M. TABASSUM AFTAB ALVI, J. --- The supra titled revision petition has been directed against the impugned order dated 15.01.2008, passed by the learned Additional District Judge, Muzaffarabad, whereby an application for correction of judgment & decree dated 23.08.2007, pertaining to description of landed property, was allowed.
2. Precise facts giving rise to the instant revision petition are that the respondent herein filed a suit for specific performance of agreement to sell dated 27.09.2005 regarding land bearing Khewat No. 99, survey No. 1430, size 46 x 30, measuring 5 marlas, situated in Village Gojra before District Judge, Muzaffarabad on 28.11.2006, which was made over to Additional District Judge, Muzaffarabad for hearing and disposal under law on 20.12.2006. It was claimed by the respondent-plaintiff that suit land was sold to him by the petitioner-defendant subject to payment of Rs. 1,75,000/-, out of which he received a sum of Rs. 63000/- and executed an agreement to sell dated 27.09.2005 who also handed over peaceful possession thereof to the respondent in presence of witnesses. It was further averred that due to devastated earthquake of 2005 the respondent shifted to his native village and after restoration of life he returned back to Muzaffarabad city and asked to the petitioner for transfer of disputed land who declined to do so, hence, he was constrained to file suit for specific performance of contract. The petitioner-defendant in written statement although admitted receipt of the above amount from the respondent-plaintiff, however, pleaded that he received the same as loan, which was liable to be returned. Both the parties led evidence in support of their respective claims and after hearing the learned Additional District Judge, Muzaffarabad passed judgment and decree in favour of the respondent-plaintiff on 23.08.2007. The petitioner urged in revision petition that the learned Additional District Judge, Muzaffarabad decreed the suit without relying upon revenue record, although later on the respondent obtained the same for registration of sale- deed, through Nazir of the Court. It was also alleged that the respondent against law and rules filed an application for correction of judgment & decree dated 23.08.2007 in the Court below on 08.12.2007, which was not maintainable. The above-mentioned application was objected to by the petitioner through detailed objections dated 03.01.2009. The learned Trial Court, however, after hearing accepted the application while allowing correction in judgment & decree dated 23.08.2007 vide impugned order dated 15.01.2008. Feeling aggrieved from the above order, the petitioner was constrained to file the instant revision petition before this Court on 19.02.2008.
3. The learned counsel for the petitioner, Sardar K.D. Khan, Advocate, while reiterating the grounds of revision petition submitted that under Sections 152 & 153 of the Code of Civil Procedure, only clerical mistake and omission could be corrected, however, the Court below travelled beyond its jurisdiction and changed the description of the suit land by illegal exercise of powers. The learned counsel emphasized that the Trial Court substituted survey No. 1427 instead of 1430 without any documentary evidence, therefore, the impugned order was passed contrary to law. The learned counsel pressed into service that in the original document i.e. Agreement to sell dated 27.09.2005 survey No. 1430 was still inserted without any correction and on the basis of the above agreement to sell pleadings of the parties were developed, hence, without correction of the said agreement judgment & decree could not be modified. The learned counsel also submitted, that in his estimation, the agreement to sell was a void contract, hence, not enforceable under law, therefore, this Court while exercising revisional jurisdiction under Section 115 of Civil Procedure Code, coupled with powers of superintend and control as visualized under Section 46 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 apart from setting aside the impugned order dated 15.01.2008 the judgment & decree dated 23.08.2007 may also be quashed.
In support of his contentions the learned counsel for the petitioner referred to and relied upon the following case-law:-
(i) Fazal Din v. Rehabilitation Commissioner' (Lands) and 2 others (1987 CLC 1053) and
(ii) Pakistan Day Memorial Committee & another v. Mian Abdul Khaliq & Co., Lahore (1987 CLC 1169).
4. The learned counsel for the respondent, Mr. Tahir Aziz Khan, Advocate, while controverting the arguments of the learned counsel for the petitioner , filed written arguments wherein it was submitted that the petitioner admitted execution of sale agreement in which description of the suit land was inserted by him as survey No. 1430 which was later on transpired as survey No. 1427, however, boundaries and areas of the land as inserted in agreement were same. The petitioner even not controverted the above survey number in written statement and suit land was admitted as survey No. 1430 which admission was binding on the petitioner. The learned counsel has submitted following authorities in support of his above contention:---
(i) Muhammad Yasin & 8 others v. Abdul Hameed & 21 others (2010 CLC 230).
