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1986 C L C 552

 

[Peshawar]

 

Before Usman Ali Shah, C. J. and

Inayat Elahi Khan, J

 

MUHAMMAD JALAT KHAN and another‑‑Appellants

 

versus

GHULAM SARWAR

represented by legal heirs and 3 others‑‑Respondents

 

Letters Patent Appeal No. 1 of 1982, decided on 2nd November, 1985

 

 

Muhammad Sardar Khan for Appellants.

Abdus Samad Khan for Respondents.

 

Date of hearing: 28th October, 1985.

 

JUDGMENT

 

INAYAT ELAHI KHAN, J.‑‑The facts giving rise to this Letter Patent Appeal, briefly stated, are that Ghulam Sarwar (respondent) instituted a pre‑emption Suit bearing No. 26/1 on 26‑1‑1956 against Muhammad Jalat Khan and others (appellants). The suit was dismissed by the Civil Judge, Mardan on 20‑4‑1959. The plaintiff went in appeal before the Additional District Judge, Mardan and his appeal was partially accepted on 26‑2‑1960 whereby out of entire suit property consisting of agricultural land, a vacant site and a house, the plaintiff was held entitled to the decree only in respect of agricultural land comprised in Khetas Nos. 964, 965 and 966 measuring 15 Kanals 17 Marlas out of 25 Kanals 171 Marlas on payment of the proportionate’ amount of the sale consideration which was fixed at 119.2,128. The market value of the entire land was fixed at Rs.3,344 inclusive of the mortgage charge of Rs.1,000. Thus, the value of the land was assessed Rs.2,244 as having been paid for the land out of Rs.3,000 paid for all the property in suit. The market price of the land decreed (15 Kanals 171 Marlas) was thus, fixed at Rs.2,128 out of which the pre‑emptor had already deposited Rs.2,000 in trial Court. However, no direction for the deposit of the excess amount of Rs.128 was given nor any time limit was fixed. There was no mention that in case of non‑deposit of the excess amount the plaintiff’s suit shall stand dismissed.

 

2. The appellants feeling aggrieved filed further Appeal No. 181/121 of 1960 before the High Court of West Pakistan Peshawar Bench claiming his entitlement also to the property of which he was deprived by the decree of the lower Court. The appeal was, however, dismissed on 1‑12‑1967. The question of the market value of the land decreed in favour of the plaintiff was not agitated before the High Court nor is there any direction in the said order fixing or extending the time for the deposit of the excess amount of pre‑emption money of Rs.128.

 

3. Muhammad Jalat Khan, vendee (appellant) submitted an application on 24‑6‑1968 before the trial Court for dismissal of the plaintiff’s suit on the ground that pursuant to the order of the Additional District Judge, Mardan, dated 26‑2‑1960 the excess amount of the pre‑emption money has not been deposited by the plaintiff. The application was allowed by the Civil Judge Second Class, Swabi on 14‑9‑1968 holding that the excess amount of the pre‑emption money having not been deposited by the plaintiff within a reasonable time, the pre‑emption decree had become infructuous and inoperative. Ghulam Sarwar, pre‑emptor, then filed an appeal before the Senior Civil Judge, Mardan where his appeal was accepted on 2‑4‑1970 on the ground that the plaintiff could not be penalized for the mistake committed by the Court in not fixing the time limit for the deposit of the excess amount and thus the plaintiff was allowed to deposit the remaining sale price within one month of the date of the order. Muhammad Jalat Khan (vendee) then filed appeal in the High Court (S.A.0. No. 60 of 1970) which was also dismissed by a learned Judge of this Court on 11‑11‑1981. It was held that the land measuring 25 Kanals 17 Marlas with some other property was purchased by Muhammad Jalat Khan and the sale consideration also included the mortgage amount of Rs.1,000 and the learned District Judge granted to the plaintiff a decree for 15 Kanals 171 Marlas only instead of 25 Kanals and 171 Marlas on payment of Rs.2,128. But instead of fixing Rs.1,128 as the price of 15 Kanals 17 Marlas inadvertently mentioned the amount as Rs.2,128. This mistake was apparent on the face of the record which was a clerical or arithmetical error and thus, liable to be corrected by the Court. It was also held that due to this clerical mistake of the Court the plaintiff could not be made to suffer. The aforesaid order, dated 11‑11‑1981 is impugned in this letters patent appeal by Muhammad Jalat Khan and another (vendees).

 

4. In support of the appeal it is contended that after the decision of the appeal by the learned District Judge on 26‑2‑1960 the pre‑emptor should have deposited the excess amount of the pre‑emption money within a reasonable period and having failed to do so the decree in his favour ceased to exist. In support of the contention reliance is placed on Shah Wali v. Ghulam Din and another P L D 1966 S C 983. We consider that this authority was rightly distinguished by the learned Single Judge by holding that it was of no help to the vendee as in that case the trial Court had already fixed a period of two months for deposit of the remaining sale price whereas in the instant case no such period was fixed by both the Court concerned. Similarly, Murad Ahmad and others v. Bashir Ahmad P L D 1973 Lah. 481 cited by the learned counsel is distinguishable because therein it was held that appellate Court was competent to grant extension for the deposit of pre‑emption money by passing an interim order and the pre‑emptor in view of such order could after dismissal of his appeal, deposit the pre‑emption money within a reasonable time. In the case in hand, firstly, there was no time fixed for the deposit of pre‑emption money by the trial court as the pre‑emption suit was dismissed. Secondly, the appellate Court while granting a partial decree in favour of the pre‑emptor did not specify any date for the deposit of the excess amount. The reason, in our view, perhaps was that the learned District Judge was conscious of the fact that the pre‑emption money of Rs.2,000 was already deposited and the decree for 15 Kanals 17 Marlas out of 25 Kanals 17 Marlas was being passed on payment of the proportionate amount of Rs.1,128 which amount was mis-described as Rs.2,128 by clerical mistake. We entirely agree with the finding of the learned Single Judge that this was a case of accidental slip or omission in the judgment of the learned Additional District Judge, dated 26‑2‑1960 for which the plaintiff could not be made to suffer. We also consider that under section 152 of the Civil Procedure Code clerical or arithmatical mistakes in judgments etc. or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either by of its own motion or on the application of any party. There is nothing in this provision that the power cannot be exercised by the Court after the disposal of the suit rather this provision recognises the inherent power of the Court to rectify any clerical or arithmetical mistake at any time when it is brought to its notice. No limitation period is prescribed for an application seeking correction of an accidental omission or clerical error of this nature in the judgment or decree and the power can also be exercised by the Court suo motu and the correction thus, made would take effect retrospectively from the date of the judgment or order sought to be corrected. We also find that the clerical error having been committed by the Additional District Judge in his judgment, dated 26‑2‑1960 the mistake was correctly allowed to be rectified by the learned Senior Civil Judge exercising the appellate powers vide his judgment, dated 2‑4‑1970 when the same was brought to its notice. The question of deposit of pre‑emption money within a reasonable period, as such, in our view, is not in issue in the present case.

 

For the aforesaid reasons we do not find any force in this letters patent appeal which is accordingly dismissed with no order as to costs.

A.A Appeal dismissed

 

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