ZAFFAR HUSSAIN MIRZA, J.-Leave to appeal was granted in this case to examine the legal question, whether the High Court in exercise of its power under section 152, C. P. C. Is competent to amend the decree based on a compromise between the parties to a suit.
2. The dispute in this case relates to agricultural land measuring 127 Kanals 12 Marlas situates in Swal Dehri, Tehsil and District Mardan. The appellant, Mst. Farosha instituted a civil suit in the Court of Senior Civil Judge, Mardan against the respondents herein for a declaration that she was full owner of a part of the aforesaid land in dispute. However, on a compromise application presented by the parties, the suit was disposed of by the learned Civil Judge on 19-5-1939. There is no dispute between the parties that according to the terms of the compromise arrived at between the parties, the appellant gave up her claim to ownership of the land in lieu of limited ownership in respect of 20 Kanals out of it, which was stipulated to remain in her possession and usufruct until her life time or until she contracted another marriage, whichever event takes place first. On the happening of these contingencies the property was to revert to the respondents who would be its absolute owners. However, in the events that happened, the learned Civil Judge before whom the compromise application was submitted while recording the compromise, failed to incorporate in his order, the factum of limited ownership conferred upon the appellant subject to the conditions mentioned above, with the result that the decree that followed the order stipulated that the appellant shall be the absolute owner of 20 Kanals out of the suit lands.
3. The present appeal arises out of a suit filed by the first respondent on 21-7-1964 against the present appellant and others seeking a declaration that he alongwith respondents Nos. 2 and 3 were the owners in possession of the entire land comprising 127 Kanals 20 Marlas and that the appellant had been wrongly entered as owner in the Revenue Record. In the plaint the first respondent had made a reference to the earlier suit filed by the appellant and the compromise reached between the parties, whereby she had relinquished all rights in the subject land in lieu of limited ownership in 20 Kanals of land. It was further averred that the land, however, continued to remain in possession of the respondents and hence they had acquired title by adverse possession.
The appellant contested the suit and raised various pleas in her defence. On the pleadings of the parties the Court framed several issues including the following issue ; "Whether the plaintiff and defendants Nos. 2 and 3 are the sole owners of the suit land?"
' It seems at the evidence stage, respondent No. 1 added a further ground in support of the relief sought in the suit, namely, that the appellant had entered into matrimony after the decree in the previous suit and thereby extinguished her rights in the land conferred upon her under the compromise. The learned trial Court, on considering the evidence produced before it, held that the appellant was in possession of the land as co-sharer alongwith respondents and rejected the case of the respondents that she had not obtained the possession under the terms of the previous compromise decree. As regards the allegation that her rights had lapsed on account of her remarriage, the finding of the trial Court was that no reliable evidence to prove this fact was produced. In view of these findings, the trial Court by its judgment dated 10-6-1965, dismissed the suit of the first respondent,
4. The first respondent, feeling aggrieved by the dismissal of his suit, took an appeal before the learned District Judge, Mardan, who affirmed the findings of the trial Court and dismissed the appeal, vide his judgment dated 22-6-1966. The first respondent then brought the matter in Second Appeal before the Peshawar High Court, Peshawar, which was heard and disposed of by the then learned Chief Justice as per the impugned judgment dated 24-5-1973. As per the observations made in the judgment of the learned Chief Justice, the matter was confined to the arguments on issue No, 5, which has been reproduced hereinabove. On a re-examination of the evidence on record, the learned Chief Justice upset the conclusion of the Courts below that the appellant had not remarried, holding that on her own admission in her evidence she had entered into another marriage with one Saeed Muhammad. Proceeding upon this finding of fact recorded by him, the learned Judge held that the appellant "must he deemed to have lost all rights and interests in the piece of land which was given to her in the earlier proceedings."
5. After reaching the conclusions of fact, the learned Chief Justice seems to have realized the legal impediment, in the way of granting relief to the first respondent, in view of the fact that the order recording the compromise and disposing of the earlier suit filed in 1939, did not provide for the limited ownership of the land by the appellant subject to reversion to the respondent, on the happening of either of the conditions, namely, the entering of a second marriage on her part or her death. In order to remove this impediment the learned Judge, purporting to invoke the powers of the Court under section 152, Civil Procedure Code, directed the rectification of the decree in order to bring it in conformity with the terms of the compromise agreement between the parties and then, on the basis of the amended decree in the previous suit, allowed the appeal and decreed the present suit of the first respondent as prayed. The appellant now seeks to challenge the decision by means of this appeal by special leave.
6. In support of this appeal, it has been contended by the learned counsel for the appellant, that the learned Chief Justice was not justified in invoking the powers under section 152, Civil Procedure Code, to order the rectification of the decree in the earlier suit of the appellant after the lapse of 34 years ignoring the intervening circumstances by suo motu assuming the powers of the Court. It was further contended that, in any case the High Court had no power to amend the decree in the circumstances of this case. On the other hand the learned counsel appearing on behalf of the respondents defended the imugned judgment and argued that there can be no question that the Court has the power under section 152, Civil Procedure Code to amend the orders and decrees, to remove, inter alia, error arising therein, from any accidential slip or omission, and this power can, in express terms of the section be exercised at "any time."
7. Now section 152, Civil Procedure Code reads as follows :- "Amendment of judgment, 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."
The plain reading of the section, leaves no doubt whatsoever, that the power conferred on the Court, if the case falls within the purview of its B provisions, can be exercised at any time and it has accordingly been held that there is no time limit for entertaining an application in that behalf.
