2016 PLP 2 (CLCN)

MRS. IRSHAD QAISER, J.

This revision petition is directed against the judgment and decree dated 13.09.2007 passed by the Additional District Judge-VI, Mansehra, whereby, application of the respondents for correction of decree sheet dated 28.06.2006 was allowed and against the judgment dated 28.06.2006 passed by the said Court in Appeal No.134/13, as a consequence thereof appeal of the respondents against the judgment and decree dated 30.09.2005 of Civil Judge-VI, Mansehra was accepted and suit of the petitioner was dismissed.

2. The brief and essential facts leading to the present petition are that the present petitioner instituted a suit on 05.04.2004 for possession exercising his right of pre-emption in respect of property comprised in 'Khata' No.19/36, `Khasra` No.274 to the extent of 17 `Kanals situated in Mauza Talyala , Tehsil and District Mansehra, which was transferred in favour of respondents vide mutation No.397 dated 10.12.2003, on the basis of co- sharership, contiguity and participation in amenities and appendages.

3. The suit of the petitioner was contested by the respondents by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence and hearing the learned counsel for the parties decreed the suit of the petitioner to the extent of 8 Kanals 10 Marlas at the rate of Rs. 3,000/- per kanal vide judgment and decree dated 30.09.2005. Aggrieved thereof, the present respondents impugned the same in Appeal No.134/13 of 2005, which was accepted by the learned appellate Court and suit of the petitioner was dismissed vide judgment and decree dated 28.06.2006. Thereafter, an application dated 16.06.2007 was filed by the present respondents under sections 151, 152 of C.P.C. for correction of decree sheet dated 28.06.2006 in Appeal No.134/13 of 2005. The said application was contested by the petitioner and the learned Additional District Judge, Mansehra allowed the said application vide order dated 13.09.2007. Hence, this revision.

4. The learned counsel for the petitioner vehemently argued that the application of the respondents for correction in the decree sheet was time barred and the learned Appellate Court has wrongly and illegally entertained the same; that in the first instance, the decree sheet so drawn has clearly provided dismissal of appeal and on the basis of said decree sheet, the mutation was entered in the name of the petitioner and attested; that the decree sheet was corrected after one year of the passing of decree dated 28.06.2006 and due to the said act of the Court, the petitioner could not file revision petition against the judgment and decree dated 28.06.2006 in time; that as the review petition, which was to be filed within 90 days, for correction of decree sheet was time barred therefore, the respondents filed application under section 152 of C.P.C. but the error/mistake in the decree sheet does not come within the definition and scope of section 152 of C.P.C.; that the findings of the Appellate Court regarding talbs were based on surmises and conjectures and it has not considered the evidence of PW-5 in respect of notice of Talb-i-Ishhad ; that notice was received by the father of respondent; and that delay was caused due to act of the Court, which may be condoned on acceptance of application of the petitioner under section 5 of the Limitation Act, 1908. Learned counsel for the petitioner placed reliance on Sardar Ahmed Yar Khan Jogezai and 2 others v. Province of Balochistan (2002 SCMR 122), Baqar v. Muhammad Rafique and others (2003 SCMR 1401), Bank Al-Falah Ltd. v. Bilal Spinning Mills Ltd. (2005 MLD 1358), Malik Alamgir and 3 others v. Salam Gul and 10 others (1990 CLC 1915) and case titled Faqir Muhammad v. Muhammad Akbar (C.R. No.171/2005) dated 30.03.2009 decided by this Court. In rebuttal, learned counsel for the respondents vigorously argued that the present revision petition was filed on 03.12.2007 against the judgment and decree dated 28.06.2006, thus, there was delay of more than a year in filing revision and section 5 of the Limitation Act, 1908 was not application to the revision petition; that correction could be made under section 152 of C.P.C; that the decree should have been drawn in accordance with the judgment and the error being clerical in nature requires no limitation for correction of such error under section 152 of C.P.C.; that the petitioner has failed to prove Talbs in accordance with law and even PW-7 Imtiaz did not disclose the date of performance of Talb-i-Muwathibat in his statement before the Court. Learned counsel for the respondents placed reliance on Province of Punjab v. Muhammad Farooq and others (PLD 2010 SC 582), Lahore Development Authority v. Mst. Sharifan Bibi and another (PLD 2010 SC 705), Habib Ullah v. Azmat Ullah (PLD 2007 SC 271), Nazar Muhammad and 2 others v. Ghulam Mustafa and 3 others (2004 YLR 1199), Naseeb Jan and others v. Collector, District Karak (PLD 2003 Peshawar 66), Ch. Asad Bilal and others v. Muhammad Hanif and 19 others (2006 MLD 1890), Din Muhammad v. Khan Bad Shah and another (2012 MLD 1006), Safdar Ali and 5 others v. Defence Housing Authority (2011 YLR 1809) and Allah Bakhsh v. Allah Bakhsh (2010 CLC 951).

5. Valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.

6. The most crucial issues, which require deliberation in the present case, are firstly, whether the learned Appellate Court was legally justified to correct the error in the decree sheet on the application of respondents under section 152 of Civil Procedure Code, 1908 after lapse of period of more than one year, secondly, whether correction sought by the respondents was in fact review of judgment and decree dated 28.06.2006, thirdly, whether the present petitioner could not earlier file revision petition against the said judgment and decree and whether the principle of Actus Curiae Nemenim Gravabit , i.e., nobody shall be prejudiced by an act of court would apply in the present case, fourthly whether this Court can entertain application of the petitioner under section 5 of the Limitation Act, 1908 and condone the delay in filing the present revision petition and that too when section 115 of C.P.C. itself provides period of 90 days for filing revision petition against the judgment and decree of the lower Appellate Court and fifthly whether the petitioner has fulfilled the requirements of section 13 of the NWFP Pre-emption Act, 1987 to prove 'talbs'.

7. Admittedly, the present petitioner earlier did not file revision petition against the judgment and decree dated 28.06.2006. He has challenged the said judgment and decree in the present revision petition filed on 03.12.2007, wherein, the petitioner also impugned the order dated 13.09.2007 of the learned Appellate Court, which was passed on the application of the respondents under section 152 of C.P.C. for correction of error occurred in the 'decree sheet'. Perusal of record would reveal that the learned Appellate Court while discussing issue No.9 pertaining to performance of 'Talbs' had finally came to the conclusion that:- "Keeping in view the above mentioned reasons it is said that plaintiff has failed to prove the talb-i-muwathibat in a manner as alleged by him, similarly on the point of the talb-i-ishhad it is also said that when the two witnesses related to talb-i-ishhad are not truthful, whereas the provisions of talb-i-ishhad are that it must be signed or thumb impressed by at least two truthful witnesses on this point also, the suit of the plaintiff stands not proved, hence it is said that on the points of talb-i-muwathibat and talb-i-ishhad I am not agree with the findings given by the learned lower court, the same are set aside and it is held that the plaintiff has not proved the talbs in accordance with the law of pre-emption." Similarly, thereafter while discussing and deciding issue No. 1 pertaining to cause of action, the learned Appellate Court has held that:- "So far issue No.1 is concerned, it is said that a the plaintiff has failed to prove the fact of talb-i- muwathibat and talb-i-ishhad in respect of the disputed property, therefore, he has got no cause of action in respect of the disputed property and he is estopped to sue by his conduct on the point that he has not proved the talb-i- muwathibat." More explicitly, in the last and final order sheet of Appeal No.134/2005, the learned Appellate Court in view of the findings on issues Nos. 1 and 9 held that:- "Parties present. Arguments of both the learned counsel for the parties already heard, file perused. Vide my detailed judgment of the day, on acceptance of instant impugned judgment and decree is set aside and suit of the plaintiff/respondent is hereby dismissed, leaving the parties to bear their own costs. This Court considers that after such a clear and unambiguous finding on the relevant issues in the judgment dated 28.06.2006 followed by short order of even date, mentioning of dismissal of appeal in the 'decree sheet' was absolutely a clerical mistake and an error. The learned Appellate Court was thus justified to correct the said error and mistake, which was apparent and visible on the face of the record in exercise of jurisdiction vested in it under section 152 of C.P.C. No limitation was required to remove such anomaly occurred in the judgment, decree and orders. Such like errors could be removed at any time, as provided in section 152 of C.P.C. that Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties . This Court in Naseeb Jan's case (PLD 2003 Peshawar 66) has held that: It is admitted position that the petitioners had moved an application under section 152, C.P.C. for the correction of the decree passed in their favour. An application under section 152, C.P.C. can be moved for correction of clerical or arithmetical mistake in the judgment, decrees or orders or errors arising therein from any accidental slip or omission at any time . Similar view has subsequently been taken by the Lahore High Court in Nazar Muhammad s case (2004 YLR 1199), in the following words:- It is settled law that, for the purposes of correction of a decree-sheet, so as to bring it in line with the judgment, the Court has the powers even to suo motu make the correction, or an application in this behalf by the concerned party, can be moved at any time. There is absolutely no bar of limitation in this regard. Resultantly, even if the legal heirs of Mst. Raj Bibi had applied for the correction of the decree after the lapse of 12 years, yet the Court, without notice, as a matter of duty, being satisfied that the request is genuine and bona fide and the mistake in the decree is apparent, conspicuous and floating on the face of the record, could correct the decree without notice to the opposite side. In such situation, the rule of violation of hearing principles shall not be applicable. Thus, in view of above, the learned Appellate Court has rightly exercised its jurisdiction to correct the mistake in the decree sheet, which was apparent and visible on the face of the record without resorting to any deliberation and detailed investigation. No review petition was required to be filed for correction of such like mistakes or errors as was the contention of the learned counsel for the petitioner and it was also not amounts to review of the judgment.

