' TANZILUR REHMAN, J.-On the conclusion of the hearing of the ahove appeal we dismised it by or oral order dated 27th April, 19110: Now we proceed to record or reasons for the same.
2. This L. P. A. Is directed against the judgment dated 9th August. 1971 passed by a learned Single Judge of this Court in Constitutional Petition No, 601 of 1970. The facts of the case are that one deceased Mushiruddin Ahmed, Siddiqi, a claimant displaced person, hereinafter referred to as "the transferee was issued by the Settlement Department, Karachi. An Appendix in respect of the transfer of a Shop No, 111-A, 110/52-RB 6/111 situated at Aram Bagh Quarters, Karachi, in his possession, on C. S. Form. On 25th April, 1960, the said transferee entered into an agreement of association with late Dr. Lutfur Rehman (hereinafter referred to as "the Associate"), as the said transferee did not have the requisite funds to pay the transfer price of the said shop. The said agreement as accepted and acted upon by the Settlement Department inasmuch as the amount of transfer price of the said shop was adjusted from the Compensation Book of the said Associate (late Dr. L. R. Khan) and on 17th May, 1960 the P. T. O. Was issued to the, transferee.
3. Later on, the transferee filed an application in September, 1961 for cancellation of the said agreement of association alleging that the. Associate was harassing him. The Associate appeared and opposed. The said application but it was dismissed for non-prosecution. In or about 1964, the transferee died. Two years after the death of the transferee his son Dr. Salimuddin Ahmed Sid diqui (hereinafter called "the predecessor-in-title of the present appellants) made an application dated 29th March, 1966 to the Additional Settlement Commissioner seeking permission tog: file another agreement of association, as the Associate (Dr. L, R. Khan) was not coming forward to submit his Compensation Book for the purpose of the issuance of a permanent transfer deed in his favour.
The said Associate appeared before the Settlement authorities and again objected to the said cancellation. The Additional Settlement Commissioners an 6th May, 1966, passed the following order :- "An agreement of Association. Which has already been admitted and acted upon cannot be cancelled at the request of one of the parties. The request can be considered by the D. S. C. Only when made by both the parties."
4. On the same day i. e. 6th May, 1966, the Associate was also issued a notice by the Deputy Settlement Commissioner to produce his Compensation Book in connection with the finalisation of the transfer documents. The said Associate replied by his letter dated 12th May, 1980 that pursuant to the General Instructions of the Chief Settlement Commissioner, he had submitted his Compensation Book and it must be available with the Department. He also gave full particulars of the Compensation Book in the said reply given by him to the Deputy Settlement Commissioner.
5. On or about March, 1967, the appellant's predecessor-in-title (Dr. Salimuddin) filed another application to the Deputy Settlement Commissioner for accepting the second agreement of association requesting that the balance of transfer price may be adjusted from the Compensation Book held by Mst. Muhammadi Begum (hereinafter referred to as "the Second Associate"). In view of the fact that the entire transfer 'price had, in fact, already been adjusted from the Compensation Book of the Associate, he clarified in this Application that "I hereby declare that this will not affect the original Agreement of Association with Dr. Lutfur Rehman Khan." The Departmental noting in respect of this application being quite relevant is reproduced below. The first noting reads : - "Kindly refer to the learned A.S.R.C.'s order dated 25th June, 1966 to the effect that the agreement of Association which has already been admitted and acted upon cannot be cancelled at the request of one of the parties. Now the applicant has submitted the above-mentioned application stating that he is making the payment of the transfer price over and above the original adjustment. He has further declared that this will not affect the original agreement of association with Dr. L. R. Khan."
' The Deputy Settlement Commissioner then made the following order dated 31st March 1967 : "Additional S. C. (J) may kindly advise in the matter whether without revoking previous agreement of Association, the fresh agreement can be acted upon."
' The Additional Settlement Commissioner, then, accepted the petitioners' request by his order dated 3rd May, 1967 in these words:- "1 don't think there should be any objection in acting upon the second agreement of Association, if it was filed in time, at the risk and responsibility of the transferee, as he has not sought the.
Cancellation of the previous Agreement of Association."
' Thereafter, on or about 14th December, 1967 the P. T. D. Of the spop in question was issued to the predecessor-in-title of the appellants, mentioning only the adjustment of transfer price from the Compensation Book under the second agreement with Muhammadi Begum only. This all happened behind the back of the Associate (Dr. L. R. Khan), who had in the meantime expired.
