JUDGIVENT ' CH. MUHAMMAD IBRAHIM ZIA, J.--- This appeal by leave of the Court has arisen out of the order passed by the High Court dated 03.08.2012, whereby, the learned High Court has dismissed the revision petition filed by the appellant.
2. Gist of the facts as narrated is that on 28.11.2006, the respondent filed a suit for specific performance of agreement-to-sell dated 27.9.2005 regarding the land comprising khewat No.99, survey No.1430, (having size of 46x30), measuring 5 marlas, situated at village Gojra before District Judge, Muzaffarabad. The suit was made over to Additional District Judge, Muzaffarabad for hearing and disposal under law vide order dated 20.12.2006. The plaintiff-respondent averred in the suit that the land was sold to him by the defendant-appellant subject to payment of Rs.1,75,000/- out of which he received a sum of Rs.63,000/-, he executed an agreement-to-sell dated 27.9.2005 and also handed over a peaceful possession to the plaintiff-respondent in presence of witnesses. It is further averred in the suit that due to devastating earthquake of October, 2005, the plaintiff- respondent shifted to his native village. After restoration of normal life, he returned to Muzafarabad city and asked the defendant-appellant for transfer of disputed land. The defendant-appellant declined to do so, hence, the plaintiff-respondent was constrained to file a suit for specific performance of the agreement-to-sell. The defendant-appellant although in his written statement has admitted the receipt of aforementioned amount from the plaintiff-respondent, however, he pleaded that the same was borrowed as a loan which was liable to be returned. The learned Additional District Judge, Muzaffarabad, after necessary proceedings decreed the suit of the plaintiff-respondent vide judgment and decree dated 23.8.2007.
3. On 8.12.2007, the plaintiff-respondent filed an application for correction in the judgment and decree of trial Court dated 23.8.2007. The application was contested by the defendant-appellant by filing objections on 3.1.2009. The learned Additional District Judge, after necessary proceedings vide order dated 15.1.2008 allowed the application for correction in the judgment and decree dated 23.8.2007 as solicited by the plaintiff-respondent. Feeling aggrieved, the defendant-appellant challenged the order dated 15.1.2008 through a revision petition in the High Court numerous grounds. The learned High Court, after necessary proceedings, dismissed the revision petition through the impugned judgment, hence, this appeal.
4. During the course of arguments, it was found that both the Courts below have over-sighted the factual determination regarding the demarcation of the suit property, hence, spot inspection was deemed necessary for doing complete justice. This Court vide order dated 4.11.2013 appointed a commission for spot inspection who submitted his report on 30.11.2013. After submission of the report, the learned counsel for the parties were heard. The learned counsel for the parties have no objection regarding the on-spot position described in the report, thus, the report is admitted without any objection of the parties.
5. Sardar Karam Dad Khan Advocate, the learned counsel for the appellant, argued the case at some length. He submitted that the Courts below have failed to apply judicial mind and passed orders in a mechanical manner which is against the principles of administration of justice. He further submitted that valuable right has been created in favour of the appellant, therefore, he cannot be deprived of the same by subsequent amendment introduced by the trial Court. It is further argued that the judgment and decree passed by the trial Court is defective in nature, hence, any amendment as sought by the plaintiff-respondent is not permissible under law. He further contended that as the trial Court has allowed the application for correction in vacuum that is why this Court has appointed commission for spot inspection, thus, the impugned order is against the principle of administration of justice and statutory provisions, therefore, the same is not sustainable and liable to be recalled by accepting this appeal.
6. Conversely, Mr. Tahir Aziz Khan Advocate, the learned counsel for the plaintiff-respondent strongly opposed the arguments advanced on behalf of the appellant and submitted that under the provisions of Civil Procedure Code, the Courts are vested with vast powers to correct any mis- description of any property or party or any other clerical or arithmetical mistake occurred in the pleadings of the parties or the judgment and decree of the Court. He further submitted that the statutory provisions of Civil Procedure Code, especially sections 151, 152 and 153, can make this legal proposition clear and no other deliberation is required. He further submitted that the decree has attained finality as the defendant-appellant has not challenged the findings recorded against him, the judgment Sand decree passed by the trial Court. The only question to be determined is regarding the description of property according to the evidence brought on record by the parties.
