ABDUL KAREEM Versus ZARAM HUSSAIN

1. Petitioner was defendant in the pre-emption suit. He purchased suit property consisting of 56 Kanals from Sawar Khan for Rs.1,00,000, vide sale-deed registered on 13-10-1980. Karam Hussain, pre-empted the sale and brought a suit against the vendee on 28-2-1981 in the Court of Civil Judge, Kahuta. He offered Rs.28,000 and pleaded that rest of the sale price mentioned in the sale deed was fictitiously entered so as to stave off the better right of the plaintiff. Superior, right was claimed on the ground of being co-sharer, owner of the property and Sharik Buna. Vendee resisted the suit. It was pleaded that as the plaintiff was instrumental in bringing about the pre-emptive sale, he was estopped to sue; that the suit was collusive; that the valuation for court-fee and jurisdiction had been incorrectly assessed.

2. On merits, the averments of the plaint were denied. It was alleged that the suit property was purchased for Rs.1,00,000 and the same was its market value also. Right to pre-empt was also denied.

3. Trial Court settled following issues for determination.

(1) Whether the plaintiff is estopped to file this suit? O.P. D.

(2) Whether the suit was collusive? O.P.D.

(3) Whether the suit has incorrectly valued for the purposes of court-fee and jurisdiction? O.P.D.

(4) Whether the plaintiff has a superior right of pre-emption? O.P.P.

(5) Whether the ostensible sale price of Rs:1,00,000 (one lac) was fixed in good faith or actually paid? O.P.D.

(6) If not, what was the market value of the land? O.P. Parties.

(7) Relief.

4. After the issues were settled, suit was postponed for evidence. Plaintiff relied on copy of 'jamabandi' for the year 1977-78, Exh. P.1, an extract from 'Khasra Girdawari' Exh. P.2 and closed affirmative evidence on 14-12-1981, reserving the right to appear both in affirmative and in rebuttal after the close of defence. Meanwhile, Raja Abdul Rauf, Advocate was appointed as Local Commissioner to determine the market value of the suit property. His report was received on 25-1-1982. Defendant-vendee was not satisfied with result of Local Commissioner's enquiry and filed objections. To resolve the objections, an issue was framed on 27-2-1982. Civil suit thereafter, as the counsel states, was again adjourned for evidence. However, defendant did not produce any defence and closed his case on 7-5-1983. It appears, on 24-5-1982, plaintiff applied for leave to amend the plaint. It was alleged that due to an oversight and inadvertent error, plaintiff had claimed superior right on the ground of being "Malik Raqba", whereas, the real intent and import of the plaintiff was that he was owner of the estate (Malik Deh) and in consequence it was prayed that instead of the word "Malik Raqba", plaintiff be permitted to substitute for it the word "Malik Deh". Amendment application was entertained by the Court. Defendant vehemently opposed the application. Syed Sultan Ahmed Shah, learned Civil Judge, Incharge of the suit, vide his order, dated 29-6-198w,, permitted the plaintiff to, make the necessary amendment in the plaint subject to payment of cost of Rs.100. Defendant felt aggrieved and preferred a revision in the Court of learned District Judge, Rawalpindi. However, it was heard and decided by learned Additional District Judge, who disagreed with the view of the trial Court, in allowing amendment and found that the plaintiff, in the circumstances of the case, could not be permitted to amend the pleadings. Consequently, revision was accepted and order of the trial Court dated 29-6-1982, was set aside. Revisional order was assailed in constitutional jurisdiction (W.P. 162 of 1983) at the instance of Karam Hussain, plaintiff. Petition did not succeed and was dismissed on 27-11-1984 by a learned Single Judge of this Court. To quote, learned Judge observed:

5. " ..In support of the present writ. considerable arguments have been raised. It was urged that the discretion exercised by the trial Court could not have been interfered with in Revision. that allowing amendment was not a 'case decided' so as to have called for the invocation of section 115, C.P.C; that acceptance of costs had disentitled the respondent from agitating against the amendment; that the addition of a qualification for pre-emption was not setting up a new case, and that the writ in such an event was most appropriate remedy. Copious references were made in support of each of these points.

6. In reply, however, at the outset an objection was taken that the order being of interlocutory nature, no writ would lie. Muhammad Hussain v. District Judge, Sheikhupura etc. 1981 Law Notes (Lah.) 456 was relied upon. 1t can hardly be denied that the order of allowing or refusing amendment of pleadings is essentially of interlocutory nature. The suit is still said to be pending and evidently it could be agitated in any possible appeal. This ordinary remedy has to be exhausted. Reliance was placed on Munir Ahmad v. Additional District Judge, Muzaffargarh 1983 CLC 113, wherein an order passed in Revision petition by the learned District Judge was set aside by the High Court in a constitutional writ as it was found to be against law. A perusal of this authority shows that no objection as to the maintainability of writ was raised on the ground that the order of the trial Court or for that matter of the revisional Court was interlocutory as could not be called in question through the writ petition. Accordingly, this authority will not help the petitioner as against the clear rule laid down in Muhammad Hussain's case. The chance to assail the order in any appeal still remains to be availed and hence the writ was incompetent. It is dismissed leaving the parties to bear their own costs."

