The petitioner through instant civil revision has questioned the judgment/order dated 28.04.2010 of learned Civil Judge-V,. Peshawar whereby application of present petitioner for correction/rectification of typographical error in the agreement deed dated 5.12.2007 was dismissed.
2. Learned counsel for the petitioner submitted that when Section 31 of the Specific Relief Act permits for filing of suit for correction/rectification of any error in the compromise deed, the dismissal of his application by the Court below is against law and is liable to be set aside.
3. As against that, the learned counsel for the respondent submitted that the application of petitioner was not maintainable and was rightly dismissed by the lower Court as the impugned decree dated 17.06.2008 was obtained on the basis of this compromise deed and joint statement of the parties was also recorded by the trial Court at that time, so any correction in the deed would directly affect the decree passed on the basis of the said compromise deed.
4. Learned counsel for the parties were heard and record of the case was perused.
5. Perusal of the record would reveal that there was a dispute between the parties regarding legacy of their predecessor. Through intervention of the elders of the locality, they entered into an agreement/ compromise with the consent of all the parties. On the strength of this compromise dated 5.12.2007, a civil suit Bearing No, 202/1 was filed by the Respondent No, 1 against present petitioner and other co-owners and accordingly after recording joint statement of the parties, decree dated 17.6.2008 as prayed for was granted in their favour to the extent of respective shares of each co-owner as were determined in the compromise deed.
6. After decision of the suit, the petitioner has filed instant miscellaneous application on 21.4.2008 under Section 151 for correction of clerical mistake/error in the above said compromise deed which was accordingly replied and the trial Court ultimately dismissed the same vide impugned order dated 28.04.2010.
7. It is settled principle of law that once a lis between the parties is decided by the competent Court of law, the Court passing the decree becomes 'functm officio" and under the law, cannot reopen/reenter into the matter except review of the judgment in peculiar circumstances as provided under the relevant law. As far as provisions of Section 151 of 5 C.P.C. are concerned, those provisions of inherent jurisdiction can only be exercised by the Court during pendency of a suit, when no other appropriate and specific provision relating to the matter in question is there in the C.P.C. and this is why the jurisdiction under Section 151, C.P.C. is termed as an inherent jurisdiction of a Court. There is yet another distinction of inherent jurisdiction provided under Section 151 of Civil Procedure Code, 1908. The Civil Court in its original jurisdiction, appellate Court or the High Court can exercise such powers under Section 151 of C.P.C. but under Criminal Procedure Code, 1898, provisions of Section 561-A can only be exercised by the High Court alone and the trial Court or the appellate Court cannot exercise such jurisdiction. The Section 152 of C.P.C. deals with correction of some clerical and typographical mistakes occurring inadvertently in the judgment and decree or order apparent on the face of the record. With the exception of above eventualities, no judgment and decree or order of a Court of law can be reviewed/revisited/altered/modified. At present, we are confronted with a situation wherein both the provisions of C.P.C. i,e, Sections 151 and 152 including review cannot be invoked. Learned counsel for the petitioner during the course of his arguments referred And relied upon the judgments of Indian jurisdiction in the cases of Krishnaswa my Asari and another Defendants/appellants vs. Methulakshmi Ammal-plaintiff- respondent (A.I.R. 1928 Madras 1097), Upadrashta Latehayya-Defendant-appellant vs. Gudaparti Sitamma and others plaintiffs and defendant 2-respondents (A.I.R. 1927 Madras 1144 (1); Mahindra Narain and others--plaintiffs-appellants vs. Mt. Lal Jhari Kuer and others-defendants-respondents (A.I.R. 1931. Patna 296) and Valliakkal and another--appellants us. Karuppa Goundan-respodnent (A.I.R. 1926 Madras 1146 (1). The overall perusal of these judgments would reveal that in Krishnaswa my's case (Supra), the ratio was that when there is a question of fraud, the compromise decree can be looked into as a document within the meaning of Section 31 of Specific Relief Act, 1877. Similarly, the ratio of the case Upadrashta's (Supra) is that a mistake/error in compromise and the decree can be looked into if mutually pointed out by both the parties and then the Court with the consent of both the parties can rectify both compromise and the decree. Case of Mahindra Norain being a case of review, hence not applicable. Whereas in the case of Valliakkal and another Supra, it was held that when a mistake has been committed in drawing up a compromise petition and that mistake finds place in the decree embodying that compromise, then that can be rectified in the subsequent suit. This case would be in line with the stance of petitioner but the matter for consideration before this Court was a simple application under Section 151, C.P.C.
