2001 PLP 1867 (MLD)

Mst. Bibi Aisha and children of Mst. Khatima, daughters of Gut Ahmad, sought declaration in Suit No.85/1 of 1989 that they alongwith pro forma defendant No.21, Mst. Bibi Maryam (sister of Mst. Bibi Aisha) are owners in possession of agricultural land in the revenue estates of Dara Pezu, Mauza Sharbikhel and Mauza Badnidhel (Tehsil and District Lakki Marwat) to the extent of 3/5th share left by their father, the inheritance Mutation No.2896, attested on 4‑7‑1933 exclusively in favour of their brother Ali Muhammad (defendant/respondent No. l) and all subsequent transfers made by the said Ali Muhammad are void and ineffective on their rights and pro forma defendant No.21 and as such liable to cancellation

2. The Additional Civil Judge, Lakki Marwat by his judgment dated 7‑10‑1991, while holding the three sisters entitled to one share each, decreed the suit but to the extent of 1/5th share. Ali Muhammad, defendant No. 1, filed an appeal in the Court of learned District Judge, Lakki Marwat, but in the meantime, the plaintiffs filed a review petition under Order XLVII, Rule 1 read with section 152, C.P.C., claiming for correction of arithmetic mistake in the judgment and decree dated 7‑10‑1991, wherein instead of 3/5th share, the plaintiffs and pro forma defendant No.21 were held entitled to 1/5th share due to clerical mistake. By his order dated 18‑11‑1991, the Additional Civil Judge on the acceptance of the review petition amended the relief by granting a decree to the plaintiffs and pro forma defendant No .21 to the extent of 3/5th share in the property left by their father. It may be mentioned that defendant No. 1 had also gone in appeal against the original judgment and decree dated 7‑10‑1991. Against this subsequent judgment of the trial Court, defendant Ali Muhammad also filed an Appeal No.22/13 of 1992. The learned Appellate Court by judgment and decree, dated 26‑2‑1996 remanded the case to the trial Court by setting aside the judgment and decree dated 18‑t.1‑1991 passed in review petition with the direction to decide the review petition filed by the plaintiffs afresh, after giving notice and opportunity of hearing to the appellants/defendants. It was also held that the appeal of the defendants filed against the judgment and decree dated 7‑10‑1991 has become infructuous

3. After remand, the Civil Judge Lakki Marwat, who was seized of the matter by his judgment dated 3‑9‑1996, amended the original judgment and decree dated 7‑10‑1991 to the extent that the legacy of Gut Ahmad shall be split in five shares, out of which two shares shall go to Ali Muhammad, defendant No. 1, as son, and three shares to go to his three sisters, namely Mst. Aisha Bibi, Mst. Khatima Bibi and Mst. Maryam Bibi (one share each) Aggrieved by the said order defendant No. 1 once again took exception and filed an appeal before the Court of learned Additional District Judge Lakki Marwat who by his judgment and decree dated 17‑2‑1998, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs Being aggrieved the plaintiffs have come in revision to this Court

