MUHAMMAD DIN Versus MST. NAWAB BIBI

This civil revision arose out of a pre‑emption suit, which was decreed in favour of the respondent against the petitioner in respect of a piece of land, which had been sold by respondent's son and was sought to be pre‑empted by her on the basis of her relationship with the vendor.

2. On the pleadings of the parties, the trial Court had framed a number of issues but the learned counsel for the petitioner calls in question the findings of the lower Court only on issues Nos.3 and 5 which are reproduced hereunder:‑

Issue Nos. (3) Whether the plaintiff has not come to this Court with clean hands, if so what effect?

(5) Whether the plaintiff has a superior right of pre‑emption?

3. With regard to issue No.3, he submits that the respondent had filed a suit for the benefit of special attorney, who even today is present outside the Court room, and it should have been decided in favour of the petitioner. There is no substance in this contention. The respondent entered the witness‑box as her witness and emphatically asserted that she had filed the suit for his own benefit. No reliable evidence was produced by the petitioner to substantiate his objection embodied in this issue, which was rightly decided by the Courts below.

4. So far as issue‑ No. 5 is concerned, he submits that the petitioner has a superior right of pre‑emption on the ground of his tenancy but unfortunately his counsel, while drafting the written statement, could not incorporate it therein and when this omission came to his notice he, while filing the revision in this Court in the year 1983, made an application for the amendment of the written statement seeking permission to incorporate therein this defence plea and if he is allowed to take up this objection, he shall defeat the respondent because his right based on tenancy would definitely be superior to that of his opponent based on her relationship with the vendor. He contends that the application for amendment of the pleadings is supported by the entries of revenue record, which shows that the petitioner at the relevant time, was tenant of the suit land.

5. The application has been opposed on behalf of the respondent on the ground that no cogent reason has been advanced by the petitioner seeking amendment of his written statement at such a belated stage, particularly when he never asserted the fact of his being tenant of the suit land neither before the trial Court during the course of his statement nor before the appellate Court. I am inclined to agree with the contention of the learned counsel for the respondent that the amendment sought for by the petitioner at this belated stage cannot be allowed, merely on the ground that his counsel, while drafting the written statement, was not very attentive.

6. Therefore, the application for amendment is disallowed. Consequently no fault can be found with the findings of the Courts below on the issue in hand, as the respondent, on the basis of her collateral ship with the vendor, had definitely superior right of pre‑emption as against the petitioner.

7. In view of the above, there is no substance in the revision and the same is dismissed.

A.A./M‑311/L Revision dismissed.