MT NAWASI BEGAM Vs. MTDILAFROZ BEGAM

JUDGEMENT

(1.) This is the application of Mt. Dilafroz Begam She asks that a sum of Rs. 2,147, which was ordered to be paid by her by a judgment of this Court of the 9 June 1926, may he reduced to the sum of Rs. 717. The position was that in a suit in which she was plaintiff this Court held that the defendant should be allowed 10 per cent. on the actual collections of certain rents. It was not the duty of this Bench nor the duty of the office, to ascertain what that amount was, but the statement having been made by this Bench, that the plaintiff would have to pay 10 per cent on the actual collections the period of the luncheon interval was given to the parties to say what that amount came to. On the return of the Court the Court was informed that the sum was Rs. 2,147, and this was the sum agreed to be the correct calculation of 10 par cent. on actual collections. We have now had a table of figures put before us and also a pedigree giving the various shares to which certain persons including Mt. Dilafroz Begam, were entitled, and it has become evident that instead of Rs. 2,147, Rs. 717 was the amount which should have been paid by the plaintiff.

(2.) This application has been resisted not on the ground that Rs. 2,147 was in truth the correct amount, but on the ground that Section 152 is not applicable to a case of this kind inasmuch as the error said to be committed is not an error committed by the Court. In support of that contention we have been referred to the case of Ram Chander Sarup V/s. Mazhar Hussain [1920] 1 U.P.L.R. (A) 69. In that case undoubtedly the learned Judges were of opinion that Section 152 dealt with amendments of clerical errors in orders or decrees of the Court itself which are drawn up and which do not properly represent what the Court decides. Here the very judgment itself contained the sum of Rs. 2,147. The error by that time had already been committed, and was an error possibly of the parties themselves, or possibly some mistake in calculation by the legal representatives of one side or the other. It so happens that the gentleman who was representing Mt. Dilafroz Begam in the appeal is not appearing to-day, and nobody can explain how Rs. 2,147 was the sum agreed to be 10 per cent. on the actual collections. Mr. Abdul Aziz having been driven away from Section 152, has referred to Section 151, and we are strongly of opinion that if there is power in this Court to set aside the original sum we ought to do it, to prevent what would be manifestly unjust, namely that the lady should have to pay a sum of Rs. 1,430 simply and solely on account of an admitted error by some party. We therefore, decide that this is a case in which the prayer of the petitioner may be granted, and we therefore, order: that for the sum of Rs. 2,147 mentioned at page 11 of the typewritten judgment, there shall be substituted the sum of Rs. 717, and that the consequential alteration of the figures in the last line at page 11 shall also be made, namely that Rs. 824 shall be substituted for the sum of Rs. 2,254, and that all consequential alterations in the decree shall be made.

(3.) As this application appears prima facie to have been occasioned by the mistake of the plaintiffs advisers, we order that Mt. Dilafroz Begam to pay to Mt. Nawasi Begam the costs of this application together with fees on the higher scale.