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Civil Miscellaneous Nos. 370 and 371 of 1982 in Writ Petition No. 358‑R of 1964, decided on 18th April, 1983.

‑‑‑ Art. 98‑‑Civil Procedure Code (V of 1908), Ss. 151, 152 & 153‑ Amendments in judgment‑‑ Applicant praying for amendments in judgment of High Court passed in 1971 in writ petition filed in 1964 by predecessor‑in‑ interest of petitioner regarding his entitlement to allotment of land in dispute‑‑ Applicant approaching High Court after more than a decade and as such guilty of gross laches‑‑Judgment of High Court in question passed in presence of counsel for parties‑‑Fact that predecessor‑in‑interest of applicant or his counsel had failed to notice true import of said judgment reflecting on their own negligence‑‑No satisfactory explanation given by him for excessive laches of ten years and story built up by him about discovery of error after over a decade not inspiring confidence‑‑Remedy of review available to predecessor‑in- interest of applicant, for which period of limitation was prescribed, also not availed of‑‑Right accrued in favour of opposite side‑‑Judgment in question passed with jurisdiction and not assailed any further attained finality in law and it was binding upon parties affected irrespective of fact whether it took right or wrong view of the law‑‑Applicant contending that a wrong report was submitted by Settlement Department as regards entitlement of his predecessor‑in‑interest and that he should not be allowed to suffer on account of that wrong report‑‑No error patent on face of record shown and matter requiring evidence and a fresh exercise into ascertainment of factual aspects‑‑Applicant and his predecessor‑in-interest at all relevant points of time were aware of facts and there was no new discovery‑‑Perusal of judgment showed that it was passed on basis of an admission of opposite side which flowed from erroneous claim being made by claimant himself‑‑Case of applicant falling outside scope of clerical or arithmetical mistakes in judgments, decrees or errors arising therein from any accidental slip or omission‑‑Interference declined by High Court in circumstances.‑‑[Judgment].

‑‑‑S. 152‑‑Provisions of S. 152, when inapplicable.

Provision of section 152, C . P. C . , would be wholly inapplicable to those cases where a party called as an error what was in fact reflected in judgment or order as extent of claim made by party itself before Court, though under an erroneous impression as to true state of facts of his entitlement, and opposite side conceded claim so being made which resulted in judgment and decree‑‑Such a party cannot, after judgment and decree had become final, be permitted to turn round more than ten years thereafter and fall back upon the provision of S. 15 2, C . P. C . , so as to wash away effects of his own conduct and deeds before tribunals below as well as High Court and in process also deprive of opposite party of the rights which had accrued in its favour. It was duty of every litigant to be vigilant and pursue litigation with open eyes. Parties could not be allowed to achieve indirectly what he was otherwise incapable of achieving directly under the law.

‑‑‑Art. 98‑‑Civil Procedure Code (V of 1908) Ss. 152 & 153. Constitutional jurisdiction‑‑Amendments in judgment‑‑Exercise of jurisdiction under Ss.152 & 153, C.P. C.‑‑Party moving Court under Ss.152 & 153, C . P. C . , held, could not wake up at its own pleasure and take leisurely steps simply because Court could make corrections or amendments covered by Ss.152 & 153, C.P.C. 'at any time' Constitutional jurisdiction being discretionary and a speedy remedy, a person approaching for relief has to act diligently and should not be found to be guilty of inexcusable indolence or guilty of excessive laches where right of opposite side would be prejudiced.

‑‑‑Estoppel by conduct‑‑Long inaction could with knowledge of judgment or order would amount to acquiescence, abandonment or waiver‑‑Doctrine of estoppel by conduct of a party has judicial recognition.

‑‑O. XLVII, R. 1‑‑Review‑‑Review is not available for reconsideration or rehearing of case nor a point which could be urged at hearing but was not so urged is not recognised as a ground justifying review.‑ [Review].

-----S. 151‑‑Inherent power‑‑Inherent powers of Court, held, were not ordinarily exercised in supersession of or as substitute or remedies available to a party under a specific statute or Constitution for having alleged wrong remedied by recourse to proper provisions‑‑A party which failed‑to follow normal course and did not avail of ordinary remedies available at law, could not justifiably belatedly fall back upon inherent powers of Court to make up for its own failures‑‑Courts in such a situation would be slow to come to aid of a delinquent party.

