1994 PLP 16 (SCMR)

Nemo for the Remaining Respondents. Date of hearing: 11th October, 1992. MUHAMMAD AFZAL ZULLAH, CJ. ‑‑‑Leave to appeal has been sought in this matter arising out of a partition suit against the dismissal by the High Court of petitioner's Civil Revision seeking reversal of an order directing a clerical correction. The impugned judgment shows how the correction was made. The relevant part reads as follows:‑‑ "Sultan Akbar plaintiff sought possession through partition of 2/16 share in the building in dispute bearing No. B‑I/9 comprising four shops etc‑ The defendants including the present petitioner Muhammad Iqbal resisted the suit but "the trial Court passed a preliminary decree in favour of the plaintiff upholding his title to the extent of 2/16 of the four shops which amounted to 1/2 of one of them. The defendants' appeal failed but the learned Additional District Judge by an accidental slip remarked in the relief clause that the respondent Sultan Akbar owned 2/16 of one of the shops signified by letter `C'. He, however, in other parts of the judgment correctly described his share to be 2/16 of all the four shops (being equivalent to 1/2 of shop `C' held by him in his exclusive possession). Noticing this incongruity, Sultan Akbar prayed for its correction." The learned Additional District 'Judge had relying upon his own findings recorded at least three paragraphs of his judgment held that Sultan Akbar was entitled to 1/2 of shop `C' but when stating his share as 2/16 in the aforesaid shop obviously an accidental or typing mistake had occurred. Accordingly, the correction was made. The High Court when rejecting the Revision Petition held that "in the facts and circumstances of the case, it appeared hard to substantiate the revision petition. Paras 12, 17 and 20 of the appellate judgment unmistakably allowed 1/2 of shop `C' to the respondent. Obviously it was not equivalent to 2/16 of the singular shop (though it could be of the four shops mentioned in plaint). The inconsistency, or for that matter the incongruity was floating on the face of the record and was result of an unintentional mistake. This view was based on the fact that Sultan Akbar had purchased 1/2 of this shop vide sale‑deed (P.2) dated the 10th of August, 1985, for a sum of Rs.40,000.00 from its old owner. The impugned order of correction is unassailable. As is apparent from the afore‑resume of the facts and orders passed in this case, the only question which could be agitated by the appellant was regarding correction of the relevant error. This obviously, as has been held by the High Court, is unassailable and there is no ground for grant of leave to appeal on this question. However, the learned counsel stated the following question for examination and for which purpose leave to appeal petition has been filed. "Respondent No.1 brought a suit for partition of built up property situate in Gujar Khan town. A preliminary decree was passed. He claimed to be in possession, which was found against him. The question of law is whether a co‑sharer through purchase who is not in possession and falsely claims to be, is entitled to bring a suit for partition without first seeking a decree for joint possession." This question obviously was not raised before the High Court. There is no justification for permitting the petitioner to raise it now. Moreover, it is more of a technical nature than of any substantial effect on the merits of the case. Be that as it may, the order passed by the High Court impugned in this petition does not suffer from any infirmity either of law or fact. This petition is liable to be dismissed and we order accordingly. It needs to be noticed that the judgment in this case was reserved mainly for the reason that both the learned counsel had shown willingness to help their clients to enter into a meaningful negotiations for settlement out of Court. The learned counsel for the petitioner was contacted by the office several times but it appears that due to adamant attitude of the petitioner himself no progress was made in the then expected compromise. This Court could not wait longer merely for the reason that the parties could in this case were likely, to reach a settlement out of Court. However, despite order of the dismissal of the petition for leave to appeal if the parties even now reach an amicable settlement out of Court they may rile an application for review. With this observation this petition stands dismissed. AA./M‑1837/S Leave refused.