7. After the suit went back to the trial Court, its merits were examined and the Court on the analysis of evidence placed before it found that the plaintiff was not a co-sharer in the joint Khata fror which the suit property was sold and, accordingly, dismissed the suit on 9-7--1985. Issues Nos. 1, 2, 3 and 5 were not shown pressed and accordingly, were found in the negative. On issue No.6 trial Court found "in the absence of any proof contrary to the value as fixed in the registered sale-deed the same is treated to be correct," In two separate appeals, one by the pre-emptor and the other by the vendee, trial Court's decision was disputed before the District Court. Appeal preferred by Abdul Karim was dismissed while that preferred by Karam Hussain, plaintiff was allowed on 15-11-1986 by learned Additional District Judge, Rawalpindi. Learned appellate Judge found the case for amendment for the plaintiff and after allowing amendment in the plaint remanded the case to the learned trial Judge for its decision afresh after providing the parties opportunity to produce fresh evidence. As the order of remand is in question, it will serve some useful purpose if an extract from the order of the learned Additional District Judge, is reproduced. It reads:-

8. ... .. That the amendment sought by the appellant in the plaint seems to be an accidental, penslip and a clerical mistake as in Urdu written "Malik Deh" and "Malik Raqba" carries very minor difference this seems to be a clerical mistake. Moreover, "Malik Raqba" is no qualification in a suit for pre-emption, hence to write "Malik Raqba" show qualification also shows that it has been written inadvertently instead of "Malik Deh". In such circumstances, I accept the appeal and set aside the judgment and decree passed by the learned trial Court dated 9-7-1985 and allow the amendment in the plaint subject to payment of Rs. 1, 000 as costs as "Malik Deh" instead of "Malik Raqba" and remand the case to the learned trial Court for afresh decision after providing the parties opportunity to produce their fresh evidence."

9. With the order of remand, defendant was not satisfied, who seeks to have it revised.

10. Mr. Muhammad Younas Bhatti, Advocate, on behalf of Abdul Karim, addressed the Court and raised two points; (1) that the earlier order passed in revision by learned Additional District Judge setting aside the order of the trial Court allowing amendment had attained finality and could not have been interfered with in the subsequent round of litigation by a Court of co-ordinate jurisdiction, moreso when even the High Court did not cause interference in its constitutional jurisdiction; and (2) powers of amendment though wide, could not be used so as to add an additional ground and to permit the pre-emptor to let in fresh evidence so as to fill in the wide gaps in his evidence left by him in the trial Court. As against this, Mirza Anwar Baig, Advocate, argued that it was merely a clerical error which was allowed to be corrected by the Court of appeal and that in law there are no fetters on the powers of the appellate Court to permit such corrections in the exercise of its wide powers under Order VI, rule 17, Civil P.C. read with sections 151, 152 of the Civil P.C. Learned counsel also urged that earlier revisional order did not provide an insuperable obstacle to prevent the Court from exercising its powers of amendment. Counsel also heavily relied on the observations of the learned Single Judge made in his order, dated 27-11-1984.

11. This petition raises two points; (1) whether order, dated 29-3-1983 of learned Additional District Judge passed in reversionary jurisdiction acted as an effective bar for the Court of appeal to allow amendment of pleading; and (2) whether a proper case was made out for amendment of plaint, and remand -of the suit with opportunity to the plaintiff, to let in fresh evidence in support of the pre-emption claim. As put above, question of amendment was contended both on plane of legality as also its propriety. After hearing learned counsel at length and examination of the case-law, I find that the impugned order of remand permitting amendment and remand of the case cannot be sustained. A look at the plaint would reveal that plaintiff had claimed superior right as co-sharer, "Malik Raqba" and Sharik Buna. Defendant joined issues and denied that the plaintiff had any better right. In support of the right claimed, plaintiff relied on copy of "Jamabandi" for the year 1977-78, EXh.P.l, copy of "Khasra Girdawari" Exh. P.2 and recorded his own statement as P.W.1. Whole of his evidence both affirmative are rebuttal seemed to have been concluded on 7-3-1985. A perusal of statement of P. W.1 shows that he did not claim that he was owner of the estate or "Malik Raqba". His whole emphasis was on the ground of co-sharership. Exh. P.1 relied on, showed that he was co-sharer in Shamlat but not in the property sold. In the circumstances, evidence led did not adequately prove that he was a co-sharer and the trial Court accordingly dismissed his suit. It is correct that in the plaint he had also said that he was "Malik Raqba". Whether or not the term "Malik Raqba" would be synonymous with the term owner of the estate, the plaintiff did not lead an iota of evidence to support that he was either an owner of the estate or owner of some property assessed to land revenue in the revenue estate. Even without amendment of the plaint, he could have led some evidence to show that he was owner of some property which conferred a better right on him. Learned Additional District Judge, in the earlier round of litigation, had found that amendment amounted to addition of a new ground and could not be permitted. Whether or not it was an additional ground, one thing was sure that the order of trial Court allowing amendment was set aside in, revision. This order, as is given above, was upheld by the High Court also. The question which arises for consideration is whether in presence of this order, the Court of co-ordinate jurisdiction was possessed of any power to allow amendment holding it to be a clerical error. I have anxiously considered this question, and, on its closer examination on issue of amendment, I am of the opinion that the revisional order had put a final seal and learned Additional District Judge in hearing the appeal against the offending final decree lacked competence to allow amendment on the same question. In thinking so, I do not find myself alone. This Court has already held so in Baqa Muhammad v. Muhammad Nawaz and others P L D 1985 Lah. 476. Relevant observations which are found at pages 482, 483, may with advantage be referred to. It reads:-

