P L D 1962 (W (PLP)

KAYANI C. J.‑One Karam Bakhsh was owner of landed property and a house in Patiala. In 1944, he made a gift of half of the landed property, equal to 111 bighas 17 biswas, and one‑third of the house in favour of his daughter, Mst. Rahmat, who was then married to Hafiz‑ud‑Din respondent. Karam Bakhsh died in 1944 and Mst. Rahmat in 1945, while Hafiz‑ud‑Din remained in occupation of Mst. Rahmat's property. In 1946, the appellants, who are collaterals of Karam Bakhsh, filed a suit for a declaration that the gift was Invalid. This was dismissed in January 1947 on the ground that the property being non‑ancestral, the collaterals had no locus standi. .

2. When the parties came to Pakistan, a mutation In respect of Mst. Rahmat's property was attested in 1954 so as to give one -half of it to her husband, Hafiz‑ud‑Din, and the other half to the collaterals, under the ordinary Muhammadan Law. His appeal and revision having been dismissed, he brought a writ petition, which was accepted by a learned Single Judge on the ground that "a judgment inter partes finally determined the rights of the parties and constitutes res judicata, not having been appealed against". The collaterals have come in a Letters Patent Appeal.

3. Apart from the judgment on which the learned Single Judge has relied, the legal position, as stated in para. 46 of the Rehabilitation Re‑settlement Scheme, is that "the cases of inheritance of refugee right‑holders in regard to the agricultural property, where the parties are Muslim, shall be decided according to Shariat Law". This was interpreted by a Full Bench in Umar Daraz Ali v. Khurshid All (P L D 1960 Lah. 834) to mean that "in cases in which mutations have either not been entered or not sanctioned" (in East Punjab) "the Rehabilitation authorities in Pakistan had to determine the heirs off the deceased right‑holder for making allotment of land to them. We were originally inclined to think that the qualifying word `refugee' in para. 46 had in mind a person who had left India and crossed over to Pakistan and that it was In respect of the inheritance of such right‑holders that the Rehabilitation authorities had to take a decision according to the Shariat. The various Instructions given by the Rehabilitation authorities and cited In the Full Bench case however, make it clear the Full Bench has correctly interpreted the intention of para. 46.

4. The judgment of Patiala, however, prevents the appellants from claiming any relief. As between the parties the finding that the appellants are not entitled to the property is now conclusive. It would have been conclusive in Patiala, and para. 46 of the Rehabilitation Re‑settlement Scheme says nothing In that behalf. It merely extends Muslim law to cases where a decision has not been taken in respect of the inheritance of any party, and the Full Bench judgment would indicate that it applies to cases where the revenue records have not been brought up to date in the ordinary course. Here a positive decision has been given in a Court of law and it would seem an improper extension of the meaning of para. 46 to apply it to decrees of Courts. On the contrary, a separate provision was made for decrees in para.

52. This paragraph requires that a special Additional Rehabilitation Commissioner will deal with such applications for claims to land allotment as are based on registered deeds and decrees of Civil Courts, effect to which had not been given in the revenue records of the prescribed territory of India due to the perturbed conditions prevailing in those areas before independence. This makes it clear that paragraph 46 does not apply to decrees.

5. As a matter of fact, the respondent did seek relief under para. 52 by an application dated the 22nd of September 1954, but the Additional Rehabilitation Commissioner dismissed it on the 30th of September 1957, on the ground that "the petitioner had not produced any judgment of the Court showing that the land in dispute had been decreed in his favour". This is quite correct so far as it goes, because it was the claim of the appellants which had been dismissed, and nothing had been decreed in the respondent's favour. It was overlooked, however, that the appellants being the only heirs in the field opposed to the respondent's customary right as a husband to inherit his wife, the dismissal of the suit indirectly establishes the husband's claim to inherit. It is true that para. 52 requires effect to be given to the decree and no positive effect can be given to the present decree, but if the claim of the appellants is upheld, then it would amount to giving a contrary effect to the decree.

6. As regards this decree, two objections were taken. The first was that the judgment of the Patiala Court had not been produced before the Additional Rehabilitation Commissioner. It is true that this is not clearly stated in the order of the Commissioner, but the statement in the order that "no judgment of Court show ing that anything had been decreed in the petitioner's favour was produced" does not exclude the production of a judgment which merely dismisses the appellants' claim, without upholding the respondent's. The application to the Additional Rehabilitation Commissioner was made on the 22nd of September 1954, as the copy of the order shows, and the copy of the judgment of the Patiala Court was delivered to the respondent on the 16th of March 1954. This means that the respondent was in possession of the copy before he applied to the Additional Rehabilitation Commissioner. Annexure 'C', which is a copy of the mutation proceedings, also shows that this copy was produced before the mutation officer on the 18th of August 1954. There is no reason, therefore, why it should not have been produced before the Additional Rehabilitation Commissioner.

7. The second objection is that para. 52 was deleted in 19591 and is, therefore, not operative. The reply to this objection is, firstly, that at the time of the Additional Rehabilitation Commissioner's order in 1957 it was operative, and, secondly, that the deletion of para. 52 does not confer, under para. 46 the power of upsetting decrees also.