6. It appears that in or about 1969 the respondents came to know about the omission of the Settlement Department to mention the fact of adjustment from the Compensation Book of their father late Dr. L. R. Khan. The widow of late Dr. L. R. Khan who has also died in the meantime and the respondents, therefore, made an application to the Additional Settlement Commissioner pointing out that the agreement between the Associate and the transferee had not been set aside and thus the fact of the transfer price having been adjusted from his Compensation Book be mentioned in the P. T. D. Issued in favour of the transferee. The case, then, came up before the Deputy Settlement Commissioner, who, considering all the facts and circumstances of the case, held by his order dated 13th October, 1969 that since the Additional Settlement Commissioner accepted the subsequent agreement of association at the risk dresponsibility of the transferee, and no such order was passed as to cancel the earlier transaction or the refund of amount already adjusted from the Compensation Book of Dr. L. R. Khan, the name of late Dr. L. R. Khan be mentioned in the transfer documents." This order was challenged by the appellants' predecessor-in-title (Dr. Saleemuddin Ahmed Siddiqui) in an appeal before the Additional Settlement Commissioner. Who agreed with the view taken by the learned Deputy Settlement Commissioner. He, then, challenged this order in Revision Application to the Settlement Commissioner (Judicial) Karachi, but again met with failure. He, then, filed a petition under Article 98 of the Constitution of Pakistan, 1962, in this Court which was dismissed by the learned Single Judge of this Court, Dr. Justice Abdul Kadir Shaikh, as he then was, by his judgment dated 9th August, 1971, which is impugned here in this appeal.
7. Mr. Muhammad Idris Qureshi, the learned counsel for the appellants has advanced three-fold contentions, namely :--
(i) the first agreement of association dated 25th April, 1960 entered into between the deceased Mashiruddin Ahmed Siddiqui (the transferee) and late Dr. Lutfur Rehman Khan (the Associate) was not finally acted upon within the meaning of law and, therefore, it was rightly substituted by the second Agreement of Association dated 31st December, 1966, entered into between Dr. Salimuddin Siddiqui son of Musbeeruddin Ahmed Siddiqui and Mst. Muhammadi Begum ;
(ii) the order dated 13th October, 1969 by the Deputy Settlement Commissioner ordering to incorporate the adjustment earlier made from the Compensation Book of late Dr. L. R. Khan (father of the present respondents in the appeal) in the Permanent Transfer Deed could not have been passed in exercise of his powers under section 21 (3) of the Displaced Persons (Compensation and Rehabilitation), Act 1958 and, therefore, all the subsequent orders in appeal as well as Revision are bad in law and fall down with it ; and
(iii) the respondents have no vested right in the property which is the subject-matter of dispute.
8. Dealing with the last contention first, Mr. Mirza Aftab Alam Qi2'lbash, the learned counsel for the respondents categorically stated that it has never been the case of the respondents or their father, the Associate that they claimed any right, title or interest in the property which has been transferred to late Mashiruddin Ahmed Siddiqui. In view of this clear statement of the counsel for the respondents that they claim no interest in the said property, this plea does not arise at all in the case.
9. In so far as the first contention of the learned counsel for the petitioner is concerned, he took us through several Notifications issued from time to time by the Settlement Department with regard to agreements of association. His main contention was that the adjustment of transfer price of the property in dispute could not be said to be complete and final unless the Compensation Book was checked and verified by the Settlement Department at the time of the issuance of the Parmanent Transfer Deed, which the late father of the respondents failed to produce before the Settlement Authorities when he was required to do so. The learned counsel for the appellants invited or attention to an objection Memo. Dated 18th March, 1966 (Annexure `D') issued by the Deputy Settlement Commissioner, Karachi to the successor-in-interest of the transferee whereby he was asked to appear before the Deputy Settlement Commissioner on 26th March, 1966 for removing the objections noted at serial Nos. a, b and f in conection with his application for the issuance of a P. T.
D., otherwise his case was to be consigned to record. The learned counsel for the petitioners thus submitted that this very fact of non-production of the Compensation Book by the late father of respondents (Dr. L. R. Khan) necessitated the filing of second agreement by the appellants' predecessor-in-interest in order to protect his rights in the property already transferred to him for obtaining P. T. D. And that was the reason, according to the learned counsel for the appellants that prevailed upon the Additional Settlement Commissioner for granting the request for accepting the second agreement of association.
