1. SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 14-7-1990, whereby the appeal filed by Fazal Nabi respondent was accepted.
2. The brief facts giving rise to the present appeal are that Piran Ditta, appellant herein, filed a suit for pre-emption against Fazal Nabi respondent in the Court of Sub-Judge Bhimber on 7-4-1977, regarding the suit land comprising Survey No,323 measuring 2 Kanals 14 Marlas, situate in village Toonen Riyaki, Tehsil Bhimber which was sold by his brother Ghulam Din to the respondent. In fact the sale-deed was executed out of the land Survey No332 but inadvertently in the plaint the same was entered as Survey No,323. The respondent-defendant also failed to take any objection to the mistake regarding the description of the property in the written statement. Consequently, a pre- emption decree was passed and the consideration was also received by the vendee-respondent.
3. The judgment and decree of the trial Court in that case were challenged before the District Judge but the appeal filed by the respondent was also dismissed. Subsequently, the appellant-decree- holder came to know that instead of Survey No,332, he got the decree of Survey No,323 due to mistake. Consequently on 20-6-1979, he submitted an application to the trial Court for the amendment of the plaint and the decree-sheet. Meanwhile, the respondent also filed a declaratory suit seeking perpetual injunction to the effect that the plaintiff-decree-holder might be restrained from interfering in the land comprising Survey No,332. The trial Court consolidated the application and the suit together and ultimately accepted the application of the appellant, herein, and amended the aforesaid mistake of survey number in the plaint as well as in the decree-sheet; the declaratory suit filed by the respondent was dismissed. The respondent preferred an appeal to the Additional District Judge Bhimber which was also dismissed. The respondent then went in second appeal before the High Court which was accepted by a learned Single Judge of the High Court observing that the amendment allowed by the trial Court and confirmed by the Additional District Judge should not have been allowed because the plaintiff was guilty of negligence. The other ground which weighed with the learned Single Judge of the High Court in accepting the appeal was that as the original decree passed in favour of the appellant, herein, was appealed against by the respondent and was confirmed by the Additional District Judge, the application for amendment of the plaint and decree should have been preferred to the District Judge and not to the Sub-Judge, as was done in this case. It is against the aforesaid judgment and decree of the High Court that the present appeal has been preferred.
4. We have heard the arguments. It has been contended by Raja Muhammad Siddique, Advocate, appearing on behalf of the appellant, that the High Court has committed error in holding that the corrections made in the plaint and decree-sheet could only be made by the District Judge and not by the Sub-Judge because the decree, on appeal, was affirmed by the District Judge. He has contended that where the judgment and decree of the Court below are affirmed by the appellate Court, the correction, such as in the instant case, can rightly be made in the plaint and the decree- sheet by the trial Court because the appellate Court does not vary or amend the decree of the Court below. It was also argued that the respondent did not raise any objection in the trial Court or in the first appellate Court that the trial Court had no jurisdiction in the matter.
5. In reply the learned counsel for the respondent, Mr. Sharif Tariq, has contended that when the judgment and decree are affirmed by the appellate Court, the decree and judgment of the trial Court will merge in the judgment and the decree of the appellate Court, therefore, the trial Court had no jurisdiction to amend the plaint and the decree. He has cited a case reported as Sachindra Nath Kolya v. Probodh Chandra Sarkar AIR 1948 Cal.
126. The decree and judgment in that case were affirmed by the appellate Court on the application by the party concerned. An objection was raised that the appellate Court had no jurisdiction to amend the judgment and decree of the trial Court. The objection was overruled and it was held that when the decree and judgment of the trial Court are affirmed, the appellate Court has the jurisdiction to make amendment; however, many exceptions were enumerated in the judgment when the decrees and judgments would be affirmed by the trial Court and not by the appellate Court. It may be pointed out here that in the aforesaid case it has nowhere been held that if the application is preferred before the trial Court, the said Court would be debarred from amending its decree and judgment. At the most the proposition laid down in the aforesaid authority is that the appellate Court is also competent to amend the judgment and decree of the trial Court if it affirms the judgment and decree passed by the trial Court. The relevant observation made by the Court in that rase is as under:-- "This question was certainly not raised nor adjudicated upon in the appeal which was filed by the defendant in this Court. Be that as it may, we do not think that the question of jurisdiction is really material in the present case. The appellate judgment was passed by this Court and the plaintiffs representative has made a substantive application to this Court for amendment of the decree under section 152, Civil Procedure Code upon which a Rule, being Rule No,1525-F of 1942, has been granted. There is no dispute about the jurisdiction of this Court to correct an error or omission in the decree which it affirmed and we think that if the decision of the Court below is right, we can make an order in the same terms in Civil Rule No,1525-F of 1942."