8. We, therefore, hold that the Patiala judgment operates against the appellants as res judicata.

9. There now remains the question whether we can alter our, judgment after having pronounced it orally. Having beard the parties on the 20th of October 1961, we were of the opinion that the appeal should be accepted and we told the learned counsel that it would be accepted. We did not, however, dictate or sign any order. On the following day, when we read the order of the learned Single Judge again and reconsidered the question that h&` had rejected the petition on the ground of res judicata, we decided to hear the parties once again. This was done and a further opportunity was given to the appellants' counsel to study the question whether a re‑hearing was permissible in the circumstances.

10. The law and the rules, to which we were referred, may be reproduced below :‑ Order XX, rule 3.‑"The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152 or on review." (Section 152 relates to accidental slips or omissions.) Order XLI, rule, 31."The judgment of the Appellate Court shall be in writing and shall state‑ (a) the points for determination ; (b) the decision thereon ; (c) the reasons for the decision ; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein." Order XLIX, rule 2."Nothing in this Schedule shall be deemed to limit or otherwise affect any rules in force at the commencement of this Code for the taking of evidence or the recording of judgments and orders by a High Court." Order XLIX, rule 3.‑"The following rules shall not apply to any High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely : (1) * * * * * * (2) * * * * * * (3) * * * * * * (4) * * * * * * (5) rules 1 to 8 of Order XX." Rules and Orders of the High Court, Volume V, Chapter 4‑H Rules of Procedure in Appeals, Para. l.‑"Judgment may be written by the Judge in English or delivered orally, and in the latter case a note thereof in writing in the English language, or short‑hand, shall be taken by an officer of the Court In attendance for the purpose. The note so taken shall be written out or typed in full by the officer by whom it was taken, and shall be submitted by him to the Judge for correction. After being corrected by the Judge, where necessary, it shall be filed as the judgment of the Court."

11. It was argued by learned counsel for the appellants that since according to the rules of this Court judgments could be delivered orally, the delivery of judgment by us on the 20th of October 1961, was complete and there was no provision for altering it. We pointed out, however, that for oral delivery it is necessary that a note thereof in writing or short‑hand shall be made immediately and since no such note was made or dictated by us, we should only be understood to have indicated that this was going to be our decision and not to have delivered a judgment. Further, Order XX, rule 3, made it possible for an ordinary Court to alter its judgment before signing it, because the pro hibition as to alteration becomes operative only after it has been signed. Learned counsel for the appellants argued that the Code of Civil Procedure did not apply to the High Court. On the assumption that it did not apply, it will be noticed that since the rules of procedure governing this Court do not impose any bar on the alteration of a judgment after it has been pronounced, it may be safely assumed that a power which the law gives to a subordi nate Court must inhere in the High Court also. But we do not see why the Code of Civil Procedure should not apply. Apart from the clear provisions of section 117, which make the Code applicable to the High Courts, subject to certain limitations, the very fact that Order XLIX enumerates the rules which do not apply to the High Court proves that other parts are applicable. As regards rules 1 to 8 of Order XX, it must have been noticed that they do not apply to the High Court "in the exercise of its ordinary or extraordinary original civil jurisdiction". This would mean that they apply to the appellate jurisdiction. This was exactly what a Full Bench said in Allah Rabul Almin v. Ganga Sahai (A I R 1947 All. 211). That was a case in which a Single Judge had delivered judgment by dismissing a revision petition and had signed the judgment. After this had been done but before the judgment was sealed with the seal of the Court‑‑a ministerial act one of the counsel, who had been absent when the case was called, appeared and prayed for a re‑hearing. It was argued by him that the judgment was Incomplete because it had not been sealed and that rule 3 of Order XX was no bar because that rule did not apply to the High Court. The Full Bench repelled this contention and pointing out that under section 117 of the Code the provisions thereof were applicable to all High Courts, subject to certain limitations expressed therein, they held that since the judgment had been signed by the Single Judge, he could not thereafter alter it. It is quite obvious on this reasoning that if the judgment had not been signed it could have been altered.

12. In Jai Karan v. Panchaiti Akhara Chota Nava Udasi Nanak Shahi (A I R 1933 All. 49), Sulaiman, C. J., after hearing arguments, had dictated the order in the presence of the counsel for parties. One of the counsel then made a request to him not to sign the judg ment before reconsidering the question of limitation. Sulaiman, C. J., however, signed the order inadvertently when it was put up before him with a number of other orders. On the matter coming to his notice again, he passed the following order: ‑ "In the exercise of my inherent jurisdiction I set aside the order and direct that the case should be put up for further hearing."

13. In this case the judgment had been pronounced and dictated and only the signing was held to be inadvertent.

14. Our attention has been drawn to a similar provision in section 369 of the Code of Criminal Procedure which states that "no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error." In other words, a judgment is not complete until it has been signed and it can be altered before it has been signed.

15. In view of the finding that the Patiala judgment operates against the appellants as res judicata, we dismiss this appeal with coats. A. H. Appeal dismissed.