2022 PLP 127 (CLC)

MUHAMMAD NAEEM ANWAR, J.

Through institution of this civil revision, petitioners have challenged the validity and correctness of the judgment and order of learned Additional District Judge-II, Bannu dated 22.06.2020 by which their appeal was dismissed and the order of the learned trial court dated 10.10.2019 was maintained.

2. Facts laying in the background of the instant petition are that predecessor-in-interest of the present petitioners namely, Muhammad Syed Ali Shah filed a suit for recovery of possession through pre-emption regarding the house bearing Khana Shumari No. 44 measuring 10 Marla situated at Koti Sadaat Bannu transferred in favour of predecessor-in-interest of respondents Nos.1 to 5 namely Syed Noor Din Shah through registered Wasiqa No. 162 dated 14.04.2016. A prayer for perpetual injunction was also sought that respondents be restrained from making any kind of alteration or construction in the suit property. It was alleged that the he has got the knowledge of the disputed sale on 14.04.2016 on Thursday at about 05:00 PM through Asif Ali Shah (his son) in presence of Rehmat Ali Shah, at his house situated at Koti Sadaat Bannu, he at the spur of the moment announced his intention to pre-empt the suit property followed by issuance of notice of Talb-e-Ishhad on 27.04.2016. Suit was resisted by predecessor-in-interest of respondents (vendee) through his detailed written statement on various legal and factual objections. It was contended in the legal objections that house bearing Khana Shumari No. 22 was purchased by him in lieu of Rs.22,00,000/- in the year 2019 with the consent of pre-emptor/plaintiff, therefore, he has waived of his right of pre-emption. On 17.10.2016, the pre-emptor has submitted an application for correction of description of suit property that Khana Shumari number of the disputed house as "22" instead of "44" on the ground that through registered deed No. 162 dated 14.04.2016 house Khana Shumari No. 22 was sold, however, it was inadvertently mentioned as "44". The application was contested by the present respondents. After hearing the parties, the learned trial court through its order dated 12.12.2018 deemed it appropriate to summon Sub-Registrar, Bannu, for clarification that whether house bearing Khana Shumari No. 22 was sold through registered deed No. 162 dated 14.04.2016? As per the direction of the learned trial court, statement of Imtiaz Khan Registry Moharrir of the office of Sub-Registrar, Bannu, was recorded on 02.04.2019, who in his examination-in-chief placed on file copy of registered deed No. 162 dated 14.04.2016 as Ex.PW-1/1 to the effect that it pertains to Khana Shumari No.

22. He was cross-examined on 18.07.2019 wherein he admitted it as correct that registered deed No. 162 is relating to the transfer of house Khana Shumari No.

22. After recording the statement of PW, learned trial court through its order dated 10.10.2019 has dismissed the suit of pre-emptor for want of correct particulars of the suit house. Being dissatisfied from the judgment and decree of the learned trial court, the petitioners have filed Civil Appeal No. 58/13, however, the same too was dismissed on 22.06.2020, hence, the instant petition.

3. Learned counsel for petitioners contended that Khana Shumari No. 22 was mentioned in Urdu digits "", however, it was inadvertently written as "44" but the claim of petitioner/pre-emptor was in respect of the property sold through registered deed No. 162, which was correctly mentioned in the plaint along with notice Talb-e-Ishhad, therefore, the property transferred through registered deed was the subject matter of the suit, the description of which were particularly given therein and the copy of registered deed No. 162 was annexed with the plaint as it appears from Para-1 of the plaint. He added that by correcting the description of Khana Shumari number of the disputed house as 22 instead of "44" neither the petitioners have sought for amendment in the plaint nor does it change the complexion of suit rather it was an application to correct the description of property and that too on the basis of registered deed copy of which was annexed with the plaint, thus, both the learned courts below have mis-interpreted the provision of Order VI, Rule 17 of the Code of Civil Procedure, 1908, in support of his submission he placed reliance on the case law reported as 2019 CLC Note-08 and 2011 CLC 656.

4. As against that, learned counsel for respondents vehemently contested the instant petition and vociferated that once the description of property was mentioned in the plaint, the same cannot be changed/amended in accordance with the judgment of apex court reported as 2013 SCMR

23. To fortify his submissions, he also placed reliance on the case law reported as 2014 CLC 1478. He added that the pre-emptor has passed-away during pendency of the suit as such the suit filed by him cannot be proceeded ahead because the legal heirs could not prove personal act of making of Talb-e-Muwathibat by pre-emptor himself and in such an eventuality it would be a futile exercise, if they are allowed to proceed with the suit.

