P L D 1956 Lahore 27 (PLP)

B. Z. KAIKAUS, J.‑This revision is directed against the order of Mr. Muhammad Ilyas, Civil Judge 4th Class, Lahore, directing that the application before him for amendment of decree be decided according to the oath of the defendant. The facts are that one Mst. Bhagan, who is a maternal grand‑mother of Mst. Ashraf Bibi, the petitioner before me, had made a gift of some land in her favour. Barkat respondent who is a brother of the deceased husband of the donor filed a suit for the usual declaration under custom that the aliena tion would not affect his reversionary rights. This suit was compromised on the 25th of January 1952, the parties having divided the gifted property between themselves About half of the property went by the compromise to Barkat plaintiff and the remaining half to Mst. Ashraf Bibi. A decree was passed by the trial Court in accordance with this compromise. In 1954 Mst. Ashraf Bibi, finding that the decree‑sheet was not in accordance with the compromise, put in an applicatior1 under section 152, Civil P. C. for amendment of the decree. To this application, Barkat plaintiff filed a reply that lip‑ th is compromise he had been granted nehri land and that the decree, as it stood, was in fact in accordance with the com promise of the parties. The learned Civil Judge, taking no notice of this objection of Barkat, framed only the following issue. Whether the correction sought in the application is permissible under the law? This issue, it will be seen, is one of law and does not require any evidence for its decision. The case was, however, fixed for evidence of the parties and the parties did begin to lead evidence as to the terms of the compromise between them. While evidence was being led, counsel for Mst. Ashraf Bibi made a statement that if Barkat took an oath on the Quran to the effect that in accordance with the compromise sailabi land and one jhalar field had been allotted to Mst. Ashraf Bibi and the remaining nehri land had fallen to his share, the application for amendment may be rejected. The respondent agreed to take this oath. Before the oath had been actually administered, another counsel acting for Mst. Ashraf Bibi put in an application that the application for amendment of decree should not be decided in accordance with the oath of the parties but on merits. It was stated in this application that the counsel who made a statement on behalf of Mst. Ashraf Bibi for abiding by the oath of Barkat respondent was not properly authorised. The learned Civil judge held that he was authorised and dismissing the applica tion directed the taking of oath. This revision petition has been filed by Mst. Ashraf Bibi for the setting aside of this order. I may first state what actually happened with respect to the compromise that had been effected in the original suit. The total land which had been gifted to Mst. Ashraf Bibi was 65 kanals 7 marlas. . By the compromise deed 32 kanals and 13 marlas was to be the property of Barkat and 32 kanals As and 14 marlas was to be the property of Mst. Ashraf Bibi. The area allotted to Barkat was sailabi and banjar qadim with the exception of a field, 5 kanals and 14 marlas in area, which was nehri. On the other hand, the property allotted to Mst. Ashraf Bibi was nehri with the exception of one field of 1 kanal and 19 marlas which was banjar qadim. 'When the parties appeared before the Court after putting in the com promise deed, they simply made a statement that the com promise deed was correct. The learned Civil judge, while passing an order recording the compromise, made a mistake. He granted that property which was to go to the defendant to plaintiff and vice versa and in the order he mentioned the khasra numbers of the land. The decree sheet which was prepared agreed not with the compromise but with the order recording the compromise. I am of the opinion that the whole proceedings before the learned Civil judge, that is, the recording of evidence as to the terms of the compromise and the agreement as to oath, were entirely misconceived. The learned Civil judge was only hearing an application for amendment of a decree on the ground of a clerical mistake or slip. The slip was patent on the record and could not be contested. He was not concerned in this application with the actual compromise between the parties. I Barkat had any grievance in the matter it was for him to move the Court in an appropriate proceeding for setting aside the compromise itself. That compromise stood and the decree was based on it. The decree said it was in accordance with the compromise and it would be self inconsistent if it was not. As soon as the Court discovered that the decree did not in fact follow the compromise on account of a slip or a clerical mistake it became its duty to correct the mistake for no person should be prejudiced by an act of Court. At the most it could be said that the Court had a discretion in the matter. But neither its duty nor the exercise of its discretion could be made dependent on the taking of an oath. The Court can under section 152 Civil P. C. act even suo motu. It could have corrected the mistake without even a reference to the application of the party. The Court's power to act suo motu cannot be the subject matter of an oath. The worst that can happen to Mst. Ashraf Bibi is that the present. application be dismissed ; but can the dismissal bar the Court from exercising its power suo motu if on the question of a slip there be no binding decision between the parties ? The proceedings before a Court in a case where the Court can act suo motu are of a special nature in the sense that their termination does not affect the power of Court. Of course if the question as to whether a slip had occurred was a matter of doubt it might have been the subject of adjudication and may in a proper case have been adjusted by a compromise. But here the slip is patent on the record. The learned judge seems to have been of the opinion that he was to enquire as to the terms of the agreement between the parties. This is based on a misconception. Neither the subject matter of the application nor the issue framed justified such a course. He was not concerned with whether the Original compromise deed was invalid on account of a mistake but whether the decree was in accordance with the compromise. Learned counsel for the respondent relied on section 9 of the Oaths Act and Order XXIII, rule 3, Civil P. C. Neither of these provisions is applicable. Section 9 enables facts to be conclusively proved by the special oath of party. In this case it was sought to be proved by the special oath that according to the compromise the property allotted to Mst. Ashraf Bibi was the same as was by the decree granted to her. That fact was irrelevant for in the present proceedings the learned Civil Judge was only concerned with the correction of a mistake for which his predecessor was responsible. If Barkat's case be that by a slip the Civil Judge who passed the decree recorded the same numbers in his favour as in fact had been granted to him by the agreement of parties and if he depends on such a rare coincidence then he has to take appropriate proceeding for the setting aside of the compromise. It is an impossible position that the original compromise deed is allowed to stand but the decree, which says it is according to the compromise, records something opposed to the compromise. Order XXIII, rule 3 of the Civil P. C. also, for similar reasons, has no application. The discretion or duty of a Court to amend the decree in which E there is a patent slip cannot be dependent on an oath, even though you call it an adjustment. It is not necessary to decide whether an agreement to abide by an oath can be a lawful adjustment or not, I am clear that the present applica tion, if the existence of mistake is accepted, could not be decided by an oath. . I accept this application, set aside the order under revision and direct that the application under section 152, Civil P. C. be decided on the merits. A. H. Application accepted.