Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: HOSHANG DASTUR AND OTHERS VS Respondent: EDDIE P., BHARUCHA
P L D 1968 Karachi 761
P L D 1968 Karachi 761
Before Qadeeruddin Ahmed and Dorab Patel, JJ
HOSHANG DASTUR AND OTHERS‑Appellants
versus
(1) EDDIE P., BHARUCHA AND (2) CUSTODIAN OF ENEMY PROPERTY‑--Respondents
Letters Patent Appeal No. 85 of 1967, decided on 8th February 1968.
Letters Patent (Lahore), Cl. 10‑Order of Single Judge refusing to correct an error being an accidental slip‑Judgment within meaning of Cl. 10 and appealable thereunder.
21 Cal. 475; Ram Rakha Mal v. Dina Nath A I R 1941 Lah. 419; Triloki Nath Dilsinger A I R 1947 All. 22 and Kanhaiya Kashiram Gujar v. Hiraji Mohansingh Rajput and others A I R 1942 Nag. 18 ref. Ashfaq Hussain for Appellant. Ramchand Dingomal and Ali Ahmad Fazeel for Respondents.
Date of hearing: 8th February 1968.
JUDGMENT
QADEERUDDIN AHMED, J.‑This Letters Patent Appeal is directed against the judgment of our learned brother Mr. Justice Kadir Nawaz S. Avian, dated the 12th of April 1967, by which he dismissed the application of the present appellant for .correction of his judgment and decree under section 152, C. P. C.
2. The facts, which form the' background of this appeal, briefly stated, are that the present appellant filed a suit for specific performance of a contract of sale or lease and for damages against respondent No. 1 and five other defendants, who were pro forma defendants. After the institution of the suit, it was found that respondent No: 1 was residing in India. On that basis, an application was made by his attorney that he had become an enemy in terms of the Defence of Pakistan Rules. In view of that objection, an application was made to implead the Custodian of Enemy Property. He was impleaded, and he adopted the written statement of respondent No. 1. On the basis of the pleadings of the parties sixteen issues had been framed. The first issue was as follows:
"Is the suit incompetent and not maintainable." .
Under this issue a preliminary objection was taken that the suit was not maintainable. Mr. Fazeel says that the basis of that objection was clause 5 of the Enemy Property (Custody and Registration) Order, 1965, That clause is as follows :‑
"All enemy property vesting in the Custodian shall be exempt from attachment, seizure or sale in execution of a civil Court decree or orders of any other authority."
The objection prevailed and the suit of the plaintiffs/appellants was dismissed. They went in Letters Patent Appeal, bearing No. 167 of 1966, which was heard by a Division Bench of this Court. The appeal yeas accepted with the 'observations that the suit was maintainable, and that the question as to what the judgment and decree were to be in the ‑ suit was a different matter. The Bench specifically observed at the end of the judgment as follows:‑--
"We would, therefore, set aside the order of the learned Single Judge and direct that the case shall be remanded to him (Mr. Justice Kadir Nawaz S. Awan) for a fresh decision on all the issues struck in the case other than Issue No. 1, which has been decided by us in favour of the plaintiffs/respondents. "
Thereafter, the suit proceeded and has., been decreed by learned Single Judge as follows:‑
"Decree shall therefore follow against defendant No. 1 for specific performance of the contract for lease dated 30‑8‑1956 with option to purchase the said plot and for a sum of Rs. 1,55.000 in addition to monthly damages at the rate of Rs. 5,000 p.m. from date of suit till execution of lease deed. Defendant No. 1 to bear the costs of the plaintiffs. Suit against other defendants is dismissed with no order as to costs''
4. Respondent No. 1, who was defendant No. 1 in the suit, preferred an appeal against the judgment and decree of the learned Single Judge. That appeal is L. P. A. No. 72 of 1967. Thereafter, the plaintiff made an application under section 152 of the Civil Procedure Code for amendment of the judgment and decree of the learned Single Judge and made a prayer in it as follows :‑' .
