GHULAM NABI vs Sardar NAZIR AHMAD

ZAFFAR HUSSAIN MIRZA, J.--This appeal by right is directed against the judgment and decree passed by a Division Bench of the Lahore High Court, Lahore, dated 15-10-1983, whereby the regular first appeal filed by the respondent was allowed and his suit for possession through pre-emption was decreed, after allowing the amendment of the plaint.

2. The subject-matter of dispute between the parties relates to agricultural land measuring 340 Kanals, 3 Marlas situate in village Chuharkana, Tehsil and District Sheikhupura. By a registered sale deed, dated 13-9-1975 the owner of this land, one Farzand Ali, sold the same to the appellant. On 28-9-1976, the respondent filed a suit for possession by means of pre-emption on the ground of his being a collateral of the vendor in the same estate. The appellant contested the suit on several pleas but it is only necessary to mention that one of the pleas taken by him in his written statement was to the effect that the suit was not maintainable as it was for partial pre-emption. It was also averred in the written statement that the details of the subject land were incorrectly mentioned.

The trial Court framed several issues on the pleadings of the parties including issue No.3 which was in the following terms:- "Whether the suit is bad for partial pre-emption?" O.P.D.

After the conclusion of the evidence the trial Court heard the arguments of the parties and fixed the case for judgment on 11-3-1979. However, as the respondent realized at this stage that while describing the subject, matter of suit comprised in the sale transaction certain omissions and mis- descriptions crept into the plaint, he applied on 5-3-1979, under Order VI, rule 17, C.P.C. For amendment of the plaint to correct the description and bring it in accord with the description of the subject --matter in the sale-deed. The trial Court rejected the application mainly on the ground of delay and carelessness on the part of the respondent to take steps to correct these errors within a reasonable the. Having thus refused the plaintiff to amend the plaint the trial Court dismissed the suit of the respondent on the same ground, namely, that the suit suffered from the defect of partial pre-emption, in so far as Khasra No.5202 (comprising an area of 8 Kanals 9 Marlas) was omitted from the claim for pre-emption. It may be stated that in the plaint one Khasra number was described as Khasra No.506 instead of Khasra No.5062, Khasra No.5260 was written as 5260; Khasra No.5170 was written as 517; Khasra No.1938/1 was written as 1938 and as already stated Khasra No.5202 was omitted.

3. Being aggrieved by the dismissal of his suit by the trial Court the respondent came up in appeal before the Lahore High Court which was allowed with the result as stated earlier. This appeal was then directly filed by the present appellant (defendant) as of right.

4. It has been urged by Mr. Zakiuddin Paul that the conduct of the respondent being patently negligent amounting to contumaciousness the High Court had fallen into an error in accepting his plea for amendment in appeal. In this behalf it was pointed out that the respondent was put to notice about the defects in the plaint as early as the filing of the written statement, yet he neglected to apply for correction of these errors and omissions instead allowed the trial to proceed on the basis of defective plaint only to apply for amendment at the eleventh hour before the announcement of the judgment of the trial Court. According to the learned counsel the trial Court was, therefore, justified in rejecting the prayer for amendment to remove the defects which went to the root of the suit and were fatal to the claim of the respondents. On a careful consideration of the arguments advanced by the learned counsel, we, however, find no force in them. Section 153, C.P.C.

Preserves the power of the Court to amend, inter alia, any proceeding in a suit at any the and Order V1, rule 17, C . P. C . Vests the Court with the power to allow any party to amend his pleadings particularly when such amendment is necessary for the purposes of determining the real question in controversy between the parties. This power in the express terms of the provisions quoted can be exercised at any the during the pendency of such proceedings and even after the passage of the decree at the appellate stage. There is authority for the proposition that correction regarding the description of the property in dispute can be allowed. From the nature of the errors in the description of the property in this case, it is quite clear to us that these errors and omissions were accidental and no part of the property was intentionally omitted from being included in the claim set up in the suit. This is clear from the facts that the suit itself was brought in order to pre-empt the sale as a whole and it appears that long before the application for amendment was submitted, during the evidence the respondent had produced the copy of the registered sale --deed and the mutation pertaining to it. The appellant was, therefore, on notice as to the claim of the respondent to have extended to the entire property under sale on which the suit was based. No detailed averment with reference to the correct description of the portions of the property which were either mis-described or omitted from being included in the plaint, was made in the written statement nor was an issue raised specifically in this behalf. In such circumstances as held by this Court in Wazir Muhammad v. Abdul Aziz 1982 SCMR 189 the omission was obviously a clerical error and so was the mis-description.

5. There is no dispute at this stage about the superior right o1 the respondent to pre-empt the sale in question and there can be no doubt, in the facts of this case, that the errors of omissions and mis-descriptions were accidental or clerical which had inadvertently crept into the plaint at the the of its preparation the only question emphatically pressed is that whether the respondent was disentitled to the indulgence shown to him for being allowed to amend the plaint on- the ground o1 delay. In this behalf it was argued on behalf of the respondent that his attention was drawn to this aspect of the case only at the the of final arguments before the trial Court. This seems to be the correct position as it is quite possible that the respondent may have remained under the impression that he has put in a claim on the basis of sale, which included the entire property, comprised therein. From the evidence led by the parties at the trial copies of which he has been placed on the record of this appeal, also there does not appear anything to point out that the property was mis-described or certain portions of the property under sale was omitted from the suit. As already pointed out amendments of the pleadings can be allowed at any stage even at the stage of appeal in the highest Court. For example in Karamat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC 191 and Secretary to Government of West Pakistan and others v. Kazi Abdul Kafil PLD 1978 SC 264, this Court allowed amendment for the first the in the pleadings. We are unable to agree with the contention that any right had accrued in favour of the appellant on account of the errors which could not be taken away by means of the amendment of plaint.

Similarly there is no question of the bar of limitation in the circumstances of this case as the suit having been brought within the qua the sale in the suit, mere supplying of omission in the description of the property does not attract the objection on the ground of limitation. In basing the order of refusal to allow amendment on the ground of omission, therefore, the trial Court fell into an error in refusing to exercise jurisdiction lawfully vested in it.

6. For all the aforesaid reasons, we find that no exception can be taken to the judgment of the High Court. The appeal, therefore, fails and is accordingly dismissed with costs.