JASBIR SINGH Vs. SEWA RAM

JUDGEMENT

(1.) Land measuring 42 kanals 2 marlas being 824/2421the share of the area measuring 121 Kanals 1 Marla was sold vide sale deed dated February 4, 1981, for a sum of Rs. 1,03,934 00, by Shrimati Kesar Kaur and others, Jasbir Singh, plaintiff, filed the suit for pre-emption claiming himself to be the son's son of Kesar Kaur, vendor defendant and brother's son of defendants, Nos. 2,4, 5, 6, and 7 and the real son of defendant No. 3. The suit was contested by the vendee Sewa Ram. Ultimately, the trial Court held that the plaintiff had the superior right to pre-empt the sale made by the grandfather and his father's brother. Thus, the suit was partly decreed on September 17, 1983, in favour of the plaintiff qua the sale made by defendants Nos,2 to 5, on payment of proportionate sale consideration of Rs. 67, 120.30, being the 4/7the share of the sale price. The suit with regard to sale made by defendants Nos. 1, 6 and 7 was dismissed as it was held that the said sale fell under sub-section (2) of Section 15 of the Punjab Pre-emption Act. Against the said judgment and decree of the trial Court, both the parties filed appeals. Ultimately, both the appeals were dismissed and the decree of the trial court was maintained. In pursuance of the judgments and decrees of the courts below, the plaintiff-pre-emptor deposited the decretal amount which was withdrawn by the vendee-defendant. The decree was duly executed and the plaintiff came into possession of the land as per the decree of the trial Court. Dissatisfied with the judgments and decree of the lower appellate Court, both the parties filed second appeals in this court. The appeal filed by the plaintiff-pre-emptor in this Court was admitted whereas the appeal filed by the vendee-defendant was dismissed by this court earlier. In the appeal filed by the plaintiff-pre-emption money-emptor, i.e., regular second appeal no. 1338 of 1984, the plaintiff moved the application for withdrawal of the pre-emption money in view of the Supreme Court decision in Atam Parkash v. State of Haryana,1987 RRR 116 . The aforesaid application came up for hearing on April 4, 1986, when this Court passed the following order :

(2.) In the reply filed on behalf of the vendee-defendant, it has been pleaded that no application under section 152 of the Civil Procedure Code, (hereinafter called the Code), was maintainable because the mistake was neither clerical nor arithmatical, as alleged. Moreover, if the application is treated as one for review, the same was barred by time. However, the facts stated in the civil miscellaneous application were not denied. It was argued that in any case the Court was competent to pass such a decree in view of the provisions of Order 41 Rule 33 of the Code, and, therefore, there was no question of any correction being made as sought for. In support of the contention the learned counsel relied upon Subramanian v. Sinnamal, 1930 AIR(Mad) 801 (F.B.) and Phul Kumari v. Sambhu Prasad, 1965 AIR(Pat) 87

(3.) After hearing the learned counsel for the parties, I find that the mistake in the impugned order is apparent on the facts admitted. It is no more disputed that the regular Second Appeal filed by the vendee-defendant in this Court qua the decrees passed by the Courts below had already been dismissed by this Court and, thus, it had become final between the parties. Not only that, the plaintiff-pre-emptor had deposited the requisite amount which was withdrawn by the vendee-defendant and the possession of the land was given in execution of the decree to the plaintiff-pre-emptor. If these facts had been brought to the notice of this Court while disposing of Regular Second Appeal No. 1338 of 1984, vide order dated April 4, 1986, perhaps, the said order would not have been passed and only the appeal filed by the plaintiff-pre-emptor would have been dismissed in view of the decision of the Supreme Court in Atam Parkash's case , wherein it has also been observed that the matter which had already become final would not be re-opened. Thus, the mater between the parties had already become final between them. That being the position, the invoked. Besides, this Court never exercised those powers while passing the impugned order, because the whole facts were never brought to the notice of this Court. In exercise of the powers under Section 151 read with Section 152 of the Code, this Court has ample powers to correct any mistake or error which is apparent on the facts admitted.