‑‑‑S. 152‑‑Application of S. 152‑‑Provisions of S. 152, would have no application to cases where essential ingredients for invoking said provision were conspicuous by their absence‑‑A wrong report as to entitlement of a claimant displaced person, held, could not be reasonably said to be an error of relevant kind in judgment of High Court‑‑It would not suffice for a party to merely show that judgment of Court was based on erroneous facts either furnished by party itself complaining or opposite side.

‑‑‑Ss. 152 & 153‑‑Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 10 & 11‑‑Amendment in judgment‑‑ Allotment of land‑‑Where one claim was settled as against other and matter had become a transaction past and closed, case, held, could not be reopened by amendment at a belated stage.‑‑[Judgment .

‑‑‑S. 153‑‑Power under S. 153, C.P. C. is, discretionary and could not be claimed as of right.

‑‑‑S. 152‑‑Amendments in judgment‑‑Sharp difference exists between a mistake, error or omission arising in judgment due to factors mentioned in S.152, C . P. C . , and error of judgment or decision itself on whatever basis it might have occurred‑‑Provisions of S .152, C . P . C . would be available for former category while in latter type of cases a party could get judgment, decree or order reversed, revised or modified by recourse to normal remedies under law where it provided for an appeal, revision or review.‑‑[Judgment].

Salamat Ullah Sheikh for Petitioner.

Raja Abdul Razzaq and Ch. Muhammad Nazir Ahmad for Respondents.

Date of hearing: 18th April, 1983.

These civil miscellaneous applications have been filed under sections 151, 152 and 153 of the Civil Procedure Code for amendments in the judgment of a learned Single Judge of this Court, dated 19‑1‑1971 whereby Writ Petition No. 358‑R of 1964 filed by predecessor‑in‑interest of the present applicant was accepted.

2. The background and circumstances leading to the filing of the present applications briefly are that Dasoondi (since deceased) who was the father of the present applicant, had filed a writ petition number 358/R of 1964 before the High Court of West Pakistan, Lahore assailing the orders of the Settlement Authorities (Lands) in allotting land to the private respondents in preference to him in the year 1962. The precise grievance made was that writ petitioner's entitlement was raised in the year 1958 by eight Kanals 10 Marlas which entitled him to allotment against the same but this plea was illegally ignored by the Settlement Authorities. A report was called for by the High Court from the Settlement Department in the light of averments made in the memorandum of writ petition. The learned Judge, Mr. Justice Mushtaq Hussain (as he then was) in para. 8 of the judgment, dated 19‑1‑1971, took note of the fact that in paras 2 and 4 of department's report it had been categorically stated that the area claimed by Dasoondi, petitioner, was re‑verified "as 53 Kanals and 17 Marlas in the year 1958" and that ' the petitioner's claim form duly verified was received in 1958 and on 30th March, 1962, the area was notwithstanding confirmed in favour of respondents. The petitioner's area was entered later on in Khata No. 1683" . It was treated as a clear admission of the case set up by the writ petitioner and further of the fact that the order of the ,D.R.C. and the Rehabilitation Commissioner proceeded on absolutely incorrect assumptions and refusal to take into consideration documentary evidence in the shape of revenue record and Settlement record of the village. This the Settlement Authorities were not entitled to do, it was held. In view of the fact that learned counsel appearing for the respondents was unable to refute this observation and admission of the Settlement Department, the writ petition was accepted with costs. The impugned orders were set aside to the extent of re‑verified entitlement of the petitioner. The petitioner was held entitled to the allotment and transfer of land equal to eight Kanals and 10 Marlas verified in his favour out of the land in dispute.