6. The learned counsel has also cited a case reported as Nandlal Tanti v. Jagdeo Singh AIR 1%2 Pat.
36. The said case is distinguishable from the case in hand because in that case a decree-sheet passed by the. appellate Court was sought to be corrected and not that of trial Court and it was for that reason that the application was submitted before the appellate Court. 'It may be observed that in the instant case the question of amendment allowed by the trial Court was also contested by the parties in the District Court and this point was not raised before the District Judge that amendment could not be allowed by the trial Court. Thus, even if it is assumed for the sake of argument that it was the appellate Court which could only allow the amendment sought, the objection becomes infructuous when the appellate Court decides the matter in appeal and affirms the order whereby the plaint and decree in the instant case were amended.
7. Next, it was argued by the learned counsel for the appellant that in the instant case instead of Survey No,332, the disputed property, in the Register of Sale-Deeds maintained by the Sub- Registrar, the description of the property is recorded as Survey No,323 and not 332. It was due to the aforesaid mistake that in the plaint the property has been wrongly described as Survey No,323. The learned counsel has further argued that there is no limitation on the power of the Court for making such corrections. The perusal of the relevant application, submitted by the appellant, shows that he came to know about the aforesaid mistake in the year 1979 when he intended to initiate the execution proceedings. The learned counsel for the appellant has also referred to an application, submitted by the appellant-plaintiff, marked as Exh.PD., which was addressed to the revenue authorities praying that the mutation of the suit land might be attested in his favour. The perusal of the said application shows that a report was made by the revenue authorities in the year 1979 that survey number was not correctly recorded in the decree-sheet and as such the applicant (plaintiff-appellant) should first get the description of property corrected by the Civil Court. It follows from what has been stated above that it has not been shown that the plaintiff-appellant was aware of the mistake before the year 1979 and, thus, it cannot be said that this was a case of negligence on the part of the appellant-plaintiff. The learned counsel for the appellant has cited some authorities in support of his contention that such a bona fide mistake regarding the description of property in the plaint and decree-sheet can be corrected at any stage provided the mistake is bona fide one.
8. In case reported as Mst. Nawasi Begum v. Mst. Dilafroz Begum AIR 1927 All. 585, it was held that the Court has inherent power to correct clerical mistake in decree-sheet under sections 151 and 152 of the Code of Civil Procedure.
9. In Yerramilli Satyanarayana Rao v. Kandukuri Purnayya AIR 1931 Madras 260, the description of the property in the mortgage deed passed on in the plaint and subsequently in the judgment and decree, both. It was held that such a wrong description of the mortgaged property by mistake or inadvertence when it is copied in the plaint from the mortgage deed and subsequently passes into the decree can be corrected under section 151, C.P.C. A number of authorities were relied upon in support of the aforesaid view in this case.
10. In case reported as Shiam Lal v. Mst. Moona Kaur AIR 1934 Oudh 352, it was held that mistake in the plaint repeated in the judgment and decree can be corrected under inherent power of the Court under sections 151 and 152 of the C.P.C.
11. In Jagamath Prasad Bhagat v. Jamuna Prasad Singh AIR 1934 Pat. 493 it was observed that where the mistake pertained to the description of the property and not to the identity of the property, the Court has ample power to correct such mistake when the same passed from mortgage deed to the subsequent proceedings in the Civil Courts throughout.
12. In case reported as Som Dat v. Sain Das AIR 1934 Lah. 561(1), it was held that a clerical error in the plaint giving rise to a mistake in the decree and judgment can be corrected under sections 151 and 152 of the C.P.C.
13. Identical view was taken in Bhairon Lal v. Harbans Chaudhry AIR 1935 All. 914, Ruhulghani v. B. Uma Shankar AIR 1944 Oudh 5 and Chaganty Katamraju v. Madavarappu Paripurnanandam AIR 1949 Madras 282.
14. In reply, the learned counsel for the respondent has contended that if a mistake is sought to be corrected after a delay due to negligence, it cannot be allowed, especially so when the concerned party is shown to be negligent. He has cited a case reported as Fazal Din v. Rehabilitation Commissioner (Lands) 1987 CLC 1053 in support of his contention. It may be pointed out that the mistake occurred in the aforesaid judgment which was given in writ jurisdiction. The ratio decidendi in the said case is that as the lathes in the writ petition are not ordinarily condoned, and the concerned party was found sleeping over the matter for ten years, the correction sought cannot be permitted. It may be stated here that the mistake in the aforesaid case was not of formal nature. A party wanted to increase his share to the extent of 7 Kanals 13 Marlas. As has already been pointed out the facts in the instant case are quite distinguishable because in the present case the judgment was not given in a writ jurisdiction and the mistake was of a formal nature. The appellant-plaintiff in the instant case cannot be said to be sleeping over the matter after having the knowledge of the mistake. He promptly sought the correction when he became aware of the mistake. 'It is, vident 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.
15. The learned counsel for the respondent has also maintained that as the appellant failed to initiate the execution proceedings within the period of limitation, the correction sought by him could not be allowed. Suffice it to say, we are not deciding the case as to whether the execution proceedings in the instant case were started within the prescribed period of limitation or not. The matter regarding the execution of the decree is to be dealt by the proper forum when raised before it. 'In the light of what has been stated above, we accept the appeal with costs, set aside the judgment and decree of the High Court and restore that of the trial Court which was affirmed by the first appellate Court.