"Wherefore, it is humbly prayed, that, in the interests of justice, this Hon'ble Court may be pleased to correct the accidental errors which have crept into the judgment and specially to make ‑ it clear that the decree granted in favour of the plaintiffs is against both defendant No. 1 and defendant No. 7."
This application was opposed by defendants No. 1 and No. 7 and was dismissed by the learned Single Judge by his order, dated the 12th of April 1967, as mentioned above. The plaintiffs have now Come in Letters Patent Appeal against that order. It is before us now. . 5. It has been opposed by Mr. Fazeel on' the following rounds :‑--
(1) There was no error or accidental slip in the judgment and decree of the learned Single Judge. On the contrary, the conclusion had been arrived at deliberately; therefore ' section 152, C. P. C. was not applicable.
(2) There was in the judgment, if at all, the question of applying a principle for deciding whether a decree could be passed against defendant No. 7 or not ; therefore; there is no .question of applying section 152, C. P. C. The principle which was applied, according to counsel, is contained in clause 5 of the Enemy Property (Custody and Registration) Order; 11965.
(3) The order made by the learned Single Judge, dated the 12th of April 1967, is not a judgment therefore, not appealable under clause 10 of the Letters Patent.
6. In so far as the first objection is concerned, we find the following observations of the learned Single Judge in the order .‑
"Perusal of. the judgment shows my intention to pass the decree and grant the reliefs claimed by the applicants against both defendants Nos. 1 and 7. Former is an enemy and the property under dispute has been declared as enemy property and now vests in defendant No. 7. In view of this position defendant No. 1 cannot specifically perform the contract, i.e. relief granted to the applicants. I, therefore, agree with the applicants that this is an error arising from accidental slip or omission in the judgment mentioned above."
Proceeding further the learned Single Judge has pointed out that Mr. Dingo Mal had opposed the application for amendment on the ground that the amendment would adversely affect the interest of defendant No. 7, although the suit had been dismissed interest him. This learned Single Judge proceeds to consider that argument as follows .:‑
"In support of his arguments he (Mr. Dingo Mal) had referred me to cases reported in 21 Cal. 476, A I R 1941 Lah. 41,9 and A I R 1947 All. 22. Appeal has already been filed by defendant No. 1 and it is still pending."
Accepting the above contentions, he dismissed the application, and the plaintiffs/ appellants have come in Letters Patent Appeal to this Court.
7. Mr. Fazeel has, in spite of the above observations of the learned Single Judge, argued that there was no accidental slip or error, and in support of this contention has drawn our .attention to the corrections made in his judgment by the learned Single Judge in his own handwriting. We have reproduced the relevant portion, to which Mr. Fazeel has drawn our attention, .as it appears after the correction. Before the correction, it was as follows :‑
"Decree shall therefore follow for specific performance of the contract for lease dated 30‑8‑1956 with option to purchase the said 'plot and for a sum of Rs. 1,55,000 in addition to monthly damages at the rate of Rs. 5,000 p.m. Defendant No. 1 to bear the costs of the plaintiffs."
8. The changes to which Mr. Fazeel has in particular drawn our attention are the additions ‑in the first line of the words "against defendant ' No. 1" and then to the wards "suit against other defendants is dismissed with no order as to costs". He has emphasized that reference to defendant No. .1 in the hand writing of the learned Single Judge without any reference to defendant No. 7, and the words that the suit was to be dismissed against the other defendants show that the learned Single Judge deliberately excluded defendant No. 7 from the effect of the Judgment and decree. This argument, if seen against the .observation of the learned Single Judge himself, would amount to taking the stand that, while making an accidental slip, the learned Single Judge was expected to carry out the correction flawlessly. The argument is directly inconsistent with the observations made by the learned Single Judge better than whom, nobody else could understand his mind. We are, therefore, not impressed by the first objection of Mr. Fazeel acid overrule it.
