1997 PLP 2847 (MLD)

Abdul Hai Memon for Respondent No.

1. Muhammad Munawar Khan for Respondents Nos. l to 4, 7; L.Rs of Respondents Nos. 9 to 11 and

13. Dates of hearing: 28th and 29th April, 1997. This is a first appeal filed by the Provincial Government under section 54 of the Land Acquisition Act, 1894, read with section 96 of the Civil Procedure Code, 1908, against the order of learned 1st Additional District Judge Nawabshah dated 30‑10‑1993 passed in a Reference No.68 of 1971 whereby decree dated 11‑3‑1984 arising out of an award under section 18 of the Land Acquisition Act was modified through an application filed under section 152, C.P.C. where, as' a consequence the appellants (respondents before the Additional District Judge Nawabshah) were directed to satisfy the decree and to pay decretal amount up to 30‑1‑1994. This order has now been impugned in the present appeal.

2. Appellants have also impugned alongwith this order dated 30‑10‑1993 the judgment and decrees dated 15‑2‑1984 and passed by the same Judge in the same reference on the grounds that amendment of decree had given a fresh right of appeal to the appellants. This proposition is vehemently opposed by the learned counsel for the respondents.

3. It is contended by Mr. Muhammad Munawar Khan that irrespective of the fact that an amendment was made in pursuance of section 152, C.P.C. the limitation for filing such appeal would run from the date of initial first judgment and decree which was passed in the year 1984 and not from the date of such amendments as through the impugned order only an accidental slip or omission was corrected by the trial Court. Reliance is placed on a judgment of this Court in the case of Land Acquisition Officer (B&R) Hyderabad v. Seth Allah Dino (1983 CLC 865) and Millat Tractors Limited v. Rahim Bux (PLD 1995 Lahore 377). In the case of Land Acquisition Officer a learned Single Judge Naimuddin, J. (as his Lordship then was) after referring to the cases of (1) Mt. Gopi Bibi v. Chanu Parsad Singh and others (AIR 1930 Pat. 142). (2) Deep Singh v. Rahunath Singh (AIR 1930 Oudh 463). (3) Pakkiri Muhammad Rowthers v. L. Swaminatha Mudaliar (AIR 1938 Mad. 573). (4) Governor‑General‑in‑Council v. Piramal Marwari. (AIR 1948 Pat. 179). (5) Thanuvan Appuknttan v. P.N. Gopala Piai and another (AIR 1969 Ker. 183). held as follows:‑

"

16. From the cases considered the following principles, in. my opinion appear to be well ‑established:‑‑ (i) Time for filing an appeal runs from the date of the judgment and the decree in spite of correction, variation or amendment thereof, unless the amendment is of such a nature that it affects the original judgment and the decree in material respect. (ii) If a decree is amended in material respect so as the rights, privileges, liabilities or obligations thereunder are varied, then the time for filing appeal will run from the date of such amendment or variation comes under attack by way of a ground in appeal. (iii) Amendment of the judgment and/or the decree under sections 151 and

152. C.P.C., by correction at a later stage would not give fresh starting point of limitation."

4. The above view was followed by a learned Division Bench of Lahore High Court in the case of Millat Tractors Limited (Supra) it was held inter alia that if decree is amended in some material respect and that amendment has the affect of creating some additional liability against the party, the limitation in that event may well be computed from the date of such amendment. In the instant case the amendment made in the original decree, in my humble view, does not amount to creating additional liability upon the appellants. In view of this settled law I have not permitted Mr. Jhamat Jethanand learned counsel for the appellants to agitate question on merits pertaining to the original decree. The next objection raised was that under section 54 of the Limitation Act read with section 96, C.P.C. no appeal would be competent if an order was passed under Section 152, C.P.C. Reliance was placed on order 43, C.P.C., I have perused section 54 of Limitation Act which states that the first appeal would lie to the High Court subject to the provisions of C.P.C., against the "original decree". According to order 43 rule 1, C.P.C., no appeal lies against an order passed under section 152, C.P.C. Likewise under section 96, C.P.C., appeal is provided strictly in accordance with the provisions of C.P.C. However, in alternate it was pleaded by Mr. Jhamat Jethanand that the present proceedings can be converted into revision application under section 115, C.P.C., as the appeal was filed within the period of 90 days. I do not see any reason not to allow conversion as some important question of law is involved. 1, therefore, converted this first appeal into Civil revision and heard Mr. Jhamat Jethanand learned counsel for the appellants and M/s Abdul Hayee Memon and Muhammad Munawar Khan, Advocates for the respondents.

