2005 PLP 1525 (MLD)

On 7-2-2005 this Constitutional petition was fixed for Katcha Peshi along with C.M.A. No.171 of 2005 for orders. After hearing the counsel for the petitioner and for the respondents, the following order was passed: (1) Granted subject to all just exceptions. (2) Admit Notice. (3) The application is allowed, by consent, with the observations that after adjustment of the rent deposited by the petitioner in Miscellaneous Rent Case, bank guarantee of difference of fair rent fixed by Appellate Court. worked out as Rs.78,97,300 be furnished by the petitioner with the Nazir of this Court within ten days from the date of this order and also deposited of future rent @ Rs.1,81,440 per month with the Nazir from February, 2005 till the final adjudication of dispute between the parties. Now, the learned counsel for respondents Nos.3 to 14 has filed the listed application being under section 152, C.P.C., duly supported by his own affidavit, praying that the above order dated 7-2-2005 be amended and the petitioner be directed to deposit with the Nazir of this Court a sum of Rs.78,97,300, being difference of fair rent fixed by the Appellate Court instead of furnishing the Bank Guarantee. To reach at just and fair conclusion, in my opinion, it would be appropriate to reproduce paragraphs 3 to 5 of the affidavit, filed in support of this application, wherein the learned counsel for respondents Nos.3 to 14 has stated as follows:-- "(3) That, I also gave my consent for staying the impugned judgment subject to furnishing by the petitioner-Bank Guarantee for the arrears of rent by the bank other than the petitioner and regular deposit of the rent as fixed by the Appellate Court with the Nazir of this Hon'ble Court. However, after consulting his clients Mr. Kamal Azfar learned counsel for the petitioner made submission that the petitioner is ready to deposit the arrears of the fair rent with the Nazir of this Hon'bje Court instead of furnishing the Bank Guarantee issued by the Bank other than the petitioner and I consented to the said proposal of the learned counsel for the petitioner." (4) That this Hon'ble Court asked what is the correct amount of the arrears of fair rent, I requested for some time to calculate the arrears of fair rent and accordingly this Hon'ble Court asked me to submit the statement of the arrears of fair rent after tea break. (5) That, I calculated the arrears of fair rent and after tea break submitted the same before this Hon'ble Court and this Hon'ble Court gave the said statement to the Stenographer of this Hon'ble Court for incorporating the said amount in the order announced by this Hon'ble Court but due to accidental slip in the order instead of depositing the said arrears of fair rent in cash, furnishing of Bank Guarantee for the said amount has been mentioned." In the counter-affidavit, filed by the petitioner, while contesting the maintainability of this application, being beyond the scope of amendment and correction under section 152, C.P.C., having been confined only to the extent of clerical and arithmetical mistakes whereas no such mistake has been pleaded in the application nor in supporting affidavit, the petitioner has stated that: " .deposition of arrears of fair rent with the Nazir of this Honourable Court instead of the Bank Guarantee was an option but forward by the counsel before the Honourable Court and this Honourable Court preferred to order furnishing of Bank Guarantee which order has been complied with." I have heard the learned counsel appearing for the petitioner as well as respondents Nos.3 to 14 who have mainly reiterated what has been stated in the aforesaid respective affidavit and the counter-affidavit. Additionally, while the learned counsel for respondents Nos.3 to 14 urged that through the prayer in this application he wants to protect the interest of the respondents by having the amount of arrears of rent deposited in profit-yielding securities, learned counsel for the petitioner submitted that, in compliance to the order dated 7-2-2005, the Bank Guarantee has been duly furnished with the Nazir of this Court who has accepted the same and the respondents bona fide interests would in no way be jeopardized since the Bank Guarantee furnished is from the petitioner Habib Bank, being the second biggest bank in Pakistan, which is duly encashable in the event of final decision by this Court in favour of the Respondents. He further expressed his no objection if the main Constitutional petition is fixed and adjudicated upon at an early date. In the foregoing perspective, the contentions of the learned counsel for the petitioner and respondent Nos.3 to 14 have been considered in the light of the provisions of section 152, C.P.C. which lays down that:-- "Clerical and arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slips or omission at any time be corrected by the Court either of its own motion or on the application of the parties." From the above, it is to be noted that provisions of section 152, C.P.C. are confined to the correction of types of errors mentioned therein. Correction of any other types of error can only be obtained through appeal or review in accordance with law. It is clear that the A error should not be contentious in nature and should be apparent from the record. Further, the use of word `accidential' shows that where the order is deliberate, section 152, C.P.C. is inapplicable. Where the order represents the intention of the Court, it cannot be said to be mistaken. In view of the above legal position with regard to section 152 C.P.C., reliance is placed on a judgment of the Hon'ble Supreme Court of Pakistan reported as Ishtiaq Ahmed v. Bakhshaya (1976 SCMR 420), relevant extract of which is reproduced .below:-- 'It will be seen that this section permits the correction of clerical or arithmetical mistakes in judgments and decrees etc., or of errors arising from any accidential slips or omission, but does not authorize the Court to supplement its judgments, decrees or orders by direction which require application of mind, and have the effect of taking away rights which may have otherwise accrued to one party...." In view of the foregoing discussion and reasons, order dated 7-2-2005 being amply clear and unambiguous and there being no clerical and arithmetical mistake arising therein from any accidential slip or omission, the provisions of section 152, C.P.C. cannot be invoked in this matter. This application therefore, fails and is hereby dismissed. However, in the interest of justice in terms of early final disposal of the main Constitutional petition, it is directed that it be fixed for final hearing within one month along with Constitutional Petition No.30 of 2005. C.M.A. No.485 of 2005 stands disposed of. H.B.T./H-53/K Petition dismissed.