P L D 2021 Balochistan 113
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
ABDUL MATEEN through guardian/father ---Petitioner
Versus
BIBI KHADIJA and others ---Respondents
C. P. No. 639 of 2017, decided on 31st December, 2020.
(a) Civil Procedure Code (V of 1908) ---
----S. 152---Amendment of judgments, decrees or orders ---Scope ---Section 152 of C.P.C.
provides a speedy and inexpensive relief without resorting to other remedies that may be
available under the law ---Section 152, C.P.C. has limitations which have been provided
therein ---Scope of S.152, C.P.C., is limited to 'clerical', 'arithmetical mistakes' or "errors"
arising from any "accidental slip" or "omission"---Where the order or judgment is deliberate, having been passed after appl ication of mind, it will be outside the scope of S.152, as an
error or omission in such an order would not be construed as an accidental slip or omission---Not every mistake by a Court can be termed as an error resulting from an 'accidental slip' or 'omiss ion'---Questions involving contentious issues cannot be considered or corrected under
S.152, C.P.C.
Baqar v. Mohammad Rafique and others 2003 SCMR 1401 rel.
(b) Civil Procedure Code (V of 1908) ---
----S. 152 ---Amendment of judgments, decrees or orders ---Scope ---Court cannot rectify a
decree, judgment or order on the grounds that it was wrong or unfair ---Section 152, C.P.C.
does not authorize the Court to supplement its judgment passed after application of mind and having effect of taking away rights accrued to any party---Errors as contemplated by S.152, C.P.C. are those which may have crept into the order or decree inadvertently or unintentionally ---Mistakes which do not go to the merits of the case and not substantially
affecting rights of the parties can always be corrected by exercising jurisdiction under S.152,
C.P.C.
Abdul Haq Kasi for for Petitioner.
Mumtaz Hussain Baqri and Shams -ul-Huda for Respondents.
Date of hearing: 17th December, 2020.
JUDGMENT
ROZI KHAN BARRECH, J .---The instant constitut ional petition filed under Article
199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") carries the
following prayer:
"It is, therefore, respectfully prayed that keeping in view the above circumstances the impugned order dated 10.11.2016 passed by the Senior Civil Judge -II Quetta and
impugned order dated 17.05.2017 passed by the Additional Session Judge -V Quetta
may kindly be set aside and the Learned Trial Court be directed to make correction in its Judgment/ Degree dated 19.10.2015 by way of inserting the word in the issue No.
1 as "Plaintiff' instead of "Defendant", in the interest of Justice, Equity and Fair play."
2. Brief facts for filing of the instant petition are that the petitioner (plaintiff) filed Civil
Suit No. 92/2012 for Injunction before Senior Civil Judge -II, Quetta ("trial court")with the
following prayer: --
"It is therefore, respectfully prayed that a decree may kindly be passed in favour of plaintiff and against the defendant in the following terms.
A. That the act of the defendants are unlawful and illegal.
B. By way of passing injection orders defendants restrained from removing the
adjourning wall of the shops in question and to direct them to rebuild adjourning wall
or pay damages to the plaintiff.
C. Any other relief, which this Honorable Court deem fit and proper may also be awarded in favour of plaintiff and also the cost of the suit, in the interest of justice equity and fair play."
3. The suit was contested by the respondents (defendants) by me ans of filing written
statement. Issues were framed and the parties lead their evidence. After completion of the evidence, the trial court decreed the suit of the petitioner on 19.10.2015. The petitioner filed an application under section 152, C.P.C. for c orrection of clerical errors on 3.10.2016. The
respondents contested the application by means of filing rejoinder. After hearing learned counsel for the parties, the trial court dismissed the application on 10.12.2016 (hereinafter the "impugned order").
Being aggrieved from the order dated 10.12.2016, the petitioner filed civil revision
under section 115, C.P.C. against the impugned order dated 10.12.2016 passed by the trial court and the same was dismissed on 13.5.2017 (hereinafter the "impugned order"), whereafter the instant petition has been filed.
