ABDUL HAKEEM KHAN, J.--Land Acquisition Collector and another, who happen to be appellants in this R. F. A., have moved a petition under sections 107, 151, 152 and 153 of the C. P. C. With a view to get the excess amount indicated in paragraph 9 of the grounds of appeal as Re. 18,51,407.22 corrected to Ra. 30,39,893 contending that it was purely an accidental slip, that is to say, arithmetical error and that if this application is granted, there is not going to be any prejudice to the respondents, for the concluding part of the grounds will show that the appellant had prayed that by accepting the appeal the judgment and decree dated 26-2-74 of the Additional District Judge, Hazara at Haripur be set aside and the award of the Collector dated 26-10-1970 be restored with costs throughout. Furthermore, no intention of surrendering a part of claim could be attributed to the appellants, for they had to pay fixed court-fee of Re. 3,000 in either of the two cases.
2. The application was vehemently opposed by Mr. Muhammad Bashir Ansari, the learned counsel for respondent No. 2 and Qazi Abdur Rashid who represents the other respondents. They submitted that the appellant has not come with the clean hands; he was fully aware of the excess amount; and as a matter of fact the respondents are being harassed. When they submitted a bank guarantee for Re. 34,95,876.86 which sum included the excess amount plus compensation for compulsory acquisition, the stand of the appellant was that the excess amount was Re. 18,51,407.22 and that that much amount could only be released in favour of the respondents. As a matter of fact the appellant moved a revision in this Court (C. R. No. 252 of 1975) and got an order from a learned Single Judge that the amount involved in the present appeal is Re. 18,51,407.22
3. Before we proceed to record our finding we should like to mention that the learned counsel for the petitioner-appellants restricted himself to section 153 of the C. P. C. And argued that this Court had powers to amend any defect or error in any proceedings in a suit at any time if that was necessary for the purpose of determining the real question or issue raised by or depending on such proceeding.
4. The allegation of the petitioner-appellants that excess amount in point of fact on calculation has been found to be Re. 30,39;893 plus Re. 4,55,983.95, that is to say Re. 34,95,876.86 has not been controverted by the respondents and they concede that they did furnish a bank guarantee for that amount to the Additional District Judge at Haripur. Nevertheless they are anxious that the amount indicated in para. 9 of the grounds viz. Re. 18,51,407.22 should not be corrected.
5. Here a reference to the impugned order will show that the learned Additional District Judge did not calculate the amount payable to the respondents under the award and a reference to the award of the Collector will also not show that was the total amount of compensation that he had assessed for the disputed land. It would follow that the excess amount was a question of calculation and we are, therefore, not surprised that the calculation of the appellant was found to be erroneous when the figures were worked out and totalled before that an amount for the bank guarantee could be specified. Erroneous admissions can be withdrawn and as a matter of fact so long as the last sentence in the grounds of appeal whereby relief was prayed stand the wrong indication of the excess amount in the sentence just preceding it will not be fatal. The real question that will arise for determination in this appeal is whether or not the judgment and decree of the Additional District Judge, Hazara at Haripur should be set aside and the award of the Collector dated 26-10-1970 be restored with coats. If we were to allow the relief prayed for the amount indicated having been wrongly calculated will tantamount to an erroneous admission which can be corrected. Since the amount indicated is likely to confuse the issue, it is time that the position should bb clarified and the excess amount should be amended to Rs. 34,95,876.86, for the real question or issue that will be resolved by the disposal of the appeal is going to involve the aforesaid amount. This we are doing in spite of the fact that in his petition petitioner only seeks to substitute Re. 18,51,407.22 with the figures Re. 30,39,893. If we were to ignore the amount which is to be given on account of compensation for compulsory acquisition which is on percentage basis, the parties may be prejudiced on that account.
6. It is true that the petitioner-appellant has been persistently putting the excess amount at Rs.
18,51,407.22 and that he moved a revision petition before this Court to secure that clarification, but this was on the basis of erroneous calculation and as far as revision is concerned, that appears to have been motivated by his anxiety to part with as little money as possible in pursuance of the interim orders of this Court. The learned counsel for the respondents submitted that this was with a view to harassm ent, but when it was put to them as to whether they would like to collect Re.
18,51,407.22 under the bank guarantee, they said that they want Re. 34,05,876.86 little realizing that almost double the amount than the excess amount indicated by the petitioner-appellant could not be given to them on the basis of the revised bank guarantee.
7. The learned counsel for the respondents wanted to submit their arguments about the competency of the present appeal but we have told them that it will not be possible for us to go into that question when we have only been called upon to dispose of this miscellaneous petition.
Moreso when the appeal stands already admitted. Another argument urged on behalf of the respondents was that this appeal is being heard along with the connected appeal and in that proceedings have been stayed awaiting the decision of the Supreme Court but little do they realize that if the proceedings were to be stayed, they will not be able to get the excess amount which has been calculated at Rs. 34,95,878.86.
8. The figures given in pare. 9 of the grounds should be corrected in, compliance with this order so as to make the issues before the Court rather clear and in this respect we respectfully follow the precedent in Government of West Pakistan and another v. Mst. Sakina Begum and others (PLD 1962 Posh. 70) the relevant part being on page 82.
9. We should like to make it clear that by allowing the amendment we are just correcting an error which has crept in due to miscalculation and that there is not going to be any prejudice to the respondents, for we shall have to construe both the parts of ground No. 9 together and when this is done, it will inevitably follow that the amount at which excess was being put was erroneous. The question of limitation will hardly arise, for the prayer of the petitioner-appellant was and remains that the award of the Collector be restored and that of the Additional District Judge be set aside. To come up along with the connected appeal.