WALI MUHAMMAD Versus DIN MUHAMMAD

1. In this revision under section 115, C.P.C. order dated 20‑9‑1986 passed by the learned Civil Judge, First Class Sheikhupura passed on an application under Order VI, Rule 17, C.P.C. for amendment of the written statement in a pre‑emption suit had been assailed. The application of the petitioner‑defendant was dismissed mainly on the ground that it has been belatedly filed.

2. The learned counsel for the petitioner contends that the basis of rejection of the application is the alleged delay in filing the same. He contends that delay alone is not sufficient to warrant dismissal of the application as has been held by the Supreme Court repeatedly. He in this regard relied upon Mst. Ghulam Bibi and others v. Sarsa Khan and others P L 'D 1985 SC 345.

3. The learned counsel for the petitioner next contended that even when a case was pending in the highest Court viz. the Supreme Court, amendment was allowed in the pleadings.

4. The last contention of the learned counsel for the petitioner was that the case is still at the initial stages and no delay in final adjudication would be caused if the amendment is allowed.

5. On the contrary, the learned counsel for the respondent‑ submitted:

1. That the sole intention of the petitioner is to cause delay in the final adjudication of the matter and that is why the amendment has been sought for.

2. That even if the amendment is allowed this will make no material difference in that the land would still remain pre‑emptible as village immovable property.

6. Having given consideration to the controversy I am of the view that in order to ensure effectual and complete adjudication of the controversy between the parties and also to eliminate the chances of delay in adjudication of the main case, the trial Court should have allowed the amendment. In effect, by not allowing the amendment more delay has been caused than it would have been if the amendment had been allowed. The case being still at the stage of evidence, if the amendment had been allowed this would have made no material difference as issue arising out of the amendment could be decided alongwith the other issues.

7. The contention of the learned counsel for the petitioner that delay alone cannot be made the basis of rejection of an application for amendment of the pleadings finds support from the authority of the Supreme Court cited by him and the trial Court has, therefore, by not taking into consideration the said authority acted with material irregularity.

8. As regards the contention of the learned counsel for the respondent that even if the amendment is allowed it will make no material difference as the property would remain pre‑emptible. I suffice by observing that this point being such which would fall for determination before the trial Court I would rather not comment on it lest it causes prejudice to any of the parties.

9. In view of the foregoing position allowing this petition I would set aside the impugned order of the learned Civil Judge dated 20‑9‑1986. The result is that the application of the petitioner for amendment in the written statement so as to incorporate a preliminary objection to the effect that the land in dispute is Banjar Kadeem and as such not pre‑emptible stands allowed. The petitioner/defendant) shall file amended written statement on the next date fixed before the trial Court viz. 26‑2‑1987 so that no delay is caused in the fine adjudication of the matter.

10. In the attendant circumstances of the case, there will be no order as to costs.

11. A.A./W‑30/L Revision accepted.