GUL MUHAMMAD KHAN, J.-This is an application under section 153, C. P. C. For correction of the plaint by way of amendment so as to incorporate correct Khasra numbers in place of those which were incorrect. The misdescription as it appeared in the plaint is as under : ---(i) The Rectangle No. 949/2 is to be corrected as 494/ 12, so that all the Khasra numbers of the suit land alluded to Rectangle No. 494/2, be read as pertaining to Rectangle No. 494/12;
(ii) Khasra No. 23 has to be bifurcated as the original portion number 23 having 3 kanals 4 marlas area, and another portion 23-A, having area of 2 kanals 2 marlas;
(iii) The area of Khasra No. 24 has to be entered as 4 kanals, 13 marlas instead of 2 kanals 2 marals; .
(iv) Khasra No. 25 has to be entered as having area of 7 marlas;
(v) Khasra.No. 96 .Has to be mentioned instead of Khata.No. 97 ;
(vi) In Rectangle No. 494/7, the correct khasra number is 18-A instead of 16-A;
(vii) For Rectangle No. 494/4, Khasra No. 15, 5 kanals, Rectangle No. 495/ 1, Khasra No. 1 having area of 5 kanals 15 marlas has to be entered;
(viii) In Rectangle No. 495/1, Khasra No. 2, has to be entered as having area of 0-10 ' marlas. The same rectangle has to show separately Khasra No. 1 having area of 5 kanals, 15 marlas as given in clause (vii) supra.
2. Briefly, the facts leading to this application are that the applicant entered into an agreement to sell with the respondents on 7th June, 1968, in respect of the respondents' entire agricultural land .Situate in village Pallu Shah, Tehsil and District Rahimyar Khan. The agreed price was Rs. 1,750 per acre. The respondents had received a sum of Rs. 100 as advance and :promised to complete the transaction by November, 1968. An agreement was also executed on that -date It was stated therein that the respondents had agreed to sell their' entire property in village Pallu Shah to the applicant.
3. The respondents could not perform the agreement by the due date.. .The applicant, therefore, approached respondent No. 1, when be came to know of his presence in the village. The respondents are then stated to have demanded more advance. Consequently, a sum of Rs. 29,900 is stated to have been paid In accordance with the memorandum dated 21st November, 1968. It was agreed therein that the transaction shall be completed by 31st December, 1968. It was noted in that document that the revenue' record had not till then been gone into and that the exact area owned by the respondents had to be verified for the purpose of its incorporation in the sale-deed and the mutation.
4. The respondents are stated to have subsequently refused to perform the contract which resulted in the filing of suit. In the written statement Abdul Sattar respondent admitted the first agreement but stated that it was the plaintiff-applicant who had violated the same. He denied the execution of the second agreement (memorandum) on the ground that it was forged and based on fraud and deceipt. Mubarak A.I respondent denied having conferred any authority on Abdul Sattar to enter into any agreement-on his behalf. He also denied the receipt of any earnest money.
5. While most of the evidence of the parties had been recorded in the trial, it was stated by the learned counsel for the respondents that if the plaintiff/applicant swore on Holy Qur'an that he paid the sum of Rs. 29,900 and that Exh. P. 1 (the agreement dated 21-11-68) was executed by Abdul Sattar, a decree as prayed for may be made in applicant's favour. The applicant accepted the offer and performed his part with the result that the Court decreed the suit on 10th November, 1976. The appeal by the respondents also failed on 16th October, 1977. The applicant thereafter took steps for the execution of the decree. It was there that he came to know that the description of the property as given in the plaint was not correct. The mistake, it is stated, had occurred because the certified copy supplied by the Copying Agency was wrong The applicant made a probe about it and came to know from a certified photo copy that some khasra numbers had been wrongly copied by the copyist in the first certified copy of the mutation. The applicant has come to this Court for correction of the plaint in the above circumstances.