10. Mr. Aftab Alam Qizilbash, the learned counsel for the respondents, contended that the contention advanced by the learned counsel for the appellants was incorrect both on facts and law. He took us through the record of the original case and referred to a number of documents therein. He submitted that the Agreement of Association dated 25th April 1960 alongwith the Compensation Book was submitted to the Settlement Department at one and the same time even before the issuance of the Provisional Transfer Order of the property in favour of transferee. This fact, we find, is supported by a certified copy of the application dated 16th May, 1960 submitted by Dr. Saleemuddin Siddiqui son and attorney of the transferee, late Mushiruddin Siddiqui and the certified copy of the order dated 18th May, 1960 (page 123). The entries of adjustment of transfer price were accordingly made in the Compensation Book of late Dr. L. R. Khan in 1960 and the P. T.
0. Was issued to the transferee. In fact the Objection Memo dated 26th March, 1966 relied upon by the learned counsel for the appellants itself shows that what was being asked by the Department to comply was "the production of the Compensation Book utilised for payment of transfer price and rent etc." It cannot, therefore, he argued by any stretch of imagination that the agreement of association dated 25th. April, 1960 between the transferee and the Associate was not accreted or acted upon.
11. It, however, appears from the record that the appellants' predecessor-in-title, in fact, desired to get rid of the said agreement of association and has been making attempts for the same right from 1961, to say the least, with ulterior motive. The several applications made by him in September, 1961, on 29th March 1966, 19th May 1966 and lastly on 3rd May 1967, and the various orders passed by the Deputy Settlement Commissioner and the Additional Settlement Commissioner on the said applications do clearly prove such attempts on his part. It is also apparent from these applications and orders passed thereon that the appellants' predecessor-in-title having failed to get the earlier agreement of association dated 25th April, 1960 cancelled, was successful, somehow or the other, in introducing the second agreement of association which was, however, admitted by the Additional Settlement Commissioner in addition to the first agreement of association and not in substitution or derogation thereof, as in the last application (page 143) it was not only stated that the transferee bad already got adjustment of the balance of transfer price vide C. P. No, 178336 (admittedly belonging to late L. R. Khan) but the fresh adjustment sought by him through the second agreement of association was 'over and above the original adjustment', and, further, having no way out, he had to declare in the said association that "this (second agreement) will not affect the original agreement of association with Dr. Lutfur Rahman Khan". It was under this declaration made and assurance given by the appellants' predecessor-in-title that the learned Additional Settlement Commissioner made it clear in his order dated 3rd May, 1967 that "the second agreement of association was to be brought on record, if filed in time, at the risk and responsibility of the transferee as he has not sought the cancellation of the previous agreement of association". A plain reading of this order as well as the previous orders will show that the .
Agreement of association dated 25th April, 1960 between the transferee and the associate (Dr. L. R.
Khan) was never cancelled.
12. So far as the non-production of the compensation Book by late L. R. Khan at the time of issuance of P. T. D. Is concerned it was reasonably explained in his letter dated 12th May, 1966 addressed to the Deputy Settlement Commissioner in reply to his notice dated 6th May, 1966 that the desired Compensation Book, in response to a general requisition by the Chief Settlement Commissioner, had been submitted to the Settlement Department in 1965 for the purpose of the required authentication as done in cases of all other claimants. A photostat copy of the receipt was also annexed to the said letter. The learned counsel for the appellants, in view of this position, had to concede before us that on authentication the Compensation Book of late Dr. L. R. Khan was not found forged and was, in fact produced in the case in 1966.
13. ' The learned counsel for the appellants in support of his contention also relied upon two decisions, Haji Ghulam Hussain v. Hamid Hassan Khan (I) and Urfanullah Khan and another v. Chief Settlement Commissioner and another (2). In the first case it was held that "admittedly the normal practice is that an agreement of association is not acted upon unless it is formally accepted by the Settlement Authorities". It was further held that "even if an agreement of association has been accepted, it may be allowed to be withdrawn subsequently. If that is so, there can be no doubt about the proposition that the Settlement Authorities had the discretion not to accept a particular agreement of association, at the time when it is filed". As would appear from the facts of the case cited above, it was a case where the associate claimant wanted to withdraw his agreement of association which is not the case here. Furthermore, in that case the Compensation Book had not been filed either with the agreement of association or with the application, whereas in the case before us the Compensation Book was not only filed alongwith the agreement of association and the application, it was accepted as well as acted upon whereafter the P. T.