3. Farzand Ali, son of Dasoondi, one of the five successor-in‑interest on 8‑2‑1982 had filed this civil miscellaneous application under sections 151, 152 and 153 of the Civil Procedure Code on the ground that in fact the re‑verified entitlement of petitioner was 53 Bighas 17 Biswas and not 53 Kanals and 17 Marlas as recorded in the judgment, dated 19‑1‑1971. The case being made out was that applicant's deceased father, Dasoondi's entitlement was worked out by the Settlement Authorities on the basis of reverified area in terms of Kanals whereas it was in point of fact in Bighas and Biswas. The petitioner's version further was that the judgment of this Court, it had now transpired, had not been implemented in the revenue record by the authorities concerned. The applicant and other legal heirs of Dasoondi had, it was claimed, were all along under the impression that the judgment and order, dated 19‑1‑1971 of this Court must have been implemented and incorporated in the revenue record but it had not been so done. A few months ago the present applicant for the purchase of a tractor needed documents of title and therefore, obtained copy of Register Haqdaran Zamnin from which it came to light that Khasra Nos. 121/1/1, 2/2 and 9 was shown in the ownership of respondents 2 and 3. It was also the case of the applicant that he approached the authorities concerned for implementation of the judgment and order, dated 19‑1‑1971, who directed him to produce certified copy of the same. The petitioner obtained a copy in which mistake made by the High Court came to light, it is further alleged. The concerned authorities according to the applicant are prepared to carry out the order of the High Court to the extent and in terms in which it was couched i.e. regarding 8 Kanals 10 Marlas and not 8 Bighas and 10 Biswas. Hence this application.

4. The petitioner through Civil Miscellaneous Application No. 370 of 1982, filed under sections 151, 152 and 153 of the Civil Procedure Code sought amendment of this Court's judgment, dated 19‑1‑1971 so that a short fall in Dasoondi's allotment to the extent of about 6 Kanals 13 Marlas could be made up and an equivalent area cancelled from the allotment of the private respondents.

5. I issued notice to the respondents in the main application who appeared. The private respondents were represented by their learned counsel, Raja Abdur Razzaq, while Ch. Muhammad Nazir Ahmed, Advocate, Legal Adviser, represented the Settlement Department. Both the learned counsel for the respondents vehemently opposed this application on the basis of objections which would be noticed in proper sequence.

6. Learned counsel appearing for Fazal Din applicant, has argued that if the desired amendments which are the result of a clerical mistake and accidental slip are not made, he would suffer by a shortfall in his predecessor‑in‑interest Dasoondi's allotment to the extent of about 6 Kanals 13 Marlas to which deceased claimant was actually entitled. According to him, if the entitlement was properly worked out the unsatisfied entitlement would be found as 15 Kanals 3 Marlas as against 8 Kanals and 10 Marlas. It is further argued that amendment in the judgment of the High Court is necessary to meet the ends of justice and to prevent the abuse of the process of the Court. According to the learned counsel notwithstanding any error on the part of Dasoondi in mentioning a lesser area in Kanals it did not absolve the Settlement Authorities of their duty to correctly verify the entitlement anal to allot area accordingly. He also claimed prejudice having been caused as the error had crept into the judgment as a result of the incorrect report submitted by the Settlement Department to the High Court which was contrary to the actual position obtaining on their record. The departmental report as regards entitlement of Dasoondi, it is stated, wrongly mentioned re-verified claim for an area of 53 Kanals 17 Marlas. The learned counsel argued that a party should not be made to suffer on account of mistake of the Settlement Department and that a mistake of the relevant kind could be corrected in the judgment at any time and thus delay of about 11 years ought not to stand in the way of grant of desired relief.

7. In reply, the learned counsel for the respondents have taken up the stand that the judgment of the High Court whether it took right or wrong view of law or facts had attained finality in law and that after lapse of a decade the same could not be got altered or amended materially to the prejudice of the respondents. The blame if any would squarely fall on the shoulders of Dasoondi himself and no clerical or arithmetical mistake in the judgment existed nor there were errors arising in the judgment or decree from any accidental slip or omission warranting correction and thus, the case was not covered by the scope of sections 151, 152 and 153 of the Civil Procedure Code. It was argued that in fact the applicant was seeking material changes in the decision which amounted to review of the judgment. According to the learned counsel for the respondents, the applicant was seeking the review of the High Court's judgment under the garb of a mere amendment. This could not be done as the scope of the two jurisdictions was clearly distinct from each other. There could be no review because it was barred being hopelessly beyond the period prescribed. They further submitted that Dasoondi's case before the Settlement Authorities was also based on entitlement of 53 Kanals 17 Marlas as was clear from a reading of paragraph 3 of his grounds of revision before the Additional Rehabilitation Commissioner, dated 7‑3‑1963. The case set up by him before the High Court was consistent with his case below as was evident from his own averment in paragraph 2 of the writ petition and this was also the point raised at the hearing and accordingly taken note of by the learned Judge who decided the writ petition. The question of laches and inordinate delay has also been pressed into service by the respondents.

