SHER MUHAMMAD Versus SHAH BIBI

This revision petition was filed to assail the judgment dated 9‑3‑1980 and the order dated 2‑4‑1980 passed by the learned Additional District Judge, Sialkot. As regards the challenge made to the judgment dated 9‑3‑1980, the order passed by this Court on 3‑2‑1981 reads as under:‑‑

"The petitioners cannot be allowed in these proceedings to challenge judgment dated 9‑3‑1980 of learned Additional District Judge by means of which he had accepted the appeal against the order of trial Court dismissing the application of respondents (defendants‑judgment debtors) under Order 9, Rule 13, Civil Procedure Code for setting aside of ex parte judgment/decree against the respondents. The petitioners had the remedy of revision against the appellate judgment which they had not availed of."

Thereafter, the learned Judge noted the contention of the petitioners with regard to the order dated 2‑4‑1980 and admitted the revision petition to hearing. It is apparent from the aforenoted part of the order that the revisional jurisdiction against the order dated 9‑3‑1980 was not allowed to be invoked and, as such, the revision as against the judgment dated 9‑3‑1980 is to be taken to have been dismissed.

2. For appreciation of the submissions with regard to the order dated 2‑4‑1980 of the learned Additional District Judge, it is necessary to give the salient facts as follows; The suit for possession of land in dispute was filed by the petitioners on 17‑4‑1974 and the same was decreed ex parte vide ex parte judgment and decree dated 22‑4‑1975. The respondents filed application under Order IX, rule 13, C.P.C. for setting aside the ex parte decree but the same was dismissed by the trial Court vide order dated 23‑6‑1979. Thereafter, the respondents filed an appeal praying that the impugned order (i.e. order dated 23‑6‑1979) and the ex parte decree dated 22‑4‑1975 be set aside so as to give them opportunity to present their case and get justice done to them. In the memo of appeal, grounds were taken to show that the ex parte proceedings could not have been taken and that even on merits the petitioners were not entitled to the decree. It is true that in the heading of the appeal the order dated 23‑6‑1979 alone was mentioned. The parties during hearing of the appeal before the learned Appellate Court raised arguments challenging the decree on merits, the order passed for taking ex parte proceedings and the order dismissing the application under Order IX, rule 13, C.P.C. The learned Additional District Judge accepted the appeal vide judgment dated 9‑3‑1980. In this judgment, the contentions of the parties were noted in detail and making the following observations, accepted the appeal:‑‑

"It is accepted proposition of law that the law favours adjudication of disputes on merits rather than the technicalities. Hence, in the interest of justice I accept the appeal, set aside the impunged order and remand the case for fresh decision on merits."

The respondents thereafter filed an application dated 29‑3‑1980 praying that the judgment dated 9‑3‑1980 be amended to incorporate that the ex parte decree in favour of the respondent dated 22‑4‑1975 is set aside. They asserted in the application that by virtue of the order dated 9‑3‑1980, the learned Court intended and purported to set aside the ex parte decree passed in favour of the respondents, but it was not put in the judgment dated 9‑3‑1980 in express words and that it is in the interest of justice to incorporate that the ex parte decree in favour of the respondents is also set aside. The learned Additional District Judge vide order dated 2‑4‑1980 granted this request. It was directed that in continuation of the judgment of this Court the word "order" be read as judgment and decree and that the ex parte judgment and decree passed on 22‑4‑1975 in favour of the respondents is also set aside". The petitioners thereafter filed the present revision petition challenging the order dated 2‑4‑1980 and the order dated 9‑3‑1980. It was observed by this Court on 3‑2‑1981 that the petitioners cannot be allowed in these proceedings to challenge the judgment dated 9‑3‑1980. That matter as such is no longer open and this revision petition has to be limited to the order dated 2‑4‑1980.

3. Learned counsel for the petitioners in support of the revision petition as against order dated 2‑4‑1980 submitted that the respondents by filing the application dated 29‑3‑1980 sought review of the judgment dated 9‑3‑1980 as the word "review" has been specifically mentioned in the heading of the petition and, as such, the argument is now not available to them that the impugned order dated 2‑4‑1980 was passed in exercise of the powers vesting in a Court under section 152, C.P.C. He further pointed out that even in the‑ impugned order dated 2‑4 1980, learned Additional District Judge has treated the application as a review petition. On these premises, it was argued that without hearing the parties adversely affected, no order can be reviewed.

4. The contention of the learned counsel for the petitioners will have some force if the order dated 2‑4‑1980 is passed in exercise of review powers. It is true that under Order XLVII, rule 4, C.P.C. any judgment or order is not to be reviewed except after providing an opportunity of hearing to the parties likely to be affected, thereby. It is correct that the words "review of judgment" have been used in the heading of the application itself and the Court has also mentioned the word "review" in the impugned order, but a close scrutiny of the judgment dated is 9‑3‑1980, the application dated 29‑3‑1980 and the order dated 2‑4‑1980 would reveal that the omission was sought to be corrected in exercise of the powers vesting in a Court under section 152, C.P.C. The tenor of the judgment dated 9‑3‑1980 itself shows that the learned Additional District Judge intended to set aside the impugned decree as well and had remanded the suit for fresh decision on merits. Even the learned counsel for the parties before the learned Additional District .Judge had argued the appeal as if in the appeal both the orders dismissing the application under Order IX, rule 13, C.P.C. as well the ex parte decree dated 22‑4‑1975 were under challenge. Unfortunately, in the operative part of the judgment this intent could not be reflected. This omission could therefore, he justifiably corrected by the learned Additional District Judge under section 152, C.P.C. In this view of the matter, the plea that the impugned order was illegal having been passed at the back of the petitioners is rendered without' merit. It will be seen that no prejudice was caused by supplying the omission in the judgment dated 9‑3‑.1980. In support of the view that I have taken, the view taken by the Supreme Court in the case of Muhammad Latif and others v. Border Area Committee P L D 1978 S C 270 may be cited. The provisions of order XLVII, rule 4, C.P.C. in the situation in hand will also not be attracted as there is a distinction between the review and correction of clerical error or supplying the I omission under section 152, C.P.C. This distinction was pointed out in the case of Muhammad Shibli Khan v. I.U. Khan P L D 1976 Lah. 269, wherein it was further observed that the vindication of the power of the Court to correct its own perceptible clear clerical errors or accidental slip or omission also lies in the well recognized principle actus curiae neminern gravabit (an act of the Court shall prejudice no man). This maxim is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law. It is, therefore, apparent that the order dated 2‑4‑1980 was passed under section 152, C.P.C. for supplying the omission so as to incorporate the intention of the Court in the judgment itself. The petitioners as such cannot claim right of hearing as no prejudice was caused to them by supplying the omission.

5. This revision petition, therefore, fails and is dismissed. The parties are left to bear their own costs.

M.AX/3046/L Petition dismissed