0. Was issued in favour of the transferee. As such the case cited above has no relevance to the facts of the present case. The other case has also no relevance to the facts and circumstances of the present case as in that case the question was of ex-transferees being in default of payment and at the same time enjoying the fruits of the property, as against the present case wherein the respondents do not claim any right or interest in the property transferred to the appellants' predecessor-in-title. {{FOOT NOTE}}
(1) P L I) 1969 Lab. 147 (2) PLD 1967 SC 428 {{FOOT NOTE}}
14. We will, therefore, hold that the agreement of association dated 25th April, 1960 was, in fact and law both acted upon and not substituted by the second agreement of association dated 31st December, 1966 of Mst. Mohammadi Begum.
15. In support of the second contention that the order dated 13th October 1969 passed by the Deputy Settlement Commissioner was beyond the purview of section 21 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1956, the learned counsel relied on the case of Shah Feroze v. Saeed A lam and others (1). In that case the power to correct clerical or arithmetical errors in a decree under section 152, Cr. P. C. Which provision is in para materia similar to section 21
(3) of the aforesaid Act, came under consideration and it was held that "A Court under section 152. C. P. C. Can only correct clerical or arithmetical mistake in judgments, decrees or orders or error arising therein from any accidential slip or omission which are apparent on the face of the record. It has no jurisdiction to correct any order or decree on any other ground even if the Court is of the opinion that it was passed under an erroneous impression as to the facts of the case. An amendment allowing the correction of the decree, which completely alters the pleadings and the judgment, can in no sense be said to be the correction of a clerical or arithmetical mistake in the judgment or the decree, or errors arising therein from any accidential slip or omission. In this case the plaintiffs had not only to ask for the correction of the decree or the judgment; they had further to pray that their own plaint be amended, so as to substitute Khasra Nos. 621, 620 and 619 for Khasra Nos. 618, 619 and 620. The Court if it allowed that had to permit the defendant to put in a fresh written statement, and then strike the issues a new, examine the witnesses de novo and give a fresh judgment, with regard to the amended case of the plaintiffs.
Surely all this cannot be done by merely taking action under section 152, C. P. C. To stretch this section to that extent would be a travesty of judgment."
16. The learned counsel for the petitioner also referred to the case of Haji Ashtiaq Ahmad v.
Bakhsaya (2) wherein the scope of section 153 of the Civil Procedure Code was considered and it was observed by Cornelius, C. J., as under "It will be seen that this section permits the correction of clerical or arithmetical mistakes in judgments and decrees etc , or of errors arising from any accidental slip or omission, but does not authorise the Court to supplement its judgments, decrees or orders by directions which require application of mind, and have the effect of taking away rights which may have otherwise accrued to one party or the other. It may be possible to achieve this result by way of review of the judgment, decree or order under question, but we express no considered opinion on this point as it does not arise in this case. The High Court was, therefore, right in thinking that the omission to specify a time limit for depositing the pre-emption money was not one which could be supplied under section 152 of the Code." {{FOOT NOTE}}
(1) P L, D 1964 Pesh. 65 (2) 1976 SCM R 420 {{FOOT NOTE}}
17. The proposition of law laid down in the above-cited cases, referred to us by the learned counsel for the petitioner, cannot be doubted but, we regret, the facts and circumstances of the case before us are quite different inasmuch as to ask for the incorporation of the factum of adjustment made from the Compensation Book of the respondents' predecessor-in-interest on the basis of his agreement of association, which bad already been accepted and acted upon by the Settlement Authorities and remained intact and unaffected even by the filing of second agreement of association, was in no way, asking for substitution of the property in dispute transferred by Settlement Department or in any way, asking for substitution of the property in dispute transferred by Settlement Department or in any way affected in taking away the rights of the appellants' predecessor-in-title, which had already accrued to and vested in him. We are, therefore, left with no doubt in or mind that non-mentioning the adjustment of the price, on the basis of the first agreement of association alongwith the second agreement of association in the Permanent Transfer Deed, was a clear case of omission and mistake on the part of the Settlement Authorities, which could be supplied to and corrected by having recourse to section 21 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
18. For the foregoing reasons, we find no merits in this appeal which is accordingly dismissed with costs.