2020 PLP 1334 (CLC)

MUHAMMAD EJAZ SWATI, J.

The respondent Shamim Gul widow of Raja Muhammad Gulzar, had initially filed suit for declaration and consequential relief with the averments that she alone is exclusive owner of the house bearing No.162-HI/B-5 Satellite Town, Quetta measuring 5400 sq. ft. (house in question). The said suit was dismissed vide judgment and decree dated 21.03.1998 by the Additional District Judge-IV, Quetta. The said judgment and decree was upheld upto the Hon'ble Supreme Court. Thereafter, petitioners filed a suit for partition, possession for their share as prescribed by Sharia and mesne profit against the respondents, which was partly decreed by the Senior Civil Judge-I, Quetta, vide order and decree dated 13.05.2005. The relevant is reproduced herein below: "The plaintiff are thus entitled for their respective share as per Sharia as well as possession on the basis thereof. Suit of plaintiff is thus partly decreed in favour of plaintiffs to the extent of partition and possession of house bearing No. 162-H1/B-5, Satellite Town, Quetta, measuring 5400 Sq. Ft. for their share as prescribed by Sharia."

2. The appeal filed by the respondents was dismissed by the appellate Court on 17.11.2006, and Civil Revision Petition, filed by the respondents was also dismissed by this Court on 6th July 2007 and said judgment was up held up to the Hon'ble Supreme Court.

3. On application under Section 151, C.P.C. filed by the decree holder, the learned Executing Court, directed the Civil Nazir to handover the area mentioned in the order to the decree holder and respective parties, which was assailed by the respondent and appeal was allowed. Consequently, the decree holder filed Civil Revision Petition No.563 of 2010, which was decided by this Court on 30.06.2017. This Court in para No.13 decided the petition as under: "In the instant case, the fixed Shares of mother of the petitioners and respondent No.1 was 1/8th i.e. 674 sq.ft. and they have to share in the allotted entitlement i.e. 337.5 each. After the death of mother of the petitioners, her share i.e. 337.5 devolves upon the petitioners. In the instant case, the trial Court vide order / decree dated 13th May 2005 decreed the suit in favour of the petitioners (plaintiff's) i.e. "the plaintiff are entitled for their respective share as per Sharia as well as possession on the basis thereof".

4. After above judgment, an application under Section 152, C.P.C. was filed by the decree holder, wherein, it is contended that in the suit, the area of the house was given as 5400 sq.ft. while in the allotment order, issued by the Quetta Development Authority (QDA) and at site the actual area is 7065 sq.ft. and area of the property to be portioned may be corrected as 7065 sq.ft. instead of 5400 sq.ft.

5. The application was contested by the respondents, however, the learned Executing Court, vide order dated 17.11.2018, dismissed the same, which has been assailed by the petitioners by way of filing instant petition:

6. Learned counsel for the petitioners states that along with application, the allotment order and site plan of the house in question was also annexed, but without getting verification of the same and allowing rectification in the decree with regard to area of the property, the legal heirs have been deprived from their due rights in the house in question.

7. Learned counsel for the respondents opposed the contention of the learned counsel for the petitioners on the ground that the suit filed by the petitioners was decreed on the basis of evidence containing area i.e. 5400 sq.ft. and the said decree was upheld upto the Hon'ble Supreme Court, therefore, any change/correction in respect of area is beyond the decree, which is not permissible under the law.

8. Having heard the learned counsel for the parties and perused the record of the case. The shares of the parties have already been decided in the suit upto the Hon'ble Supreme Court and the omission on the part of decree holder that the actual area of the property was 7065 sq.ft. but in the suit due to inadvertent omission it was mentioned as 5400 sq.ft and this aspect of the matter gets support from the allotment order as well as site plan, issued by the QDA. The parties are claiming their share of the subject matter of the suit/decree and the allotment order and site plan of the subject house is the foundation of the title. The specification/area of the subject house in the allotment order is mentioned as 7065, but it was incorrectly mentioned in the suit/decree as 5400. The non-mentioning of the correct area at the best can be considered as a lapse or omission is always subject to correction/amendment according to the title deed/allotment order by invoking the provision of sections 152 and 153 as the case may be. In Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others, 1991 SCMR 2451, the Hon'ble Supreme Court of Pakistan has enunciated the principle of law that where any claim is founded on the deed and an incorrect specification of property is detected, correction of the same to bring it inconformity with the deed/agreement should be allowed and in Para 6 of the judgment observed as under: "The whole claim was founded on a written agreement. That agreement had been mentioned in the plaint as the basis of title and the foundation of rights. The specification or description of the property was evidently picked up from it. A copy of the agreement had accompanied the plaint. The defendants / judgment-debtors had as much notice of that document as of the plaint. None pointed out the discrepancy between the two. The Court too did not detect it. This Court has already held in Amir Abdullah Khan through legal heirs and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972 that where a claim is founded on a deed and the plaint incorporates by reference the contents of such deed, the incorrect specification or incorrect description of the particular of the property can always be resolved and corrected by the reference to the deed so incorporated and not beyond. The basic title deed is that accompanying document of which the parties had full notice. The contest is deemed to centre round that document as stood incorporated in the plaint. Unless the discrepancy in the two is detected by the parties to the contest or by the Court and remains unattended, correction of the incorporating document to bring it in conformity with the incorporated document cannot be refused. Whatever the stage when the discrepancy is detected correction of it can take place by resort to section 152, C.P.C." The learned executing Court has not considered the application under section 152, C.P.C. filed by the petitioners in its true perspective and principle of law laid down by the apex Court of Pakistan. In view of the above, Civil Revision Petition No.11 of 2019 is allowed, the impugned order dated 17th November 2018 passed by the executing Court is set aside and application under section 152, C.P.C. filed by the petitioners is accepted subject to verification of the area of the house mentioned in the allotment order. The Executing Court after verification of the allotment order from the concerned Authority, expedite the realization of the amended decree in accordance with law, possibly within a period of three months. The petition stands disposed of accordingly. SA/10/Bal. Revisiion allowed.