioner is acceded to, it would amount the exercise of the appellate and revisional jurisdiction which has never been provided by the above provisions of law.
Moreso, where the order is deliberate and represented the intention of the Court, it cannot be said to be mistaken. The error pointed out on behalf of the petitioner is not unconscious act or inadvertent mistake or omission. As mentioned above, it was challenged in the first round of litigation but the petitioner failed to take it up to its logical conclusion.
14.While answering similar question, the august Supreme Court in the case titled Baqar Vs. Muhammad Rafique and others (2003 SCM R 1401) held as under: "There is a lot of difference between an arithmetic mistake or an error arising from accidental slip or omission, on the one hand and an omission arising out of contentious nature of dispute between the parties. Whenever the correction under Section 152 CPC is referable to a point which is contentious in nature between the parties, the provisions of Section 152 C.P.C. cannot be invoked."
It has further been held that "When a decision depends upon consideration of arguable questions of law, the construction of documents, the determination of rights in view of record, such determination cannot be made by a Court exercising jurisdiction under Section 152 C.P.C."
15.In view of above, I am of the view that the learned appellate Court has rightly turned down the application of the petitioner under Section 152 C.P.C. There is no illegality or material irregularity in the impugned judgment which is maintained and the instant revision petition devoid of force is hereby dismissed, leaving the parties to bear their own costs.