1. ANWAR ZAHEER JAMALI, J.--- By this Constitutional petition the petitioners have called in question an order, dated 25-9-1997 passed by the Additional District Judge, Ghotki, whereby he has allowed a civil revision application filed by respondent No,1, and directed the petitioners to sign T.O. Form of car in his favour.
2. Relevant facts, as disclosed in the petition, are that a suit for settlement of account and permanent injunction, being Suit No,28 of 1991, filed by respondent No,1 before the Court of Civil Judge, Ghotki was decreed by the trial Court on 2-4-1992 and a Commissioner was appointed to verify the record of the parties and submit report for preparation of final decree accordingly.
3. On 2-4-1992 preliminary decree was framed in the suit and after submission of report by the Commissioner on 24-6-1992, which was not objected by any party, final decree was framed on 28- 6-1992.
4. An Execution Application No,5 of 1994 filed by respondent No,1 was dismissed in default on 13-3- 1995 and, therefore, a fresh execution application was filed by respondent No,1, containing the whole relief as granted to him by the Court, in terms of the preliminary and final decree framed in the suit.
5. This execution application was disposed of by the executing Court of Civil Judge, Ghotki through its order, dated 26-11-1997. Thereafter, on 7-12-1996 respondent No,1 filed an application under Order 47, Rule 1 read with sections 114 and 151, C.P.C., wherein he prayed for review of order, dated 26-11- 1996, on the ground that the executing Court while disposing of the execution application has only considered and decided prayer clause (a) of Column No,11 of the execution application and through oversight prayer clauses (b) and (c) have neither been considered nor decided.
6. The trial Court by its order, dated 11-3-1997 dismissed this review application, which resulted in filing of revision application before the Court of learned District Judge, Ghotki, who vide his order, dated 25-9-1997 allowed the revision application and directed the petitioners to sign the T.O. Form of the car in favour of respondent No,1. This order of the learned District Judge, Ghotki has been impugned in this Constitutional petition.
7. We have heard Mr. Bhajandas Tejwani, learned counsel for the petitioners and Mr. Arbab Khan Ghoto, learned counsel for respondent No,1 and perused the case record.
8. The learned counsel for the petitioners has urged that in the order of Civil Judge, Ghotki, dated 26- 11-1996 there was no mistake apparent on the face of the record, which could have been rectified under the powers of review available with the Court and, therefore, the trial Court has rightly dismissed the review application of respondent No,1 by its order, dated 11-3-1997. The learned counsel further urged that after framing of final decree in the suit, which did not contain prayer clauses (b) and (c) of the plaint, the executing Court was only competent to implement and satisfy the final decree and, therefore, the respondent No, 1/decree-holder was not entitled for any other relief in the execution proceedings.
9. On the other hand the learned counsel for the respondent No,1 has contended that in the Constitutional jurisdiction of this Court, such technical objection cannot be entertained to defeat the ends of justice and further after framing of final decree in the suit the preliminary decree already framed stood merged in it, and, therefore, the executing Court was bound to allow full relief to the respondent No,1, and in such circumstances, disposal of execution application by the trial Court, without satisfying the relief in terms of prayer clauses (b) and (c) of the plaint, was mistake apparent on the face of record and the learned District Judge has rightly allowed the revision application to cure this illegality.
10. ' We have carefully considered the contentions of both the learned counsel and perused the case record.
11. ' It is an admitted position that the suit of the respondent No,1 was decreed as prayed, by the trial Court vide its judgment, dated 2-4-1992, and thereafter, a preliminary decree was framed on the same day, the operative part of which reads as follows:-- "(a) That this Honourable Court will be pleased to pass judgment and decree for the settlement of accounts in favour of the plaintiff against the defendant and thereby after by appointing a Local Commissioner by this Honourable Court, itself after examining the record of the defendants and the losss and damages suffered by the plaintiff due to one sided cancellation of policies and thereafter, determining the exact amount than a final decree may be passed for the recovery of said amount from the defendants Nos.1 and 2 jointly or severally.
(b) To grant permanent injunction restraining the defendant from taking away the said car from plaintiff till the final decision of the suit.
(c) To direct the defendant to transfer of the car in the name of the plaintiff in case of default of payment.
(d) To award any other relief which this Honourable Court deems fit.
(e) To award costs of the suit.
12. This suit come up for final disposal on 2-4-1992 in presence of plaintiff and his Advocate Mr. Arbab Ali Ghoto while in absence of defendants (who made ex parte on 31-3-1992) before Mr. Abdul Rehman Bhatti, Civil Judge, Ghotki it is ordered that version of plaintiff has gone unrebutted and unchallenged then case requires positive attention hence suit of plaintiff is decreed as prayed. Mr. Abdul Wahab Abbasi, Advocate is appointed Commissioner to verify the record of parties and submit report then final decree will be passed accordingly. The plaintiff should deposit Rs,3,000 as Commissioner fee."
13. It is also an admitted position that after submission of Commissioner Report, no objections were filed by either party and, therefore, the final decree was also framed in the suit on 28-6-1992, and at no stage any appeal was preferred by the petitioners against the judgment and decree passed in the suit, which, thus, attained finality.
14. The perusal of the execution application filed by respondent No,1 goes to show that he has rightly incorporated prayer clauses (a), (b) and (c) of the plaint in Column No,11 of his execution application as, his suit was decreed as prayed and, he was found entitled for all these reliefs in terms of the preliminary and final decree framed in the suit.
15. The arguments of the learned counsel for the petitioner contrary to this are fallacious. Even if the contents of the preliminary decree framed in the suit were not incorporated in the final decree at the time of its preparation, legally the preliminary decree stood merged in the final decree and, therefore, the executing Court was bound to implement the same together.
16. At the time of passing of the order, dated 26-11-1996 the trial Court had not adverted to or decided the prayer clauses (b) and (c) of Column No,11 of the execution application, which was a mistake apparent on the face of record, and needed rectification under the powers of review.
17. In addition to this, the objection of the learned counsel is purely technical in nature. It was the duty of the Court to have framed the final decree in accordance with law, which should have contained the whole relief for which the respondent No,1 was finally found entitled in the suit. In such circumstances a party cannot be made to suffer due to an act or omission of the Court. Further, in the Constitutional jurisdiction, this Court will not interfere in the order of the lower Court, unless it is shown that the same has caused some injustice to the parties. Reference may be made to the case of Province of Punjab through Secretary Health Department v. Dr. S. Muhammad Zaffar Bukhari PLD 1997 SC 351.
18. In the above circumstances the provisional Court of learned District Judge, Ghotki, has rightly considered this aspect of the matter for allowing the revision application, and such order of the learned District Judge, needs no interference.
19. These are the reasons of our short order, dated 10-12-1998, whereby this petition was dismissed in limine.