12. By reading the two judgments of the Supreme Court, one in the case of Abdul Aziz Shah v. Abdul Ghafoor and the other in the case of Zulfiqar Ali v. Akhtar Islam, the principle which one can deduce is that in cases where the revisional Court has dealt with the merits of the question raised before it and has expressed its opinion one way or the other irrespective of the fact that the revision was dismissed in limine or after contest and hearing the parties, the decision made cannot be considered merely as of supervisory nature as such a decision does constitute a rejection of the pleas raised in the revision petition. But in cases where the revisional Court has not allowed invocation of revisional jurisdiction on one or the other ground, for instance the order passed does not amount to a case decided or the person seeking interference is not entitled to invoke the revisional jurisdiction, the order passed dismissing the revision petition in limine or refusing to exercise revisional jurisdiction would not debar the appellate Court, from examining the error, defect or irregularity in the order passed during the progress of the suit as such an order can be assailed in the appeal filed against the final decree in view of the provisions contained in section 105, C.P.C.

13. In the instant case in the revisional jurisdiction the question of permission to amend the written statement so as to take the plea that the permission granted by the learned trial Court was withdrawn and the application for amendment of the written statement was dismissed. This order was also not interfered with in constitutional jurisdiction. This order passed in revisional jurisdiction in presence of the parties will bind the parties and will amount to rejection of the contention raised by the appellant vendee. He, therefore, cannot re-agitate the same question by making reference to the provisions of section 105, C.P.C."

14. Apart from these weighty observations which fully support the point taken by the learned counsel for the petitioner, the matter can be looked at yet from another angle. The propriety of amendment was examined by the revisional Court and it was found that permission could not be granted. This order unless set aside by a superior Court, attained finality. Its binding force could not be whittled down in the subsequent round of litigation by a Court either lowerer in status or that of coordinate jurisdiction. The view taken also receives adequate support from a decision of their Lordships of Supreme Court of Pakistan in Abdul Majid and others v. Abdul Ghafoor Khan and others P L D 1982 S C 146. Apart from the legality, impugned order, on the score of propriety was also open to serious objection. Plaintiff could not be said to be unaware of the grounds on which he asserted his superior right. It was he who came to the Court to claim substitution for the vendee. He could have brought evidence to prove that he was owner of revenue-assessed property in the village. It seems, the plaintiff was confident of his success on the first ground and may be for this reason he did not advert to the other ground of "Malik Raqba". Having failed to substantiate his superior right, plaintiff could not have been allowed another opportunity to lead evidence to prove that he was owner of the estate. In fact, amendment was aimed at reopening of the trial de novo to bring in more material to support pre-emption which was not a permissible course for the plaintiff. He should have shown more vigilance in prosecution of his case. In the negligence of the plaintiff, defendant had earned a right to stay on the suit property of; which he could not be rightly deprived. It is correct that powers to allow amendment are wide and that these powers are to be liberally exercised but whether the leave to amend should be granted or refused depends on the facts and circumstances of each case. In this case, looking to the nature of the claim, conduct of the plaintiff, revisional Court was right in refusing amendment which chapter was closed and could not for the benefit of pre-emptor be reopened in appeal. In my, opinion, both on plane of legality as also on propriety, learned Additional District Judge was erroneous in allowing amendment and remanding the suit for its decision afresh with opportunity to the plaintiff to let in more evidence. For the above various grounds, this revision is bound to succeed. Accordingly, it is allowed impLfgned order is set aside and the case is remanded to learned District Judge, Rawalpindi, for decision of the appeal afresh in the light of the evidence already on record. No.l order as to costs.

15. A.A. Revision allowed