9. The second contention of Fazeel is in one respect allied with the first objection, and, in another respect, contrary to the decision of the Division Bench given in the Letters Patent Appeal No. 167 of 1966. It is allied to the nature of the first objection, because it is intended to press the argument that a principle was applied and no slip was made. We cannot accept this contention, because the learned Single Judge has explained that an accidental slip had occurred. In so far as reference to clause 5 of the Enemy Property (Custody and Registration) Order, 1965 is concerned, the Division Bench has, according to. counsel himself, decided Issue No. 1 in favour of the plaintiffs/ appellants. Here it should be noted that, in the written statement, no defence was raised by defendant No. 7 (respondent No. 2 in these proceeding) that a decree could not be passed, against him, or that enemy property vesting in him was exempt from attachment, seizure or sale in execution. This being the situation, there is no question of the learned Single Judge applying any principle of clause (5) of the Enemy Property (Custody and Registration) Order, 1965. We accordingly overrule the second objection.
10. The third objection also does not impress us, because, according to us, the order of the learned Single Judge refusing to amend the judgment and decree in accordance with his expressed intention, merely on the ground that the interest of defendant No. 7 was going to be adversely affected by the amendment, or that it was necessary for the plaintiffs to either file cross‑objections in the appeal which had been preferred by respondent No. 1, or to prefer an appeal on merits, amounts to a decision which is a judgment within the meaning of clause 10, of Letters Patent. Mr. Fazeel has referred to the‑ case of Kanhaiya Kashiram Gujar v. Hiraji Mohansingh Rajput and, others (A I R' 1942 Nag. 18) in support of his contention that dismissal of a Review Application does not amount to a judgment; and contented that therefore, dismissal of an application under section 152, C. P. C. should, on the same analogy, not be considered to be a judgment. A reference to the judgment, on which counsel has relied, shows that an application for review was made with the intention of getting amended a decision given in a Second Appeal. That application having been rejected, the applicant preferred a Letters Patent Appeal from it. The learned Judges pointed out that no Letters Patent Appeal was competent from the dismissal:. of the review application because it amounted to a Letters Patent Appeal from the Judgment which was sought to be reviewed anti that such an appeal was not competent without a certificate from the learned Single Judge. They have pointed out that if an amendment had been made by the learned Single Judge then, a Letters Patent Appeal would have been ‑ competent. The reasoning obviously is that an order on the Review Application, being a judgment, was appealable under clause 10 of the Letters Patent, but no such appeal could be entertained if the original judgment was left unaltered, because it would amount to cir cumventing the provision of certification.
11. In our view the order of the learned Single Judge is a judgment within the meaning of clause 10 of the 'Letters Patent, because it is a refusal to correct an error, which, according to the learned Single Judge himself, was an accidental slip. It is immaterial to our minds that the learned Single Judge has pointed out other possible remedies as open under law to the plaintiffs/appellants.
12. Before closing this order, we may mention that Mr. Fazeel has specifically drawn our attention to the case of Ram Rakha Mat Bhandari v. Dina Nath Bhatia and others (A I R 1941 Lah. 419), and argued that a deliberate mistake cannot be corrected under section 152, C. P. C. We have already held that there was an accidental slip and need not refer to the contents of that judgment.
13. In conclusion we accept this appeal, and set 'aside the order of the‑learned Single Judge, dated the 12th of April 1967.
14. At this stage, Mr. Fazeel and Mr. Ramchand have drawn our attention to a possible complication, if we ourselves correct the accidental slip. They have argued that an amendment made by us is likely to create complications for defendant No. 7 ‑(respondent No. 2 in these proceedings), who would, for the first time, become liable by‑ virtue of the amended decision and would like to go in Letters Patent Appeal. His appeal, even if otherwise competent, is likely to be resisted on the ground that the amendment was made by a Letters Patent Bench. Counsel have, therefore, requested that the amendment be allowed to be made by the learned Single Judge himself. '
15. We accordingly remand this case to the learned Single Judge for making the requisite amendment in order to remove the accidental slip.
A. E. Appeal accepted. Case remanded.