4. We have heard learned counsel for the parties and have gone the available record with
their able assistance.
5. The petitioner filed an application under section 152, C.P.C. for correction of the
clerical errors while deciding issue No.1, the court due to clerical mistake in the last line of
the portion reproduced as under, instead of writing "plaintiff' inadvertently wrote "defendant".
"In this regard a bird's eye -view of the available record clearly depi cts that no long
debate is required to determine the question of super -structure as vide its judgments
dated 11th October, 2000 and 9th March, 2001 respectively the Hon'ble High Court of
Balochistan, Quetta and Hon'ble Supreme Court of Pakistan had already decided this
question in previous round of litigation between the parties in favour of defendants."
6. The trial court while deciding application under section 152, C.P.C. thoroughly
discussed the facts and circumstances and hold that word defendant is wr itten in above para
was not a clerical mistake but it was mentioned deliberately as an eviction application and appeals thereto of suit titled as "Abdul Mateen v. Bibi Khadija" were decided in favour of respondents, and the trial court has also hold that m entioning word defendant was not due to
clerical mistake but it was deliberate.
7. Section 152 of C.P.C. provides a speedy and inexpensive relief without resorting to
other remedies that may be available under the law. However, section 152 has limitations which have been provided therein. The scope is limited to 'clerical', 'arithmetical' mistakes or "errors" arising from any "accidental slip" or "omission". Where the order or judgment is deliberate, having been passed after application of mind, it will be outside the scope of
section 152, as an error or omission in such an order would not be construed as an accidental slip or omission. Not every mistake by a Court can be termed as an error resulting from an 'accidental slip' or 'omission'. Questions involvi ng contentious issues cannot be considered or
corrected under section 152 of C.P.C. The august Supreme Court in case titled "Baqar v. Mohammad Rafique and others" 2003 SCMR 1401, while interpreting provision of section 152 has held that an "omission made by a Court by positive application of mind cannot be termed as an accidental slip' or omission. It must be an error apparent on the face of the record: or an "accidental slip or omission, and should be an error apparent at first sight, and
its discovery sho uld not depend on elaborate arguments on questions of facts or law". The
Court cannot rectify a decree, judgment or order on the grounds that it was wrong or unfair. The section does not authorize the Court to supplement its judgment, passed after applicat ion
of mind and having effect of taking away rights accrued to any party. The errors as contemplated by section 152 are those which may have crept into the order or decree inadvertently or unintentionally. Mistakes which do not go to the merits of the case and not
substantially affecting rights of the parties can always be corrected by exercising jurisdiction under section 152.
8. Applying the above principles of law, it becomes obvious that on the facts and
circumstances of the present case, it was beyond the scope of jurisdiction of the Court to rectify the order under section 152 of C.P.C. Firstly, there was no error or mistake which may have crept in the order on account of an accidental slip or omission; secondly, the questions raised in the application were of a contentious nature, and thirdly, it was intended
to take away the rights already accrued in favour of the respondents through impugned judgment dated 19.10.2015 passed by the trial court in the suit instituted by the petitioner. However, when a specific plea is raised in the pleadings and the Court has dismissed the same, in such circumstances, the matter cannot be reopened in the presence of the provisions of section 152, C.P.C. If the interpretation as laid by learned counsel for the petitioner is
acceded to, it would amount the exercise of the appellate and revisional jurisdiction which
has never been provided by the above provisions of law. Moreover, where the order is
deliberate and represented the intention of the Court, it cannot be said to be mistaken. The
error pointed out on behalf of the petitioner is not unconscious act or inadvertent mistake or omission.
In view of above, we are of the view that the trial court as well as revisional court
have rightly turned down the application of the petitioner under section 152, C.P.C. There is no illegality or material irregularity in the impugned orders, which are maintained and the instant constitution petition devoid of force is hereby dismissed, leaving the parties to bear their own costs.
SA/8 3/Bal. Petition dismissed.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.