4. The perusal of judgment and decree dated 7‑10‑1991 would disclose that while giving its findings on Issues Nos 1, 6, 7 and 8, the Trial Court did declare that the three sisters, daughters of Gut Ahmad were entitled to 1/5th share each but inadvertently in concluding para. of the judgment instead of word and figure "1/5th share each" recorded that the plaintiffs are entitled to "1/5th share" in the. legacy left by Gut Ahmad. The learned Additional District Judge, at the time of deciding the Civil Appeal No.22/13 of 1992, observed as under:‑ "The nutshell result of the above discussion as well as factual and legal aspects of the case is that this Court is of the firm opinion that the appellant has not been given any notice and condemned unheard as such the Trial Court violated the mandatory provisions of law. Resultantly this appeal is allowed and the impugned reviewed judgment and decree dated 18‑12‑1992 is set aside and the case is remitted back to the Trial Court with the direction to decide the review petition filed by the respondents afresh and decide the same after giving notice and opportunity of hearing to the present appellant." Curiously enough, when Ali Muhammad filed Appeal No.80 of 1996 against the order dated 3‑9‑1996 passed on' remand by the trial Court, overlooking all aspects and orders passed by his predecessor Mr. Shahid Naseem Khan. The Additional District Judge, took upon himself to go into the vires of not only the order passed on review petition but also adjudicated upon the title of the parties which for all practical purposes was a close chapter. The trial Court in the first round of judgment dated 7‑10‑1991 had already held that besides defendant No. 1, his three sisters namely Mst. Bibi Aisha, Mst. Khatima and Mst. Bibi Maryam are entitled to their respective shares in the property of their father. Surely in that event while the son was entitled to 2/5th share the three daughters were entitled to 1/5th shore each. An appeal against the said findings of the trial Court was dismissed having become infructuous in view of the order of the appellate Court. Defendant Ali Muhammad never challenged the findings of the appellate Court in revision or in review petition before the Court questioning the said order. Therefore, the findings of the Trial Court on the issues regarding limitation, cause of action and title etc. attained finality. The only issue after remand before the trial Court was regarding correction of arithmetic mistake made in the judgment and order dated 7‑10‑1991, which was directed to be decided after providing an opportunity of hearing to the defendants/respondents. Even in the grounds of appeal Ali Muhammad did not challenge the judgment and decree dated 7‑10‑1991 against which his appeal was dismissed having become infructuous. On the other hand he challenged only the order dated 3‑9‑1996 of the Civil Judge, allowing the review petition. The relevant part of the grounds of appeal reads as under:‑ "Appeal against the order/judgment and decree in Suit No.148, dated 3‑9‑1996 of Mr. Younas Ali Khan Civil Judge Bannu, through which following the remand order regarding review, decided in favour of the plaintiffs/respondents by granting them decree to the extent of 3/5th share without passing any order regarding the costs. Prayer in Appeal.‑‑For cancellation or order and decree of the Court below and dismiss the review petition filed by the respondents with costs throughout." In other words he was aggrieved of the order which was passed in the review petition to the extent of 2/5th share.

5. In Chakar Khan v. Commissioner Sibi Division (CLC 1979 at page 829), it was held that orders passed on review are appealable under Order XLI, Rule 1, C.P.C. but only on the grounds given in Rule 7, namely, that the application for review was:‑‑ (a) in contravention of the provisions of Rule 2. (b) in contravention of the provisions of Rule 4, or (c) after the expiration of the period of limitation prescribed therefore and without sufficient cause. It is not disputed that the Court which passes a decree is authorised to adjudicate upon an application for review of a decree or order upon the discovery of new and important matter or evidence as is referred to in Rule 1 or the existence of a clerical or arithmetical mistake or error apparent on the face of a decree As has been discussed above omission of the word "Each to 1/5th share" is undisputedly a clerical and arithmetical mistake and is tantamount to an error apparent on the face of the decree and, therefore, it cannot be said that the impugned order was in contravention of the provisions of Rule 2, C.P.C. The parties were given full opportunity of hearing before deciding the matter of review particularly after remand by the appellate Court and, therefore, there is no question of contravening the provisions of Rule

4. The original order was passed on 7‑10‑1991 and the review application having been filed on 6‑11‑1991 it was well within time of 90 days under Article 173 of the Limitation Act, and, therefore, it also cannot be contended that the petition had been made beyond the period of limitation. The learned Civil Judge in the circumstances rightly accepted the review petition to correct the error which was apparent on the face of record, as in the case in hand, no appeal is competent. The learned Additional District Judge in these circumstances was not legally authorized to give his findings on other aspects of the matter which had p attained finality. Consequently while accepting this revision petition, I set aside the judgment and decree, dated 17‑2‑1998 of the Additional District Judge, Lakki and restore those of the Trial Court whereby the three ladies, namely, Mst. Bibi Aisha, Mst. Khatima and Mst. Bibi Maryam have been held entitled to 1/5th share each in the property left by their father Gul Ahmad i.e. 3/5th share in toto. Parties are left to bear their own costs. Q.M.H./M.A.K./317/P Revision allowed.