2020 C L C 1334
[Balochistan]
Before Muhammad Ejaz Swati, J
Mst. NUZHAT GULZAR and 10 others ----Petitioners
Versus
SHAMIM GUL DURRANI and 2 others ----Respondents
Civil Revision No.11 of 2019, decided on 19th December, 2019.
(a) Civil Procedure Code (V of 1908) ---
----S. 152 ---Amendment of judgment, decree or order ---Scope ---Decree- holders of a decree
for partition of immovable property filed application under S.152, C.P.C. claiming therein
that the area of the disputed house as given in the plaint was l ess than the actual area---
Applicants in order to prove their contention placed reliance on the allotment order issued by the Development Authority and the site plan ---Validity ---Shares of the parties had already
been decided in the suit upto the Supreme C ourt and the omission on the part of the decree -
holders to correctly mention the area was an inadvertent omission---Allotment order and the site plan of the subject house were the foundation of the title ---Revision was allowed and the
application under S.152, C.P.C. was accepted subject to the extent of verification of the area
mentioned in the allotment order.
Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451
rel.
(b) Civil Procedure Code (V of 1908) ---
----Ss.152 & 153--- Amend ment of judgment, decree or order ---General power to amend ---
Scope ---Non -mentioning of the correct area at the best can be considered as a lapse or
omission which is always subject to correction/amendment according to the title deed/allotment order by invoking the provisions of Ss. 152 & 153, C.P.C. as the case may be.
Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others 1991 SCMR 2451
rel.
Mumtaz Hussain Baqri and Rasool Bakhsh Baloch for Petitioners.
Inamullah Kakar for Private Respondents.
Saifullah Sanjrani, A.A.G.
ORDER
MUHAMMAD EJAZ SWATI, J. ---The respondent Shamim Gul widow of Raja
Muhammad Gulzar, had initially filed suit for declaration and consequential relief with the
averments that she alone is exclusive owner of the house bearing No.162 -HI/B -5 Satellite
Town, Quetta measuring 5400 sq. ft. (house in question). The said suit was dismissed vide judgment and decree dated 21.03.1998 by the Additional District Judge -IV, Quetta. The said
judgment and decree was upheld upto the Hon'ble Supreme Court. Thereafter, petitioners filed a suit for partition, possession for their share as prescribed by Sharia and mesne profit against the respondents, which was partly decreed by the Senior Civil Judge -I, Quetta, vide
order and decree dated 13.05.20 05. The relevant is reproduced herein below:
"The plaintiff are thus entitled for their respective share as per Sharia as well as
possession on the basis thereof. Suit of plaintiff is thus partly decreed in favour of plaintiffs to the extent of partition and possession of house bearing No. 162- H1/B -5,
Satellite Town, Quetta, measuring 5400 Sq. Ft. for their share as presc ribed by
Sharia."
2. The appeal filed by the respondents was dismissed by the appellate Court on
17.11.2006, and Civil Revision Petition, filed by the respondents was also dismissed by this Court on 6th July 2007 and said judgment was up held up to the Hon'ble Supreme Court.
3. On application under Section 151, C.P.C. filed by the decree holder, the learned
Executing Court, directed the Civil Nazir to handover the area mentioned in the order to the decree holder and respective parties, which was assailed by the respondent and appeal was
allowed. Consequently, the decree holder filed Civil Revision Petition No.563 of 2010,
which was decided by this Court on 30.06.2017. This Court in para No.13 decided the petition as under:
"In the instant case, the fixed Sh ares of mother of the petitioners and respondent No.1
was 1/8th i.e. 674 sq.ft. and they have to share in the allotted entitlement i.e. 337.5 each. After the death of mother of the petitioners, her share i.e. 337.5 devolves upon the petitioners. In the ins tant case, the trial Court vide order / decree dated 13th May
2005 decreed the suit in favour of the petitioners (plaintiff's) i.e. "the plaintiff are entitled for their respective share as per Sharia as well as possession on the basis thereof".