(ii) Anees A. Sheikh v. Col. (Retd) Ghulam Masood Qureshi (2005 SCMR 977) and
(iii) Muhammad Saleem v. Azad Government and 4 others (2006 SCR 88).
It was next urged on behalf of the respondent that at the time of registration of sale-deed it was disclosed that survey number of suit land was 1427 instead of 1430, hence, only course of law to meet such eventuality was to move an application for correction of judgment & decree. In the given circumstances the application for correction was rightly moved alongwith revenue record, hence, no illegality was committed by the Trial Court in the impugned order. It was further submitted that mistake to the extent of survey number was occurred due to error of the petitioner committed by him in sale-agreement. The petitioner even did not raise any objection regarding wrong description of property in the written statement, therefore, as per law, Court below rightly rectified the bona fide mistake. In support of the above contention following case-law was cited:-- -
(i) Piran Ditta v. Fazal Nabi (PLD 1992 SC (AJ&K) 1), and
(ii) Mst. Miran v. Mir Hussain and another (1980 CLC 549).
PLD 1992 SC (AJ&K) 1 at page 6 it was observed as under:--- "It is evident from the case-law cited above that there is no restriction on the power of the Court under Sections 151 and 152 of the Code of Civil Procedure to correct the mistake in the plaint, judgment or decree, if the same occurs due to bona fide mistake or oversight and the party is not found to be guilty of gross negligence. The mere fact that the appellant sought correction after a lapse of a period of nine years is not a valid ground in the instant case to refuse him the relief sought because, as has been pointed out, he had no knowledge about the aforesaid mistake before the year 1979 and the mistake had also occurred in the plaint due to wrong entry in the register, maintained in the office of the Sub-Registrar, for entering the sale-deeds. It may also be pointed out that in the instant case the respondent-vendee did not raise the objection regarding the wrong description of property in the written statement and it is also not denied that he had also received the pre-emption money as was directed by the Court in the decree-sheet."
1980 CLC 549); at page 550 it was held as under:--- "The learned Sub-Judge was mistaken in appreciation of the circumstances of the case. The area of the land in suit was very well described in the plaint' and as such it cannot be said that by writing a wrong survey number for the land in suit due to clerical as well as arithmetical mistake committed by the office of the Sub-Registrar, the land sold by Ghulam Nabi brother of the plaintiff:pre-emptor was not pre-empted by the latter. There is not denial to the fact that land sold by Ghulam Nabi in favour of Mir Hussain was pre-empted. Thus there was no question of limitation having cropped up as was wrongly . Apprehended by the Trial Court. It was just a clerical as well as arithmetical mistake which could be rectified at any stage of the case by the petitioner by way of an amendment."
It was next stated in the written arguments that procedural provisions of law are introduced for the advancement of justice and not to stifle justice by hanging it with ropes of technicalities which deprived rightful persons from their rights. In support of the above contention following case-law was referred:-
(i) Mst. Bundi Begum v. Munshi Khan & others (PLD 2004 SC 154) and
(ii) Fazalur Rehman v. Muhammad Ilyas & 2 others (1991 MLD 2178).
It was next urged on behalf of the respondent that the petitioner unlawfully under the garb of instant revision petition tried to assail judgment & decree dated 27.08.2007 which have already obtained finality under law. It was emphasized that under Order XLI of Civil Procedure Code, the petitioner could prefer an appeal within prescribed period of limitation, however, after elapsing period of about 6 months the judgment & decree could not be challenged while adhering inherent powers of this Court, which could only be invoked when no other remedy was available to the litigants, therefore, revisional jurisdiction cannot be exercised to give benefit as the case of the petitioner was hit by law of limitation. In support of the above contention following case-law was referred:--
(i) AJ&K University v. Mir Alam & 43 others (2002 SCR 292) and
(ii) Mir Zaman Abbasi & 7 others v. AJK Government & 2 others (1997 CLC 1722).
