CH. IJAZ AHMAD, J.- The brief facts out of which the present revision petition arises are that vide registered deed dated 20.6.1977, Ghulam Muhammad sold 56 kanals, 26 marlas of land in Muaza Kathgar Tehsil Taunsa Sharif in favour of Gamoon Khan for consideration of Rs.10,000/-. Ghulam Qadir Khan-respondent filed a suit for pre-emption against the said sale. The contents of the plaint revealed that actual price was paid Rs. 1,000/- and the amount Rs.10,000/- was fictitiously mentioned. The leamed trial Court framed the, following: ISSUES.
(1) Whether the plaintiff is estopped to sue?
(2) Whether the defendant made any improvement over the suit land?
(3) Whether insufficient Court-fee has been paid?
(4) Whether the plaintiff lacks a cause of action?
(5) Whether the defendant's name is Gamun alias Ghamma?
(6) Whether the sale price of Rs. 1000/- was fixed in good faith or actually paid by the defendant?
(7) If not what was the market value of the suit land at the time of sale?
(8) Whether the plaintiff has a superior pre-emptive right qua the defendant?
(9) Relief.
2. The learned Civil Judge, Taunsa Sharif dismissed. The suit vide its judgment and decree dated 14-7-1979. Ghulam Qadir etc. Aggrieved by the judgment and decree of the trial Court filed an appeal before the District Judge D.G. Khan which was entrusted to the Additional District Judge, D.G. Khan, who vide his judgment and decree dated 9-1-1980 decreed the suit.
3. The leamed counsel of the petitioner contended that petitioner filed an application under Section 152 C.P.C, before the 1st Appellate Court for correction of arithmetic mistake in the judgment and decree passed by the said Court on 9-1- 1980, according to which the said appeal was partly accepted and a decree was granted to Ghulam Qadir pre-emptor for possession of 35 kanals and 10 marlas of land out of the disputed land and the market value of the said land was determined as Rs. 158.80.Per kanal excluding the mortgage money which comes to Rs. 5,637 but inadvertently the total price to be deposited by the pre-emptor was stated to be Rs. 1437/- only.
After money already deposited. He further argued that the said arithmetic error was apparent on the face of the record and the leamed lst Appellate Court rejected the .Application for the correction of the same vide order dated 25-1- 1990 which is not sustainable in the eyes of law.
4. The learned counsel for the respondent contended that the petitioner filed R.S.A. No. 84/80 against the judgment and decree of the 1st Appellate Court dated 9-1-1980 which was dismissed vide judgment and decree dated 22-5-1988, therefore, the judgment of the 1st Appellate Court merged in the judgment and decree of this Court. The petitioner has to file the said application under. Section 152 C.P.C, before this Court but mala fidley filed application before the First Appellate Court.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties.
The First Appellate Court while deciding the appeal came to the following conclusion which is reproduced hereunder: "For what, is said above appeal is. Partly accepted. A decree is granted to Ghulam-Qadir pre- emptor for possession of 35 kanals, 10 marlas of land out of the disputed land while the remainder of his suit shall stand dismissed. In his report dated,27-5-1979 the Local Commissioner had fixed the market-value of the suit land as Rs. 158.80 per Kanal excluding the mortgage money. This price was up-held by the learned trial Judge. Both the contestants accepted this price. I direct Ghulam Qadir pre-emption to deposit in Court Rs. 1437/- after deducting the money already deposited by 9-2-1980, failing which whole suit shall stand dismissed with costs. Property shall pass subject to mortgage. In view of the partial success of the appeal parties shall bear their own costs throughout."
Mere reading of the above-mentioned paragraph of the judgment of the First Appellate Court reveals that it was an arithmetic error in the judgment and decree which can be cured at any stage. Technicalities cannot defeat the justice which is evident on the face of the record. I am fortified by the judgment of the Supreme Court of Pakistan in "Said Muhammad and another v. M.
Sardar and another" (P.L.D. 1989 S.C 532), "indicated that a party should not be denied a relief on account of technicalities in the procedural law, as the same is framed for the purpose of regulating the legal proceedings they are extended and designed to foster the cause of rather than to defeat it"
6. In view of what has been discussed above the respondent is directed to deposit the said amount after deducting the amount which has already been deposited by him within one month.
With the above observation this civil revision is disposed of.