8. I have carefully considered the contentions raised by the learned counsel for the petitioner but did not feel persuaded to sustain them in the facts and circumstances of the case. The fore‑most question which needs examination in this case is the cause of delay of more than 10 years in approaching this Court. The applicant and his predecessor‑in‑interest are guilty of gross laches. They cannot be heard in ignorance of the order of the High Court of West Pakistan, Lahore, dated 19‑1‑1971 which is a short judgment and was passed in the presence of the learned counsel for the parties. The mere fact that deceased Dasoondi or his learned counsel had failed to notice the true import of the judgment, dated 19‑1‑1971 reflects on their own negligence. There is no satisfactory explanation for this excessive laches of 10 years and the story being built up now about discovery of an error after over a decade does not inspire confidence. It is no doubt true that from the wording of sections 152 and 153 of the C . P. C. , it is evident that the Court can exercise jurisdiction in terms of these sections at any time but this does not mean that a party which moves the Court in that behalf can wake up at its own pleasure and take leisurely steps simply because the Court can make corrections or amendments covered by these sections "at any time". The constitutional jurisdiction being discretionary and a speedy remedy, a person approaching for relief has to act diligently and should not be found to be guilty of inexcusable indolence or guilty of excessive laches where the rights of opposite side would be prejudiced. I may observe that long inaction coupled with knowledge of a judgment or order would amount to acquiescence, abandonment or waiver. In recent times, the doctrine of estoppel by conduct of a party has increasingly received judicial recognition.

9. There is another important aspect of the matter. Against on error which is now being complained against, there may have been a remedy of review available to predecessor‑in‑interest of the present applicant for which the period of limitation had been prescribed. The claimant himself having failed to avail of the statutory remedy within the period of limitation, a right accrued in favour of the opposite side. It ought to be remembered that every judgment of the High Curt passed with jurisdiction which has not been assailed any further attains finality in law. It is binding upon the parties affected irrespective of, the fact whether it takes right or wrong view of law. The principle enunciated by the Supreme Court in re: Government of Pakistan v. Syed Akhlaque Hussain P L D 1965 S C 527 may advantageously be referred to for the purpose of the present case. There is thus, no legal warrant or justification for me at this stage to accede to the request of the applicant and materially alter the scope of the judgment which undoubtedly would have the resultant effect of depriving the respondents of their allotment. The plea of petitioner before me was that he should not be allowed to suffer on account of a wrong report submitted by the Settlement Department as regards Dasoondi's entitlement. There is thus no error patent on the face of the record and the matter would require evidence and a fresh exercise into ascertainment of factual aspects. There was also no new discovery as the applicant and his predecessor‑in‑interest at all the relevant points of time were aware of the facts. A review is not available for re‑consideration or re‑hearing of the case nor a point which could be urged at the hearing but was not so urged had ever been recognised as a ground justifying review. The applicant thus would have no case even for a review.

10. I would now deal with the plea of the petitioner for invoking the inherent powers of under section 151 of the C.P.C. These undoubted powers of the Court are not ordinarily exercised in supersession of or as substitute for remedies available to a party under a specific Statute or the Constitution for having the alleged wrong remedied by recourse to proper provisions as for instance an appeal or review to have the judgment complained against reversed or modified etc. A party which failed to follow the normal course and did not avail of the ordinary remedies available at law, cannot justifiably belatedly fall back upon the inherent powers of the Court to make up for its own failures. The Courts in such a situation or slow to come to the aid of a delinquent party. Furthermore, inherent powers are exercised by the Courts for two stated reasons i.e. for ends of justice or to prevent the abuse of the process of the Court. None of the two situations were shown to arise properly in facts and circumstances of this case.