6. It is contended by the learned counsel that even after the confirmation or modification of a decree the appellate Court has the inherent power to amend the plaint for the sake of doing justice between the parties. Reliance was placed on a number of judgments which may be discussed to understand the view taken by different Courts in similar circumstances. In Mukunda Lal Chakrabarty v. Jogesh Chandra Chakrabarty ((1916) 35 I C 370) it was held that when any property be omitted by inadvertence or mistake in the plaint, the suit should not be dismissed but the plaint allowed to be amended by supplying the omission. It was further stated that the widest power of amendment is given, not only to the original but also to the Appellate Court to enable the Court to try all matters properly in dispute between the parties. Patna High Court in Jagarnath Prasad Bhagat v. Jamuna Prasad Singh (AIR 1934 Pat. 493) observed that where the property has been accidentally misdescribed in a mortgage bond and the mistake has been repeated throughout the proceedings to enforce the mortgage but where there is no doubt as to the identity of the property mortgaged and the property sold at auction the Court has ample power to amend the decree.
Thus where a mistake that has occurred is not one of identity of the property that was being dealt with in a suit but a mistake of description, the High Court has ample power to deal with such mistake. The Court in this case followed the Privy Council case 10 Mad. 241 and distinguished 41 Cal.
590. In Ruhulghani v. B. Uma Shankar (AIR 1944 Oudh 5) it was held that where a clerical mistake has occurred by inadvertence in a mortgage deed e.g. One of the items of mortgaged property has been incorrectly described which mistake has been repeated in the plaint and decree, the Court which passed the judgment has power in execution to amend the decree under sections 151 and 152. In Nur Habib v. Sher Afzal (PLD 1954 Pesh. 67), a learned Single Judge of that Court held that "Every Court must be deemed to possess all powers which are necessary to do the right and to undo the wrong, in the course of the administration of justice. The law recognizes and leaves unfettered the inherent power of a Court to act ex debito justitiac. Following this principle I am of the view that a Court has power to amend and rectify a clerical error which has crept into a decree on account of a similar error in the plaint, both in the decree as well as in the plaint, and in fact in all subsequent records, where the error is repeated, provided the error is by slip or inadvertence or mistake."
The Allahabad High Court in Shujaatmand Khan v. Govind Behari (AIR 1934 All. 101(2)) took the view that an amendment allowing a correct description of the property which completely alters the plaintand the decree and also the deed on which the plaint is based cannot be said to be the correction of a clerical mistake in a judgment and cannot be allowed under section 152. In this case it was held that the Judge had misdirected himself in law by allowing parol evidence to be called in a case where the mortgage deed was clear and unambiguous and actually applied to existing facts. In Chaganty Katamraju v. Madavarappu Paripurnanandam (AIR 1949 Mad. 282), it was held that where a mistake bad crept into the description of an item of property in the plaint schedule and the mistake bad been carried over in the decree schedule, the Court has power under sections 152 and 153 to correct the error in the decree even after the disposal of the second appeal. It would not be correct to treat application for amendment as one under Order VI, rule 17 for amendment of pleadings. It was held by Madras High Court in T M. Ramakrishnan Cheniar v. G. Radhakrishnan Chettiar (AIR 1948 Mad. 13) that section 152 is for the purpose of correcting errors directly involved in to the proceedings themselves and not for correcting errors which are anterior to the proceedings particularly in documents upon which suits are brought. Hence, where there is a mutual mistake in the insertion of a wrong survey number in the mortgage deed and the error is repeated in the plaint and the decree, the Court cannot recitfy the error under section 152 as it is not a clerical or arithmetical error or an accidental slip or omission. The remedy lies by way of suit under section 31, Specific Relief Act. In Sankaran Nambudiripad v. Rahman Nambudiri (AIR 1961 Ker.
