SOMAIRA Versus Haji ABDUL JABBAR NASAR

ORDER

It is a pre‑emption case based upon the qualification of co‑sharership. The trial Court had decreed it on the 21st of December, 1987, but the same was reversed by the lower appellate Court.

2. Attention has been drawn to C.M.No.3389/C of 1988 whereby permission was sought to amend the plaint so as to add that the three 'talabs' required in Shariat for a pre‑emptor were actually observed in this case. It was explained that. since previously observance of these 'talabs' was not necessary, no reference to it was made in the plaint. It was further averred that need to make such `talabs' was held necessary m Sardar Ali and others v. Muhammad Ali and others P L D 1988 S C 287 and Government of N: W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 S C 360, that is after filing of the suit and, therefore, the plaint may be allowed to be suitably amended so as to include this element as a necessary ingredient of exercising right of pre‑emption in Shariat. Learned counsel for the respondent seriously objected to it. They have filed an affidavit denying if any such `talabs' were observed before filing the suit.

3, Learned counsel for the petitioner placed reliance upon Mst. Ghulam Bibi and others v. Sarsa Khan and others P L D 1985 S C 345 maintaining that amendment of pleading could be allowed even at late stage. In this case, according to him, it was allowed by the Supreme Court so as to convert the suit filed for a mere declaration into one for specific performance. He submitted that in the case under consideration neither the character thereof nor the nature of the cause of action would be changed and, therefore, the amendment was just a sort of incidental matter which though observed yet was omitted to be mentioned because of the prevalence of old law on pre‑emption.

4. The amendment was opposed primarily on the ground that it could not be introduced as a new ground, all the more when it related to a question of fact, which was categorically traversed in the counter‑affidavit. The rule laid down in Muhammad Shoaib and others v. Member (Revenue) and others P L D 1988 S C 355 was somewhat broad‑based, applying invariably to all cases of pre‑emption brought even on the qualification of co‑ownership or contiguity etc. There was no mention of observance of the 'talabs' in this authority. May be that the idea was to rule out all possibilities of re‑opening the Pindoras Box by allowing amendments in each individual case from a back date when there was no concept of any potential pre‑emption making the typical `talabs' and any overture on the point would have been surely untrue. Allowing amendment on an assertion which in the circumstances had not even a remote chance of being correct, was rightly said to be helping falsehood. The C.M. is dismissed.

5. The position otherwise is quite simple The petitioner's right based upon co‑sharership m the Khata cannot be saved. The decree in this case was passed on the 21st of December, 1987, for the first time and obviously was of no consequence. The crucial date was the 31st of July, 1986. According to the rule laid down in the Sardar Ali and other's case, Sharik will apply to it and the suit has to be dismissed.

6. There is another case also recently decided by the Supreme Court on the same tenor. It is reported in Sher Muhammad and another v. Allah Ditta and 2 others P L D 1988 S C 412 which affirms the decision of this Court dismissing a suit in spite of the qualification of co‑ownership taken up in the plaint.

7. As a result, the revision petition is dismissed in limine.

H.B.T./S‑268/L Revision Dismissed.