5. The main controversy revolved against the impugned order whereby time was fixed by the learned 1st Additional District Judge for satisfaction of the decree while exercising powers under section 152, C.P.C. Following is the relevant portion of the impugned judgment which is subject of attack. "In this case, an award was passed on 15‑2‑1984 by this Court under section 18 of Land Acquisition Act. A decree was also prepared on 11‑3‑1984. The perusal of the award and decree mentioned above reveal that the same have been passed against Municipal Committee Nawabshah and Land Acquisition Officer, Nawabshah but the time within which this decree is to be satisfied has not been specified therein as required under section 82, C.P.C. An award in terms of section 26 ' (2)' of Land Acquisition Act, 1894 and ground therefore would be deemed a decree and judgment respectively within section 2 (2) and 2 (9) of C.P.C., 1908 and provisions of C.P.C., pertaining to execution of decrees and construing judgments will be applicable to such awards as held in PLD 1993 Karachi page 578, (5910). In view of the above reasons I allow this application. The following amendment shall be made in the decree dated 11‑3‑1984 after the sentence, the respondents to suffer costs to this reference, the following sentence be added in the decree with red ink. The respondents are directed to satisfy the decree and to pay the decretal amount to the applicants/DH upto 30‑1‑1994."

6. It was strenuously argued by Mr. Jhamat Jethanand that the trial Court/Additional District Judge was not competent to amend the decree under section 152, C.P.C., as the same does not fall within the scope of the said provision. According to the learned counsel the modification of the decree to the extent of adding specific date for its execution falls out side the term of clerical or arithmetical error, accidental slip or omission. Reliance is placed by him on the case of Haji Ishtiaq Ahmad and 2 others v. Bakhshaya and 7 others (1976 SCMR 420) and the case of Nizamuddin and 13 others v. Ch. Muhammad Saeed and 7 others (1987 CLC 1682). In the first case of Haji Ishtiaq Ahmad the trial Court while passing a decree under pre‑emption did not mention the time during which period the decretal amount/pre‑emption money should have been deposited therefore the plaintiff approached the trial Court under section 152, C.P.C. The learned trial Court allowed the application after referring to the case of Shah Wali v. Ghulam Din (PLD 1966 SC 983). In appeal, it was held by the Hon'ble Supreme Court that section 152, C.P.C., permits a Court to correct clerical or arithmetical errors in the judgment and decree or such errors arising from any accidental slip or omission but does not authorise the Court to supplement its judgment, decree or order. With this view as well as on other grounds petition filed by the plaintiff was dismissed. In Nizamuddin (1987 CLC 1682) a learned Single Judge of Lahore High Court Fazal Karim, J. (as his Lordship then was) followed the view in the case of Haji Ishtiaq Ahmad. The question whether a trial Court under section 152, C.P.C. could add a specific date for deposit of amount of award or compensation came up for consideration in the case of Land Acquisition Officer (B&R) Hyderabad v. Seth Allah Dino (1983 CLC 865) where a learned Single Judge of this Court Mr. Naimuddin, J. (as his Lordship then was) held that the amendment of a decree by providing time therein is only procedural in nature not affecting rights and obligations of parties. Reference was made to the cases of Thanuvan Appu Knttan v. P.N. Gopala Piliai and another (AIR 1969 Kerala 183). Non‑mention of the date of payment and its subsequent incorporation in the decree in view of section 82, C.P.C., was held in the aforesaid case to be an omission which was rightly corrected by the 1st Additional District Judge Hyderabad. I would also like to point out a recent case of the Hon'ble Supreme Court Syed Saadi Jafri Zainabi v. Land Acquisition Collector and Assistant Commissioner (PLD 1992 SC 472) where a decree was amended by this Court under section 152, C.P.C., on the ground that since at the time of passing original decree the amount of additional compensation as provided under section 28‑A of the Land Acquisition Act was not included, subsequently, on an application filed under sections 151 and 152, C.P.C., the omission was corrected and the amount of additional compensation was incorporated in the original decree thus enhancing the original decretal amount. The Full Bench of Honourable Supreme Court after referring to the case of Ram Singh v. Sant Singh and others (AIR 1930 Lahore 210) and Raj Bahadur Singh. v. Shatranjai (AIR 1942 Oudh 226) held that the failure to grant additional compensation as provided under section 28‑A while awarding compensation clearly amounts to omission due to accidental slip as in the normal course such compensation should have been granted to the appellant at the time of passing the decree. Following rule was laid down by the Hon'ble Supreme Court in the aforesaid case:‑‑ "

9. The Court has jurisdiction to correct clerical or arithmetical mistakes or errors caused due to accidental slip or omission in a judgment, decree or order. Depending on facts, it confers a wide discretion on the Court to correct, (i) clerical or arithmetical mistake, (ii) errors caused due to accidental) slip or omission in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant a relief which the party seeks, or where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or error by exercising power under section 152. "