5. After hearing the learned counsel for the petitioner at great length and examining written arguments filed on behalf of the respondent I have perused the contents of revision petition and examined record made available with my utmost care.
6. A glance perusal of record reveals that the impugned judgment & decree were passed by the learned Additional District Judge, Muzaffarabad in favour of the respondent-plaintiff on 23.08.2007.
After expiry of period of limitation the respondent, initiated proceedings for execution of sale-deed through Nazar of the Court when it transpired from revenue recorded that survey number of the disputed land was in fact 1427 instead of 1430. The respondent when confronted with the given, eventuality moved an application for correction of the judgment & decree dated 23.08.2007. After seeking, objections on the application from the petitioner the same was allowed vide impugned order dated 15.01.2008. The petitioner while challenging vires of the impugned order dated 15.01.2008 also challenged judgment & decree dated 23.08.2007 through the instant revision petition and craved that while exercising inherent powers of this Court the judgment and decree may also be quashed. Admittedly against the impugned judgment & decree dated 23.08.2007 the remedy of appeal was available to the petitioner as visualized by Order XLI of Civil Procedure Code.
The petitioner failed to prefer an appeal who had been sleeping over his so-called rights and when the period for lodging appeal was elapsed and valuable right had accrued in favour of the respondent-plaintiff, the petitioner craved through the instant revision petition for setting aside the basic judgment and decree who failed to point out any reason in revision petition whatsoever for not filing appeal Within prescribed period of limitation. There is no cavil with the proposition of law that under Section 46 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 coupled with Section 35 of The Azad Jammu and Kashmir Courts and Laws Code, 1949 for doing complete justice powers of superintendent and control can be exercised where the interest of justice so demand.
However, since in the instant case the remedy of appeal was available to the petitioner who failed to prefer the same that too without any lawful reason, hence, question of exercising inherent powers does not arise in the present case. Even otherwise, no any gross injustice was committed in the case by the Trial Court and in fact the suit of the respondent-plaintiff was decreed according to admission of the petitioner in cross-examination regarding agreement to sell dated 27.09.2005 which was admittedly executed by him whereby he had sold the suit land subject to payment of Rs. 1,75,000/- out of which he had received a sum of Rs. 63,000/-, therefore, interest of justice demand to decline to exercise inherent powers in favour of the petitioner and I ordered accordingly.
7. The basic document which remained bone of litigation between the parties was exhibit "PA" i.e. Agreement to sell dated 27.09.2005. The petitioner, himself incorporated survey No. 1430 in the above-mentioned document. After failure of the petitioner to act upon the same, the respondent was constrained to file suit for specific performance of contract before the Trial Court on 28.11.2006.
The petitioner in the above-mentioned suit filed written statement on 25.01.2007, in which he never pleaded that survey number of the suit land was 1427, hence, there was no occasion to the respondent for knowing that actual survey of disputed land was 1427 instead of 1430. To prove the above document i.e. Agreement to sell respondent-plaintiff produced Abdul Waheed Stamp Vender, Waqar Ahmed marginal witness and Tahir Mehmood petition writer. The perusal of evidence of the above PWs reveals that all of them categorically supported the claim of the respondent in clear terms. However, both the witnesses of the petitioner failed to support his claim. Even the petitioner-defendant, who himself appeared in witness-box, admitted in cross-examination that he was owner of 3 Kanals land out of Khewat No. 99 comprising survey No. 1430 in village Gojra. It was stated by him that he had gone himself in the house of the respondent-plaintiff for obtaining amount of Rs. 30,000/- which was firstly received by him as a debt. The petitioner further admitted that the plaintiff was informed by him with regard to selling the land due to his personal needs. The petitioner also admitted the contents of exhibit "PA", alongwith his signature and thumb-impression affixed, in presence of petition writer, as correct besides cost of land as Rs. 1,75,000/-. A contemplate perusal of cross-examination of the petitioner reveals that he himself admitted the claim of the respondent-plaintiff, hence, the Trial Court had rightly decreed the suit in favour of the respondent-plaintiff vide judgment and decree dated 23.08.2007. It appears that after expiry of period of limitation prescribed for filing appeal, the respondent initiated proceedings for execution of sale-deed, through Nazir of the Court wan it transpired that survey number of suit land was 1427 instead of 1430. In the given circumstances, only legal course available to the respondent was to move an application for correction of judgment and decree before the concerned Court, which was rightly done, therefore, no any illegality was committed by the Trial Court while passing the impugned order.
