P L D 1954 Peshawar 67 (PLP)

MUHAMMAD SHAFI, J.‑By mutation No. 2073, attested on 8th December 1938, one Ahmad Gul sold away his occu pancy rights in 29 Kanals 9 Marlas of land, bearing Khasra Nos. 2097,2112‑2118, and 2120, situated in Bakhshali village in favour of Noor Habib, for a sum of Rs.

257. On 1st February 1944, one Taj Muhammad, claiming to be the landlord of the said property brought a suit in a Rev enue Court for the cancellation of the above sale. The Revenue Court by its order dated 30th November 1944, can celled the sale, ordering Noor Habib to be ejected from the aforesaid land. On 30th January 1951, Sher Afzal, Shah Nazar and Ali Asghar, sons of Ahmad Gul, instituted a suit against Noor Habib and two others for the possession of 9 Kanals 21 Marlas of land out of 29 Kanals 9 Marlas, bearing Khasra Nos. 2097, 1212‑1218, and 2120, on the ground that this was part of the land, which had been sold in favour of Noor Habib by muta tion No. 2073, attested on 8th December 1938, and that in spite of the fact that this sale was cancelled, the possession of the land had not been given back to the plaintiffs (It appears that this suit was brought when Ahmad Gul had died, and he had been succeeded by his three sons mentioned above). This suit continued till the 29th of March 1952, when Allah Nawaz Sub‑Judge Mardan, granted a decree in favour of the plaintiffs. An appeal and a revision petition against this judgment and decree were dismissed on 23rd June 1952 and 24th July 1952, respectively. On 9th November 1952, Sher Afzal etc, made an appli cation in the Court of Senior Sub‑Judge Mardan under sec tions 152 and 153 C. P. C. for the correction of their plaint, the decree and the judgment of the Senior Sub‑Judge Mardan, dated 23rd June 1952, which had merged in it the decree of Sub‑Judge Mardan dated 29th March 1952 on the ground that it was by mistake that Khasra Nos. 2097, 1212‑1218 and 2120 were given in the plaint instead of 2097, 2112‑2118, and 2120 and this clerical error in the plaint had resulted in its repeti tion in the following judgments and decrees mentioned above. This application has been accepted by the Senior Sub Judge Mardan, and Noor Habib has come tip in revision against this order. It is not denied by the learned counsel appearing for the petitioner that it was a mistake on the part of the plaintiffs that Khasra Nos, 1212‑1218 were written in the plaint instead of 2112‑2118. In fact Khasra Nos. 2112‑‑2118 were the sub ject‑matter of sale in mutation No. 2073 as well as in the subsequent proceedings in the Revenue Court instituted by Taj Muhammad, the alleged landlord of the property. The only ground which has been urged before me is that the case is not covered by section 152 or 153 C. P. C., because none of these sections contemplates the amendment of the plaint on account of clerical mistake by the plaintiffs. It is further argued that since the judgments and decrees were in accor dance with what the plaintiffs demanded in the plaint, they also could not be amended because there was no clerical or arithmetical mistake arising therein from any accidental slip or omission. The contention of the learned counsel for the petitioner, taken at its face value, has considerable force, but then it can not be said that where an obvious miscarriage of justice has taken place the Courts have no power to do justice or redress the wrong merely because the case is not covered by the ex press provisions of the Civil Procedure Code. Every Court must be deemed to possess all powers which are necessary to do the right arid 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 justitiae. 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 inadvertance, or mistake. In this view of the case the order of the learned Senior Sub‑Judge Mardan is, in accordance with justice and equity and must be main tained. The revision petition fails and is hereby dismissed with costs. Pleader's fee Rs.

20. Orders announced. A. H. Petition dismissed.