5. Arguments heard; record perused.

6. It appears that the suit for recovery of possession through pre-emption was in respect of the property sold in favour of predecessor-in-interest of respondents through registered deed bearing No. 162 dated 14.04.2016 and it was never denied by the respondents that disputed house was not purchased by their predecessor through above referred registered deed. Para-1 of the plaint is of much significance when the alienation/purchase of property by predecessor-in-interest of respondents through registered deed No.162 dated 14.04.2016 was particularly mentioned and the petitioners have annexed the copy of registered deed with their plaint. Para-1 of factual objections of the written statement is of worth perusal wherein the vendee has not denied the factum of purchase of property through registered deed No. 162 rather it was contended that the sale was made in the year 2013 and the pre-emptor was in the knowledge of it. As per the contents of the plaint, the petitioners have applied for attested copy of registered deed which was handed-over to him on 21.04.2016 and the same was annexed with the plaint. It is pertinent to mention that in the first line of the registered deed, the description of the property was written in Urdu numbers "" on the basis of which not only the alleged notice of Talb-i-ishhad was issued, but the plaint was also drafted. Apart from the number of the disputed house all other numbers are in English, i.e., Wasiqa number, date of its attestation, value of the house, valuation of the stamp duty, year of Khana Shumari, CNIC number of vendor and CNIC number of witnesses of the deed. No doubt in revenue record prepared since 1872 till late 1980's all the numbers, i.e., Khasra and Khata were written either in Urdu or Persian and the revenue officers, lawyers and the common public were aware but nowadays neither the officials of the revenue hierarchy nor lawyers can read or write Urdu and Persian numbers nor these are not been taught in Schools. It was an inadvertence/clerical mistake which happened when the notice of Talb-i-Ishhad and plaint was drafted. The word "Mistake" and "clerical mistake" has been defined in Black's Law Dictionary which reads as:- "An error resulting from minor mistake or inadvertence, especially in written or copying something on the record, and not from judicial reasoning or determination. Among the boundless example of clerical error which omitting an appendix from a document typing an incorrect number, mis-transcribing a work; and falling to log a call. A court can correct a clerical error any time even the judgment has been passed. The term "mistake" has been defined in Black's Law Dictionary as an error, misconception or misunderstanding in erroneous belief."

7. It may be defined that a mistake made in a letter, paper or document that changes its meaning such as typographical error or un-intentional addition or omission of a word, phrase or a figure, a mistake of this kind is a result of an oversight. An error made by a clerk/author in transcribing or other-wise. An error is amendable where there is something to amend it from the above reproduced definition of clerical error read with the contents of the plaint one can come to a definite conclusion that the scribe of plaint and notice Talb-i-Ishhad has inadvertently read the number in Urdu in registered deed "" as "44" with respect to its similarity/resemblance. The apex court in the case of "Qamar-ud-Din v. Muhammad Din and others" reported as PLD 2001 (Supreme Court) 518, has upheld the decision of the Lahore High Court when the date of making of Talb-i-Muwathibat was allowed to be rectified as 28.12.1994 instead of 05.01.1995 for the reason that notice of Talb-i-Ishhad was drafted on 05.01.1995 and this date was inadvertently mentioned as the date of making Talb-i-Muwathibat and it was held by the apex court that (of course for exercising jurisdiction, as above, a reasonable ground always to be shown. It is not disputed that in the notice of Talb-i-Ishhad dated 05.01.1995 it was clearly stated that petitioner had come to know about the sale on 28.12.1995. Ex-facie it was a typing/clerical mistake and was rightly allowed to be rectified by the trial court on payment of costs which was further enhanced by the High Court from Rs.1000/- to Rs.10,000/-. Revisional court by setting-aside the order of trial court has committed serious illegality of the nature which could have the effect of depriving the legitimate right of a party. Merely, because revision was decided it would not by itself be a bar for an aggrieved party to file writ for seeking complete justice in appropriate cases which of course will depend upon merit of each case).

8. Insofar as the dictum laid-down by the Hon'ble Supreme Court in the case of "Gulshan Yaseen and others v. Ajab Gul (2013 SCMR 23), the matter before the Hon'ble apex court was regarding the particulars of date, time and place of making of Talabs which indisputable goes to the root of the case and any such omission in the plaint would be sufficient to non-suit the pre-emptor, as these particulars are sine qua non for the pre-emptor to be mentioned in the plaint. Keeping in view the correction/rectification of the number/figures of the disputed house as mentioned in the registered deed, the case law relied upon by the learned counsel for respondent being distinguishable cannot be applied to the matter in hand.

9. Even otherwise, the description of property was given in registered deed which was not only annexed with the plaint but reference whereof has also been given in Para-1 of the plaint, Over and above, it is an admitted fact that this is the registered deed vide which the disputed property was purchased by respondents.

10. Moreover, law requires the adjudication of the matters on merits rather than technicalities. Reference can be placed on case titled "Zohra Bibi and another v. Haji Sultan Mehmood and others" (2018 SCMR 762), wherein, it was held that technicalities should not hamper the administration and dispensation of justice. Whenever it is possible to grant a relief under the law, then technicalities in way of administration of justice should be avoided to the possible extent by remaining within the domain of law. In this respect, reliance can well be placed on case titled "Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1) and "Zahid Zaman and others v. Khan Afsar and others" (PLD 2016 SC 409).

11. Adverting to the last submission of learned counsel for respondents that death of pre-emptor would abate the proceedings in the suit of pre-emption, however, this argument of the learned counsel has got no force at all because in the Pre-emption Act of Khyber Pakhtunkhwa, Section-16 deals with the death of pre-emptor such as where a pre-emptor has died after making any of demands under section 13, his right of pre-emption shall stand transferred to his legal heirs. Thus, the death of pre-emptor will not abate the suit but the right of pre-emption being survived will devolve upon the legal heirs. Ref: "Alam Sher and 2 others v. Muhammad Usman Khan through legal heirs and 2 others (2017 CLC Note 189)". Both the learned courts below have not properly assessed the material before them pertaining to the description of property as mentioned in the registered deed which is undisputed and on account of similarity/resemblance in the number/figure "" in Urdu with "44" in English would not deprive the pre-emptor from rectification which aspect of the case was not properly decided by the learned courts below, which resulted into an illegality.

12. For the reasons discussed above, the instant petition is allowed at the cost of Rs.10,000/-, the judgment and orders of both the courts below are hereby set-aside. On acceptance of the application description of the property as mentioned in Para-1 of the heading of the plaint, and notice of Talb-i-lshhad shall be read as "/22" instead of "44". The suit of the pre-emptor shall be deemed pending before the trial court, which shall be decided, after recording of evidence, on merits, in accordance with law. ZH/220/P Revision allowed.