' Also it is apparent that the power can be exercised suo motu. It has, however, been held that the fact that powers of Court under section 152, Civil Procedure Code are unlimited does not mean that they will be exercised in all cases in which an application for their exercise is made. The exercise of power will depend on the circumstances of each case. See Sher Muhammad and others v. Khuda .Bux and another , For instance, if on the basis of the uncorrected decree, a third party has acquired rights. The power, is, therefore, discretionary with the Court, although normally where the provisions of section 152, Civil Procedure Code are attracted it will order amendment, unless it is inequitable to do so.
8. The question that falls for consideration in this case, is, therefore, whether the High Court had the jurisdiction in this case to exercise the powers of amendment and whether the circumstances justified the exercise. Now, the claim of the first respondent, was admittedly founded upon the compromise between the parties, because his case, as ultimately made the basis for the decree passed in his favour was, that the appellant had, by contracting second marriage extinguished her rights in the property. The decree as it stood at the date of the present suit, did not make any such limitation on her rights. The suit was, therefore, not well-founded, as in the face of the decree in its present form, the compromise agreement, could not be looked into, muchless enforced.
Additionally since obviously the compromise agreement purported to create rights in immovable property of the value of more than Rs, 100 could not take effect by its own force unless it was registered, or the agreement of compromise was incorporated in the decree subsequently drawn up. In order to enforce the compromise agreement, therefore, the first respondent, had first to obtain the amendment of the decree. He, however, took no steps to move the competent Court for the necessary amendment of the decree. The question is, if the party himself made no move, should the Court have moved in the matter suo motu? After giving or utmost consideration we feel, that by exercising suo motu the powers under section 152, Civil Procedure Code, not so much to restore to the first respondent what was intended to be given to him under the compromise decree in the earlier suit, but in order to provide basis for his subsequent suit, which in effect deprived the appellant of her rights, without getting proper opportunity to contest the question of amendment and also the suit, on the altered basis, has deprived her of the important right of hearing enshrined in the rule of natural justice.
9. Be that as it may, there is another important aspect of this case, which was unfortunately not kept in view and seems to have escaped the attention of the learned Chief Justice, while deciding to exercise the power of amendment in these proceedings. As already observed not only there was no application made by the first respondent for correction at any stage of the proceedings, but the proceedings that culminated in the second appeal before the High Court had arisen from a cause of action, which had nothing to do with the proceedings which had ended in the decree finally passed in the suit filed in 1939. The persual of the record of this appeal indicates that even the decree purporting to be corrected, was not placed before the High Court. At any rate that decree was in no way before the High Court in- these proceedings, so as to be amenable to its jurisdiction1 for any purpose, including its amendment under section 152. The learned Chief Justice, in his judgment, after quoting from the commentary on the Civil Procedure Code by Chital, proceeded to make the following observations :- "The learned counsel for the respondent, when he was confronted with' this position and asked if he was to have any objection if the decree of the trial Court is accordingly amended, did not show his unwillingness. In this view, I would, exercising power under section 152, C. P. C. Amend the decree of the Court below so as to bring it in accord with the contents of the compromise agreement. Now by keeping the contents of the amended decree in mind, it would be altogether clear that in view of the documentary evidence brought on record the appellant had succeeded to prove his case and his suit should have been wholly decreed."
10. It appears to us that the learned Judge, somehow seems to have had the impression that the proceedings before him were the continuation of the proceedings of the suit of 1939, that is why he seems to have referred to that Court as the "Court below." In any case, the commentary of the Civil Procedure Code relied upon by the learned Judge, itself clearly showed that it is for the Court which passed the decree to amend "its own decree' when it is at variance with the judgment. It would, therefore, appear that in the first instance the matter should have been left to be moved in the same Court which passed the decree and then either party, depending upon the result of the amendment proceedings, could have brought the matter to the High Court in revision. But the previous decree could not be ordered to be corrected collaterally in another proceedings as has been done in this case. Learned counsel for the respondents has referred us to AIR 1941 Oudh 344 in support of his submissions but that case in fact, illustrates the view taken by us. In that case, when the plaintiff in the subsequent suit discovered the error that had crept in the decree passed in the earlier suit, in the description of the mortgaged property, withdrew the suit at appellate stage with liberty to bring a fresh suit, on the ground that the suit would fail on account of a formal defect.
Then, before filing the fresh suit, he filed an application under sections 151 to 153, Civil Procedure Code, praying for amendment of the plaint, judgment and decree of the earlier suit. The plaintiff did not move the appellate Court, while it was seized of the appeal from the second suit, to exercise the powers of amendment. We are, therefore, of the view that the High Court, while hearing the Second Appeal, in this case was not seized of the matter relating to any error or mistake that might have crept in the order passed in the earlier suit of 1939 and had no jurisdiction to exercise the powers under section 152, Civil Procedure Code which it purported to do.
11. In the view that we have taken the decree in the earlier suit shall stand as it was and in that case, the entire basis of the decision of the High Court disappears. As already stated, admittedly the rights arising from the earlier decree in favour of the appellant, were in no way dependent upon the contingency of her entering a second marriage and the compromise agreement cannot be enforced by itself. The claim of the first respondent, has, therefore, no foundation, and has to be rejected.
12. In the result this appeal is allowed and the decree passed by the High Court in favour of the respondents is set aside. It is, however, clarified that, it will be open to the respondents to move the competent forum for amendment of the decree in the earlier suit, if they so desire and this judgment, will be no bar to the making of such application. ' There will be no order as to costs. PLD 1961 Lab. 579 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.