4. After a bove judgment, an application under Section 152, C.P.C. was filed by the
decree holder, wherein, it is contended that in the suit, the area of the house was given as 5400 sq.ft. while in the allotment order, issued by the Quetta Development Authority (QDA)
and at site the actual area is 7065 sq.ft. and area of the property to be portioned may be corrected as 7065 sq.ft. instead of 5400 sq.ft.
5. The application was contested by the respondents, however, the learned Executing
Court, vide order dated 17.11.2018, dismissed the same, which has been assailed by the petitioners by way of filing instant petition:
6. Learned counsel for the petitioners states that along with application, the allotment
order and site plan of the house in question was also annexed, but without getting
verification of the same and allowing rectification in the decree with regard to area of the property, the legal heirs have been deprived from their due rights in the house in question.
7. Learned counsel for the respondents opposed the c ontention of the learned counsel for
the petitioners on the ground that the suit filed by the petitioners was decreed on the basis of evidence containing area i.e. 5400 sq.ft. and the said decree was upheld upto the Hon'ble Supreme Court, therefore, any change/correction in respect of area is beyond the decree, which is not permissible under the law.
8. Having heard the learned counsel for the parties and perused the record of the case.
The shares of the parties have already been decided in the suit upto th e Hon'ble Supreme
Court and the omission on the part of decree holder that the actual area of the property was 7065 sq.ft. but in the suit due to inadvertent omission it was mentioned as 5400 sq.ft and this aspect of the matter gets support from the allotm ent order as well as site plan, issued by the
QDA. The parties are claiming their share of the subject matter of the suit/decree and the allotment order and site plan of the subject house is the foundation of the title. The specification/area of the subject house in the allotment order is mentioned as 7065, but it was incorrectly mentioned in the suit/decree as 5400. The non- mentioning of the correct area at
the best can be considered as a lapse or omission is always subject to correction/amendment accordin g to the title deed/allotment order by invoking the provision of sections 152 and 153
as the case may be. In Manzoor Hussain and 9 others v. Malik Karam Khan and 2 others, 1991 SCMR 2451, the Hon'ble Supreme Court of Pakistan has enunciated the principle o f
law that where any claim is founded on the deed and an incorrect specification of property is detected, correction of the same to bring it inconformity with the deed/agreement should be
allowed and in Para 6 of the judgment observed as under:
"The whole claim was founded on a written agreement. That agreement had been
mentioned in the plaint as the basis of title and the foundation of rights. The specification or description of the property was evidently picked up from it. A copy of the agreement had acc ompanied the plaint. The defendants / judgment -debtors had as
much notice of that document as of the plaint. None pointed out the discrepancy between the two. The Court too did not detect it. This Court has already held in Amir Abdullah Khan through legal heirs and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972 that where a claim is founded on a deed and the plaint incorporates by reference the contents of such deed, the incorrect specification or incorrect description of the particular of the prope rty can always be resolved and corrected by
the reference to the deed so incorporated and not beyond. The basic title deed is that accompanying document of which the parties had full notice. The contest is deemed to centre round that document as stood incorporated in the plaint. Unless the discrepancy in the two is detected by the parties to the contest or by the Court and remains unattended, correction of the incorporating document to bring it in conformity with the incorporated document cannot be refused. Whatever the stage
when the discrepancy is detected correction of it can take place by resort to section 152, C.P.C."
The learned executing Court has not considered the application under section 152,
C.P.C. filed by the petitioners in its true perspectiv e and principle of law laid down by the
apex Court of Pakistan.
In view of the above, Civil Revision Petition No.11 of 2019 is allowed, the impugned
order dated 17th November 2018 passed by the executing Court is set aside and application
under section 1 52, C.P.C. filed by the petitioners is accepted subject to verification of the
area of the house mentioned in the allotment order. The Executing Court after verification of the allotment order from the concerned Authority, expedite the realization of the a mended
decree in accordance with law, possibly within a period of three months.
The petition stands disposed of accordingly.
SA/10/Bal. Revisiion allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.