The Section 31 of the Specific Relief Act, 1877, for that purpose, provides for a separate suit. But strange enough that no such suit was filed under" Section 31 of Act of 1877 ibid. It was a simple application under Section 151, C.P.C. which, as discussed above, is not maintainable. Even no reference of Section 31 of the Act, 1877 ibid was made there in the application. So, it appears that the case discussed and argued above was developed in civil revision before this Court. Whatever the case may be, this will make no difference. Question of law can be considered at any stage and it is by now settled law that a party cannot be left to suffer on account of technicalities. This Court has to dispense justice between the parties ignoring the technicalities. The petitioner seeks some correction in the compromise deed and wants to correct the words written in the deed regarding payment of agreed amount of Rs,55,00,000/- as "{{URUD TEXT}} " by the words " VIA". No doubt, there is a hell of difference in the two terms and the words to be inserted would entirely change the scenario but whatever the case may be, it is for the petitioner to establish his case. The provision of Section 31 of Specific Relief Act, 1877, in its words is very much clear and for ready reference, its reproduction appears to be important: "section 31. When instrument may be rectified.---When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute a suit to have the instrument rectified; and if the Court find it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the Court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value."
A bare look of the above provision of law would make it clear that for correction of entries in a compromise on account of fraud or mutual mistake, one has to file a separate suit. As per learned counsel for petitioner that there was no case law on the subject by the superior .Courts of this country but Research on the subject made by this Court resulted in the shape of five following cases:--
1. Sahib Noor vs. Ahmad (1988 SCM R 1703);
2. Yaqoob vs. Sawali (2012 CLC 1002);
3. Suleman vs. Ataullah (2010 CLC 116);
4. Muhammad Afzal through L.Rs, vs. Muhammad Din (2007 CLC 1626); and
5. Ghulam Sarwar vs. Muhammad Ali (1984 CLC 172)
Perusal of these cases would reveal that these were simple suits filed under Section 31 of the Act of 1877. Not a single case came forward wherein a compromise deed acted upon through decree of Court was questioned. The query of this Court was that how a compromise deed acted upon by way of decree of competent Court of law could be corrected by a separate suit under Section 31 of Specific Relief Act of 1877. If such permission is granted in the given circumstances then in that case many legal problems and issues would crop up. Both the G learned counsel could not assist the Court properly on this aspect, so this issue is left open for a party who opts to file the suit under Section 31 ibid and the Court considering the matter should also be mindful of these legal questions. The possible legal questions are given below.
1. Whether such like exercise can be done at a stage when the compromise deed has been culminated into a decree;
2. Whether in presence of decree on the basis of compromise, the Court will be able to change/rectify the terms of compromise as provided under Section 31 of the Act, 1877 ibid.
3. Whether principle of res judicata will come into play?
4. What would be effect of the principle of law "functus officio" in the circumstances.
5. In view of the amendment introduced by way of Section 12 (2) of C.P.C., whether a separate suit questioning the factum of fraud for rectification of deed as provided in Section 31 of Specific Relief Act, 1877 would be competent.
All these questions are of much importance and would require brain teasing probe.
8. As far as the impugned judgment/order is concerned, that was mainly based on the reason that application under Section 151, C.P.C. was not maintainable. Again as to whether non-maintainability of an application would suffice its dismissal. In my opinion, the better course for the Court was to have returned the application so that the other remedies, if any, may not have been blocked. So, the order of the trial Court is modified only to this extent that it be read as "the application is hereby returned as not maintainable" instead of its dismissal and the original application be returned accordingly after procedural compliance.
9. So, this civil revision is disposed of in the above terms. The petitioner, if feels aggrieved and seeks the rectification referred to, then he would be at liberty to seek the proper remedy before the competent forum by keeping in, mind the questions of law so formulated.