7. Mr. Munawar Khan has also referred to section 82 of the C.P.C. where it is provided that where the decree is against the Government or against a Public Officer a time is to be specified in the decree within which it has to be satisfied and in case of its non‑satisfaction the Courts are required to report the case for orders of the Provincial Government. A plain reading of section 82, C.P.C. clearly indicates that the Court while passing a decree against the Government is bound to specify a period within which the decree is to be satisfied. In my view, it was an omission on the part of the trial Court that the time was not specified which was subsequently corrected. I may also add here that initially award was passed by the Land Acquisition Officer in the year 1971 which came up before the Court of District Judge as a Reference under section 18 of the Land Acquisition Act and was finally decreed on 15‑2‑1984 when the amount was still outstanding. It is a clear case of hardship. The provisions of Land Acquisition Act require speedly disposal of determination of such disputes and an early payment. Recently, Hon'ble Supreme Curt in the case of Syed Saadi Jafri Zainabi (supra) held that the purpose for insertion of section 28‑A in Land Acquisition Act was to discourage the tendency to delay the payment of compensation in time and to ensure that the party whose property has been acquired is duly compensated without unnecessary loss of time. This Court is informed that still a huge amount of rupees one crore is pending against the appellants.

8. Next it was contended by Mr. Jhamat Jethanand that learned Additional District Judge was not competent to amend the decree as the same has merged with the orders of this Court and it was the decree of this Court in the field which could not be amended by the trial Court under section 152, C.P.C.,. Reliance was placed on the case of Maulvi Abdul Qayyum v. Syed Ali, Asghar Shah and 5 others (1992 SCMR 341) and the case of In the Matter of Dinajpur Talkies Ltd. (PLD 1965 Dacca 122). The is no cavil to the provision that once an order is passed by the appellate Court which remains in the field and the original order merged in the same. In the instant case previously filed First Appeal No.39 of. 1984 was dismissed by another learned Judge of this Court Abdul Rahim Kazi, J. (as he then was) vide judgment dated 8‑12‑1991 which dismissal was purely on technical ground namely that an Assistant Advocate General is not competent to file appeal on behalf of the Provincial Government and secondly that the appellant No.3 Municipal Committee Nawabshah has no locus standi to file the main appeal. Against this petition seeking leave to appeal filed before the Honourable Supreme Court by the appellant was also dismissed but on the ground of limitation. In my view the amendment made by the Additional District Judge is of such nature that it does not in any manner touch the merits and legal question decided by this Court. No doubt, lower Courts are not competent to amend the decree if the same is endorsed or affirmed by this Court but in the circumstances of this case in my view the trial Court has rightly made addition of giving specific time in the impugned order.

9. It was also argued by Mr. Jhamat Jethanand that the application under section 152, C.P.C., was filed after a lapse of 8 years and therefore it was time barred under Article 181 of the Limitation Act. He has referred to the case of Fazal Din v. Rehabilitation Commissioner (Lands) and 2 others (1987 CLC 1053) where it was held by a learned Single Judge of Lahore High Court that the application filed under section 152, C.P.C., was not maintainable for the reason that the application was filed after excessive delay and that the applicant had not acted diligently and was found guilty of inexcusable indolence. To meet this objection Mr. Muhammad Munawar Khan has referred to the Division Bench case of Peshawar High Court namely Muhammad Jalat Khan and another v. Ghulam Sarwar (1986 CLC 552). In this case application under section 152, C.P.C., was filed after a lapse of 8 years where their Lordship held that no limitation period is prescribed for such application seeking correction of an accidental omission or clerical error. It was further held that the Courts are empowered to even suo motu make such corrections or to undone errors made in their judgments. Section 152, C.P.C., provides that the Court which has passed the judgment may suo motu correct any arithmetical or accidental slip or may correct any omission suo motu. In my view none of the statute has provided any limitation on the exercise of a Court to suo motu exercise its power. In view of this matter even if their would have been no application from the residents' side the trial Court was competent to correct error and to bring the decree in conformity with the provisions of section 152, C.P.C.

10. In the end Mr. Muhammad Munawar Khan has tiled his statement in writing with a copy of a letter dated 28‑6‑1994 written by the Administrator Municipal Committee in order to convassing that the part payment has been made by the appellant and, therefore, they cannot turn around to challenge the impugned decree. This is a question of Act which I am not inclined to entertain at the revisional stage. It is open to the respondent to raise such a plea in any other forum, if permissible.

11. As a result of the above discussion and as a consequence of conversion of these proceedings into Civil Revision, I have not found any jurisdictional error committed by the learned trial Court. Accordingly, the appeal converted into revision petition is dismissed alongwith the listed application with no order as to costs. A.A./G‑31/K Revision dismissed.