He further submitted that according to the modern era's trend of the superior Courts, administration of justice in real sense is required and technical knock outs and technicalities are discouraged, therefore, this appeal has no substance and is liable to be dismissed.
7. We have considered the arguments of the learned counsel for the parties and also examined the record made available. According to the facts of this case, the learned counsel for the respondent rightly pointed out that the decree on merits has attained finality as the findings recorded by the trial Court have not been challenged by the defendant-appellant, therefore, the discussion on merits of the case or reopening of the same at this stage is not required.
8. The only controversy among the parties which require attention of this Court in the appeal is correction of description of the suit property in the pleadings, judgment and decree of the trial Court. The suit is based upon written deed i.e. Agreement-to-sell the execution of which is admitted by both the parties and is not disputed. In this deed, identification of the property with specified boundaries is clearly mentioned. The only dispute is regarding the correction of survey number. In our opinion, relevant statutory provisions dealing with this legal proposition are sections 152 and 153 of the Civil Procedure Code, which reads as follows:- "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." (underlining is ours)
Under these statutory provisions, the Court is vested with the powers to correct any clerical or arithmetical mistake in the judgment, decree or order arising therein from any accidental slip or omission, at any time even on its own motion or application of the parties. Under the provision of section 153, C.P.C., the purpose of amendments has been clearly mentioned that such amendment should be made for the purpose of determining the real issue raised by or depending on such proceedings.
9. It is now well settled principle of law that under these statutory provisions, the amendment of misdescription of property or parties can be made. As in this case, in the written deed of agreement-to-sell, the demarcation and boundaries of the suit property are clearly mentioned.
The parties in their oral and documentary evidence have not disputed the boundaries of the suit property. The only dispute is regarding survey number. No doubt, the Court is empowered to correct such discrepancy but in our opinion, for allowing such amendment, the order should be based upon appreciation of some material and not in vacuum.
10. As the hereinabove mentioned statutory provision also speaks that such amendment should be made for the purpose of determining the real question or issue, therefore, for determination of real question or such issue, the Court should first have to be satisfied to allow correction on the basis of appraisal of the material. In this case, for ascertainment of survey number of the suit property as indentified by the boundaries in the agreement-to-sell, the spot inspection was necessary.
Therefore, in such like eventualities, the Courts, if they deem necessary, should have to exercise the powers for determination of the on spot position to avoid any injustice caused to any of the parties or occurring any other mistake. The apex Court of Pakistan while dealing with the powers of the Courts under the provisions of Civil Procedure Code has observed that no valuable right can accrue to the parties on the basis of bona-fide mistake, hence, question of infringement of right does not arise. Therefore, the argument of the learned counsel for the appellant that valuable right has been created in favour of the appellant has no substance. The case reported as Muhammad Anwar and 8 others v. Muhammad Ashraf [PLD 2001 Supreme Court 209], provides ample guidance; the concluding para of the same is reproduced as under:- "4. We have carefully examined the view-point as canvassed by Kh. Muhammad Farooq, learned Advocate Supreme Court on behalf of petitioners and perused the impugned judgment. We have also examined the entire record with the assistance of learned counsel. No doubt that the name of co-vendee "Umer Hayat" has been mentioned as "Muhammad Hayat" but it hardly makes any difference for the reason that there is no mistake whatsoever regarding the name of parentage. It reflects from the scrutiny of record that Mst. Jallan, their guardian ad litem, had two sons with the names of Muhammad Hayat and Qamar Abbas against whom suit had been filed which aspect lends support to the fact that factually Umar Hayat was intended to be impleaded as a party. In our considered view non-mentioning of the correct name, at the best can be considered as a lapse or omission and amounts to misdescription of a party and is always subject to correction which can be made by invoking the provisions as contained in section 153, C.P.C. And technicalities should not be allowed to stand in the way of justice because procedure ought not to be used for purpose of defeating justice and technicalities of procedure have to be avoided. "Independent of express jurisdiction conferred on Court by section 153 of Civil P. C., the Court also possessed inherent powers for allowing an incorrect description of a party in the pleading to be corrected.
