1/17/22, 2:32 PM 2020 C L C 1334

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 less
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 Court 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---Amendment 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

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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
13.05.2005. 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 prescribed 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 Shares 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 instant 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
above 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 contention of the learned
counsel for
the petitioners on the ground that the suit filed by the petitioners was

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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 the
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
allotment 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 according 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
of 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 accompanied 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 property 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 perspective 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

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aside and application under section 152, 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 amended decree in
accordance with law,
possibly within a period of three months.
The
petition stands disposed of accordingly.
SA/10/Bal. Revisiion
allowed.

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