8. Now coming to the question as to whether the petitioner could not file revision petition within the prescribed period of limitation due to act of the Court or otherwise. Admittedly, the present petitioner got attested mutation No. 435 dated 12.10.2006 of the disputed property in his favour on the basis of incorrect decree sheet dated 28.06.2006. Obviously, when he got copy of the decree sheet he must have also obtained copy of the judgment and surely would have also gone through the judgment as well like decree sheet. The entire emphasis and stress of the petitioner was on the decree sheet and he did not utter a single word about the findings of the Appellate Court on issues Nos.9 and

1. In view of the peculiar facts and circumstances, prima facie it was not the respondents but the petitioner who took advantage of incorrect decree sheet despite knowing that the appeal was not decided in his favour, purposely and with mala fide intention got entered and attested mutation of the disputed property in his favour. He was also legally required to have brought to the notice of the Court the aforementioned anomaly in the judgment and decree sheet. When the learned Appellate Court made correction in the detree sheet, the present petitioner filed the present revision petition challenging both the order dated 13.09.2007 and judgment dated 28.06.2006. Thus, the record placed before the Court speaks that the events had not happened in the manner as alleged by the petitioner and the facts were deliberately suppressed in this regard. Hence, the principle of "Actus Curiae Nemenim Gravabit", i.e., nobody shall be prejudiced by an act of court would not apply in the present case.

9. Now moving on to the issue whether this Court can entertain the application under section 5 of the Limitation Act, 1908 filed by the petitioner for condonation of delay of about one and a half year in filing revision petition against the judgment and decree dated 28.06.2006 when section 115 of C.P.C. provides that such "application shall be made within ninety days of the decision of the subordinate Court." In this regard, this Court would make reference to the case of Din Muhammad v. Khan Bad Shah (2012 MLD 1006) of this Court, wherein, this issue has been eloquently described. The relevant extract from the judgment reads as under:- "The petitioner has filed an application for condonation of delay in filing the instant petition. After deducting the time, consumed by the petitioner, in obtaining the copies, this petition is delayed by 5 days, whereas in Mst. Banori's case section 12(2) of the Limitation Act, has been discussed and the petitioner can legitimately avail the benefit of the ibid section of law. However, section 29(2)(b) of Limitation Act, clearly bars the application of section 5 of the ibid. Act, to any local or special law, wherein limitation for filing suit, appeal or application, has been prescribed. As there is no provision for filing of revision petition, in the Limitation Act, rather section 115, C.P.C., itself prescribes limitation of 90 days, for filing of revision petition, so the provisions of section 5 of the Limitation Act, cannot be availed or invoked for condonation of delay. This proposition was resolved by the honourable Supreme Court in case titled Allah Dina and another v. Muhammad Shah and others 2001 SCMR 286 and was held as under: 5.... We have given our anxious thought to the proposition under examination. There is no cavil with the argument that if the Statute governing the proceedings does not prescribe period of limitation, the proceedings instituted thereunder shall be controlled by the Limitation Act as a whole. But where the law under which proceedings have been launched prescribe itself a period of limitation like under section 115, C.P.C., then benefit of section 5 of the Limitation Act cannot be availed unless it has been made applicable as per section 29(2) of the Limitation Act, as held in the cases............ In this regard, reliance is also placed on Province of Punjab v. Muhammad Farooq (PLD 2010 SC 582), Allah Bakhsh v. Allah Bakhsh (2010 CLC 951) and Safdar Ali v. Defence Housing Authority (2011 YLR 1809). Thus, the application filed by the present petitioner under section 5 of the Limitation Act, 1908 is not maintainable in view of the ratio decindendi provided in the aforementioned case law and it is held that the present revision petition has been filed beyond the period of limitation as provided in section 115 of C.P.C.

10. On merits, the petitioner has failed to prove through cogent and reliable evidence that 'Talbs' were performed by the petitioner in accordance with the requirement of section 13 of the NWFP Pre-emption Act, 1987. Hence, the Appellate Court has correctly and legally appreciated the evidence qua performance of 'Talb-i-Muwathibat' and Talb-i-Ishhad and has rightly non-suited the petitioner and this Court does not find the findings as arbitrary, capricious or out rightly absurd, for it to invoke its revisional jurisdiction.

11. Accordingly, for the reasons stated hereinabove, the present revision petition being devoid of merits is dismissed along with C.M. No. 328-A of 2007. No order as to costs. MH/529/P Revision dismissed.