13), a Single Judge refused correct a decree under section 151, 152 or 153 as there was no decree passed in terms of the compromise. The error in this case was in the agreement of compromise and it was decided that a separate suit for rectification on ground of mutual mistake would be the proper remedy. In Syed Mahomed Maliha v. Chowdhury Mahomed Ismail Khan (AIR 1927 Cal. 203), it was held that where a decree as originally. Drawn up is quite in accordance with the judgment and there is nothing wrong in it, without the judgment being amended or set aside that decree cannot be amended or set aside by an indirect attack and any mistake in the judgment can only be amended by appeal or review.
Thus pre and post Partition view of the Courts in the Indo-Pakistan Sub-Continent on the point involved can be summed up to say that where there has been an inadvertent, accidental or a clerical mistake in the description of the property, in the proceedings, the trial Courts as well as the appellate Courts have the widest power to permit correction of the plaint and the decree. This power, however, is not available if the, mistake is either not of the kind referred to above or it is anterior to the proceedings and means to correct the deeds or the documents on which the suit was based and consequently the plaint and the decree. However, the above prohibition will not apply in a case where the property is identifiable otherwise.
7. The case can be looked into from another angle also. The applicant succeeded up to the High Court but could not reap the fruit of his decree due to no fault of his. The technicalities or the procedural obstacles that are now being put against his cause are in fact meant to advance and not to throttle the cause of justice. It was held by our Supreme Court in Manager, Jammu & Kashmir State Property in Pakistan v. Khuda Yar (PLD 1976 SC 678.) ruled as under : "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principles of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C. P. C. In regard to Constitutional power of this Court to do complete justice m all matters. These two provisions read together lead to the irreparable conclusion that mere technicalites unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. The Court approved the observations of Kaikaus, J. In Imtiaz Ahmad v. Ghulam A.I (PLD 1963 SC 382) which are as follows :- .
'I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, 1 do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of- their rights-Any system which, by giving effect to the form and not to the substance. Defeats substantive rights, is defective to that extent. The ideal must always be a system. That gives to every person what is his'."
It was held in Wall and others v. Manak A.I and others (PLD 1965 SC 651) that law favours adjudication on merits for a failure to so adjudicate means a refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuperable practical obstacle preventing it.
8. In the case. In hand the material on record quite clearly gives out that the parties had entered into an agreement about the entire land situate in village Pallu Shah. There was, therefore, no mistake about identity of the property. The wrong description of it, however, crept into the plaint not because of a mistake of any, kind on the part of the plaintiff/ applicant but because of the Copying Agency. The applicant shall be made to suffer, therefore, because of a mistake on the part of a public' functionary which cannot be allowed. Rather, it is the duty of every Court in such a situation to undo the wrong as otherwise it may opener flood gate of another kind of corruption at the hands of delinquent public officials. The case of the applicant is thus on a far better footing that the cases referred to above.
9. The learned counsel for the respondents had also assailed the present application on the ground that it had been filed after a long delay. The suit had been filed in 1969 whereas the application was made in 1977. It was submitted by him that though no question of limitation arose yet the applicant should suffer for laches on his part. Reference was made to Abid Hussain v. Mrs. R.
K. Paul (AIR 1961 Andh. Pra. 508) in support of the plea. The learned counsel also challenged the validity of the application by saying that the prayer in fact amounted to review of the decree which could not be allowed. Reliance was placed on Muhammad Tufail v. Abdul Ghafoor (PLD 1958 SC (Pak.) 201).
10. The contention of the learned counsel is not valid. It is not his case that the applicant knew about the misdescription from the very beginning of the proceedings. He had relied on a certified copy of the revenue record and had no doubt in his mind about it till he was so told at the time of the execution of the decree. There has been no delay or laches thereafter. The applicant was rather prompt in taking up proceedings to get the mistake rectified. No question of laches, therefore, arises in the case.
For the reasons given above, the amendment as requested in the application and reproduced above in para. No. 1 is allowed. The plaint and the decree shall, therefore, be corrected accordingly.
There will, however, be no order as to costs.