11. The arguments based on section 152 of the C . P. C . on careful examination also fail on factual as well as legal plane. This is a provision for correction of clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission at any time by the Court of its own motion or on the application of any of the parties. On a reading of this provision, it is patent that it would have no manner of application to cases where these requirements were not met or essential ingredients for involving this provision were conspicuous by their absence. A wrong report as to the entitlement of a claimant displaced person cannot be reasonably said to be an error of the relevant kind in the judgment of the High Court. It would not suffice for a party to merely show that the judgment of the Court was based on erroneous facts either furnished by the party itself complaining or the opposite side. The remedy in such like cases would be resort to appeal or review of the judgment provided a case is made out for it. At any rate, this section did not appear to me to permit invoking of powers or jurisdiction in such a manner as to materially alter on merits the very substance and scope of the judgment. In the instant case, a perusal of the judgment showed that it was passed on the basis of an admission of the opposite side which flowed from the erroneous claim being made by the claimant himself. Departmental report may well have been the result of the averments in the writ petition made by the deceased claimant, Dasoondi. The case, thus, falls outside the scope of clerical or arithmetical mistakes in the judgments, decrees or errors arising therein from any accidental slip or omission. This provision would be wholly inapplicable to those cases where a party called as an error what was in fact reflected in the judgment or order as the extent of the claim made by the party itself before the Court though under an erroneous impression as to the true state of facts of his entitlement and the opposite side conceded the claim so being made which resulted in the judgment and decree. Such a party cannot after the judgment and decree had become final be permitted to turn round more than 10 years thereafter and fall back upon the provisions of section 152, C . P. C . so as to wash away the effects of his own conduct and deeds before the tribunals below as well as the High Court and in the process also deprive the opposite party of the rights which had accrued in its favour. It is duty of every litigant to be vigilant and pursue litigation with open eyes. The petitioner could not be allowed to achieve indirectly what he was otherwise incapable of achieving directly under the law. The Land Settlement Act was repealed in the year 1974. The legislative intent manifestly was to bring to a close the Rehabilitation and Settlement phases. I see no justification to dig up this waterlogged dispute long after the law under which these proceedings arose stands repealed. This would be in keeping with the policy of law.

12. The learned counsel appearing on behalf of Settlement Department, Ch. Muhammad Nazir Ahmed opposed the application on additional grounds. He submitted that due to the repeal of the Act the property had ceased to be evacuee property in the compensation pool and it vested in the Provincial Government. The department was under an obligation to honour and implement only those cases which were duly remanded by the superior Courts after the repeal of the Displaced Persons (Land Settlement) Act, 1958, to be treated as pending, proceedings. He further contended that allotment of land was in the nature of grant and where one claim was settled as against the other it furnished no legitimate ground at such a belated stage to open up the matters which were transactions past and closed. I find substance in the last submission in peculiar facts and circumstances of this case.

13. The plea of the petitioner based on section 153 of the C.P.C. may be briefly adverted to. Reliance on this provision is inapt. It would suffice to say that no defect or error in proceedings properly arises in the present case. At any rate, the power is discretionary and cannot be claimed as of right. I am not inclined to exercise my discretion in favour of the petitioner for reasons already elaborately given.

14. It may lastly be observed that there is subtle and sharp difference between a mistake, error or omission arising in a judgment (due to factors mentioned in section 152 of the C.P. C. ) and the error of judgment or decision itself on whatever basis it may have occurred. The provisions of section 152 are available for former category while in the latter type of cases a party has to get the judgment, decree or order reversed, revised or modified by recourse to normal remedies under the law where it provides for an appeal revision or review. The case of the petitioner on proper analysis falls in the latter category and thus the judgment of this Court cannot be got modified or altered in material respects so as to change the very decision either on the basis of inherent powers or grounds covered by sections 152 or 153, C.P.C.

The upshot of above discussion is that these applications are without any merit and are accordingly dismissed with no order as to costs.

M. Y. M. /F‑4/L Applications dismissed.

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