P L D 1954 Peshawar 65 (PLP)

MUHAMMAD SHAFI, J.‑Said Alain and Mir Alam, sons of Khair Muhammad, instituted a suit against Shah Feroz and four others on the 6th of September 1946, for a declaration that they were entitled to a right of way from a public thoroughfare, bearing Khasra Nos. 614 and 616 to their water‑mill situated in Khasra No. 644, through the defendants' fields, bearing Khasra Nos. 618, 619 and 628, and for a permanent injunction directing the defendants not to interfere in the exercise of the right of way in question. An extract from Shajra Kishtwar was attached with the plaint, showing all the Khasra numbers mentioned above. The suit was very hotly contested by the defendants. They denied that the plaintiffs had any right of way through the fields in question, or that the water‑mill situated in Khasra No. 644 belonged to them. The case was finally decided in favour of plaintiffs by Sub‑Judge Abbottabad, at Haripur on the 17th of October, 1947. The defendants went up on appeal against this order, which was rejected on the 17th of February 1948. On 31st January 1949 Said Alain and Mir Alam plaintiffs made an application under section 152 C. P. C. for the amendment of the decree of the Sub‑Judge mentioned above. They prayed in the application that the right of way, which vested in the plaintiffs, was not through Khasra Nos. 618, 619 and 628, but through Khasra Nos. 621, 620, and

619. The mistake according to them had occurred on account of the wrong Shajra Kishtwar given to them by the patwara. This application has been accepted by Sub‑Judge 4th Class Haripur, by his order dated 6th April 1950. An appeal against this order was dismissed by Sadullah Khan, the then District Judge Hazara, on the 31st of January, 1951, on the ground that the amendment in the decree having been made under section 152 C. P. C., no appeal was competent. There was a revision petition filed against this order, which was accepted by me by order dated 2nd May, 1952, in which I held that the order in question was appealable, because it was more or less an order passed under O. 47 C. P. C., and not under its section

152. I sent the case back to the District Judge to decide it according to law. The learned District Judge has now dismissed the appeal on merits, and Shah Feroz has come up in revision to this Court. In my view there cannot be a worst case of misapplica tion of section 152 C. P. C., than the one under revision. A Court under this section can only correct clerical or arithmetical mistake in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, which are apparent on the face of the record. It has no a jurisdiction to correct any order or decree on any other ground even if the Court is of the opinion that it was passed under an erroneous impression as to the facts of the case. An amendment allowing the correction of the decree, which completely alters the pleadings and the judgment, can in no sense be said to be the correction of a clerical or arithmetical mistake in the judgment or the decree, or errors arising therein from any accidental slip or omission. In this case the plaintiffs had not only to ask for the correction of the decree or the judgment; they had further to pray that their own plaint be amended, so as to substitute Khasra Nos. 621, 620, and 619, for Khasra Nos. 618, 619, and

628. The Court, if it allowed that, had to permit the defendants to put in al fresh written statement, and then strike the issues anew, examine the witnesses de novo, and give a fresh judgment with regard to the amended case of the plaintiffs. Surely all this cannot be done by merely taking action under section 152 C. P. C. to stretch this section to that extent would be a travesty of judgment. I have consequently no hesitation in holding that the orders of the two Courts below are on their very face illegal and absurd. They are hereby set aside. The petition is accepted, and the application of the plaintiffs is dismissed with costs: throughout. Pleader's fee Rs.

30. Orders announced. A. H. Petition accepted.