8. The powers pertaining to amendment of judgments, decrees or orders of the Courts of law are postulated under Sections 152 and 153 of Civil Procedure Code which are reproduced as under:--- "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 omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
"153 General Power to amend. The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit: and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."
A bare reading of Section 152 makes it clear that it relates to correction of errors etcetera in judgments, decrees or orders. Section 153 of Civil Procedure Code, however, empowers a Court to amend any defect or error in any proceedings in a suit. The first part of the above Section is discretionary whereas later part is mandatory in nature. The purpose of the above-mentioned statutory law is that by enabling amendment of the proceedings, multiplicity of litigation may be avoided. The powers can be exercised at any time even after CL.R. passing the judgment and decree. Under this Section, incorrect description of a party and property even in the pleadings can be corrected. The respondent was not guilty of gross negligence but description of property was given by him in plaint due to mistake of the petitioner in the agreement to sell dated 27.09.2005. The perusal of the agreement to sell exhibit 'PA' also reveals that the petitioner described the disputed land in boundaries and areas which were not controverted by him, therefore, error of survey number was in fact arithmetical mistake. To refuse solicited relief to the respondent will tantamount to grant premium to the petitioner of his wrong prima facie consisting of mens rea and malice. Therefore, I am of the considered view that there was no restriction on the powers of the Court to correct the mistake under Sections 152 and 153 of Civil Procedure Code.
Identical point came under consideration before the apex Court in case titled Piran Ditta v. Fazal Nabi [PLD 1992 SC (AJ&K)
11. At page 6 of the report, it was held as under:--- "It is evident from the case-law cited above that there is no restriction on the power of the Court under Sections 151 and 152 of the Code of Civil Procedure to correct the mistake in the plaint, judgment or decree, if the same occurs due to bona fide mistake or oversight and the. Party is not found to be guilty of gross negligence. The mere fact that the appellant sought correction after a lapse of a period of nine years is not a valid ground in the instant case to refuse him the relief sought because, as has been pointed out, he had not knowledge about the aforesaid mistake before the year 1979 and the mistake had also occurred in the plaint due to wrong entry in the register, maintained in the office of the Sub-Registrar, for entering the sale-deeds. It may also be pointed out that in the instant case the respondent-vendee did not raise the objection regarding the wrong description of property in the written statement and it is also not denied that he had also received the pre-emption money as was directed by the Court in the decree-sheet."
Similar view was also taken in case titled Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others [1991 SCMR 24511
9. All the rules of procedural law have been enacted for the purpose of administration of justice.
The basic purpose of all the rules is to serve the administration of justice and they should be subordinate to it. It is settled principle of jurisprudence that procedural law should not be construed strictly so as to put the parties to undue inconvenience because the principal object behind all legal formalities is to safeguard the paramount interest of justice. No one should be defeated merely on the basis of technicalities, unless offering insurmountable hurdles. Legal technicalities should not be allowed to stand in the way of justice, which might lead to unsettlement and uncertainty of law.
10. The contention of the learned counsel for the petitioner that due to wrong description of property in the plaint followed by judgment and decree dated 23.08.2007 only course available to the respondent was either to file fresh suit for correction of original agreement to sell dated 27.09.2005 or to lodge an F.I.R. Against the petitioner on the ground of fraud, is misconceived for the reasons mentioned here in above and is hereby repelled.
11. As observed earlier, the suit filed by the respondent was decreed in his favour on merit by the Trial Court after adopting due process of law. By commanding another remedy in getting his grievance is not fit due to peculiar circumstances of the instant case as such-like direction would defeat the concept of administration of justice.
For the reasons enlisted above, finding no substance in the instant revision petition, the same is hereby dismissed with costs.
Civil revision .