Reference with advantage can be had to the ruling in AIR 1961 Pat. 480; PLD 1979 Pesh. 31". Safiullah Khan v. P.I.A. Officers Cooperating Housing Society 1992 MLD 967. It was worth mentioning that such bona fide mistake or misdescription can be rectified at any time and no time limit whatsoever has been specified under section 153, C.P.C. In this regard we are fortified by the dictum laid down in case titled Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCMR 824. Besides that, in such-like eventualities the averment made in the plaint and relief sought for can also render substantial assistance to remove any confusion regarding misdescription of the party. A bare perusal of the plaint and relief prayed for would lead to draw the only irresistible conclusion that the suit was filed against two real brothers and through their guardian at litem namely Mst. Jallan and due to an inadvertent omission or bona fide mistake the name of Umer Hayat has been mentioned as Muhammad Hayat and correction whereof by the Court, by no stretch of imagination can be considered as prejudicial. In our considered opinion the "valuable rights" could not be created on the basis of a bona fide mistake and hence, the question of its infringement does not arise as pressed time and again by the learned counsel again for the petitioners. The respondents cannot be knocked out on the ground of partial pre-emption as a bona-fide mistake does not furnish any base for the formulation of such an extreme view as canvassed by the learned counsel for the petitioners. It is worth-mentioning here at this juncture that the provisions as contained in Order I, rule 10, C.P.C. And Order IV, rule 17, C.P.C. Have no nexus with the controversy in question and only the relevant provisions as contained in section 153, C.P.C. Could be invoked to clarify such an anomalous condition which have rightly been invoked for rectifying the error as mentioned hereinabove. We may point out that the suit has not been instituted against a wrong person but a right person whose correct name could not be mentioned due to an inadvertent omission."
(underlining is ours)
' Same like in another case reported as Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others, [1991 SCMR 2451], the apex Court has enunciated the principle of law that where any claim is founded on the deed and an incorrect specification of property is detected, correction of the same to bring it in conformity with the deed should be allowed. Relevant para 6 of the judgment reads as under:- "6. After hearing the learned counsel for the parties at length and also getting their arguments supplemented by written notes, we find that one aspect of the case remained unattended throughout. It was that there was a principle of incorporation available which could rescue the plaintiffs. The whole claim was founded on a written agreement. That agreement had been mentioned in the plaint as the basis of title and foundation of rights. The specification or description of the property was evidently picked up from it. A copy of the agreement had accompanied the plaint. The defendants/judgment-debtors had as much notice of that document as of the plaint. None pointed out the discrepancy between the two. The Court too did not detect it.
This Court has already held in Amir Abdullah Khan through Legal Heirs and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972 that where a claim is founded on a deed and the plaint incorporates by reference the contents of such deed, the incorrect specification or incorrect description of the particulars of the property can always be resolved and corrected by reference to the deed so incorporated and not beyond. The basic title deed is that accompanying document of which the parties had full notice. The contest is deemed to centre round that document as stood incorporated in the plaint. Unless the discrepancy in the two is detected by the parties to the contest or by the Court and remains unattended, correction of the incorporating document to bring it in conformity with the incorporated document cannot be refused. Whatever the stage when the discrepancy is detected correction of it can take place by resort to section 152, C.P.C."
(underlining is ours)
In view of the principle of law laid down by the apex Court of Pakistan, the amendment prayed by the respondent-plaintiff has rightly been granted which cannot be recalled. However, as we have already observed that while exercising such powers, the amendments should not be granted in vacuum rather there should be some material to satisfy the Court for determination of the real controversy.
With these observations, the appeal stands disposed off with no order as to costs.