P L D 1982 Lahore 303 _ (PLP)

This is an application under section 152, C. P. C. for rectification of clerical error and accidental slip in the judgment dated 11‑2‑1981 passed by my learned brother Mr. Justice Zakiuddin Pal (as he then was) in Writ Petition No. 2320 of 1978.

2. The facts relevant for the disposal of the writ petition may be briefly stated. The respondent No. 2 filed a suit for grant of maintenance at the rate of Rs. 350 per mensem before the Family Court, Lahore. The suit was dismissed by the trial Court on 27‑11‑1975. The judgment and decree of the trial Court was assailed through an appeal before the learned District Judge, Lahore. The appeal was accepted and respondent No. 2 was found entitled to receive maintenance allowance at the rate of Rs. 300 per mensem, w. e. f. 1‑6‑1972, from the date of institution of the suit. The validity of the judg ment and decree of the appellate Court was called in question by Writ Petition No. 2320 of 1978, which was accepted on 11‑2‑1981, on the ground that the memorandum of appeal was insufficiently stamped and, therefore, it was never properly presented. It was held that the judgment and decree passed in such an appeal would have no bearing unless deficiency in payment of court‑fee is made up. It was further held that "The amount of court‑fee on the memorandum of appeal in this case is to be paid according to section 7(1) and Article 1 of Schedule I of the Court Fees Act". According ly, the case was remanded to the learned District Judge, Lahore for deciding afresh in accordance with law. A direction was issued that respondent No. 2 be granted time in the interest of justice to make up the deficiency in the payment of court‑fee and in case the needful is done in that behalf the appeal may be decided on merits according to law.

3. It is stated at the bar by Mr. Raza Hussain Shamsi, the learned counsel for the applicant, that in': pursuance of the aforesaid judgment of this Court the trial Court passed an order on 13‑6‑1981 directing therein respondent No. 2 to make up the deficiency in the court‑fee before 8‑7‑1981. Accord ingly, respondent No. 2 made up the deficiency on 7‑7‑1981.

4. Mr. Raza Hussain Shamsi submits that the ratio decidendi of this Court's judgment in Writ Petition No. 2320 of 1978 is whether there was a validly constituted appeal in the absence of proper court‑fee, and on that point the case was decided following the judgment of a Division Bench of this Court in Muhammad Anwar Khan v. Additional District Judge, Rawalpindi P L D 1978 Lah. 716, wherein it was specifically mentioned that paragraph (1) of section 7 of the Court Fees Act is applicable to a suit for ascertained sum and that claim for future maintenance is governed by para. (II) of section

7. The learned counsel for the applicant further submits that the learned Judge in Chamber was clearly applying the law laid down in Muhammad Anwar Khan's case and, therefore, the observations made in para. 6 of the judgment that the amount of court‑fee on the memorandum of appeal was to be paid under section 7(I) and Article 1 of Schedule I of the Court Fees Act was either by typographical/Clerical mistake or it was due to an accidental slip and thus can be rectified or clarified for the guidance of the lower appellate Court.

5. I have given my anxious consideration to the submissions made by the learned counsel for the applicant and have‑ perused the judgment of this Court sought for rectification. It is clearly stated in para. 4 of the judgment that "the suit for maintenance filed by respondent No. 2 involves ascertained sum and .that being so, provisions as contained in section 7 of the Court Fees Act would be applicable and amount of ‑court‑fee will b, computed under Article 1 of Schedule I of the Court Fees Act". It is further observed in para. 6 of the judgment that the court‑fee is to be paid according to section 7(I) and Article 1 of Schedule I of the Court Fees Act. It is not disputed that section 7(1) of the Court Fees Act applies to a suit for an ascertained sum and since the learned Judge in Chamber has specifically observed that the suit for maintenance filed by respondent No. 2 involves ascertained sum, I do not find either any typographical/clerical error which can be considered to be a slip, mistake or omission on the part of the learned Judge in Chamber, who passed the judgment.

6. The learned counsel for the respondent has opposed the application and submitted that there is no error apparent on the face of record and that when the judgment is read in its entirety, the intention of the Court is manifest that the court‑fee was to be paid according to section 7(1) and Article 1 of Schedule I of the Court Fees Act.

7. I am not inclined to agree with the submissions made by the learned counsel for the applicant. The provisions of section 152, Cr. P. C. are con fined to the correction of the types of errors mentioned therein and not to errors which are contentions in nature. Every mistake made by a Court cannot be assumed to be on account of an accidental slip. The direction sought to be rectified is in accordance with the direction of the learned Judge in Chamber as is apparent from para. 4 of the judgment and contains no clerical or arithmetical mistake. This being so, I do not find any error apparent on the face of the record so as to bring the case within the mischief 1of section 152, C. P. C.

8. In view of the above, the application fails and is hereby dismissed. The parties shall, however, bear their own costs. S. Q. Application dismissed.