NABI BAKHSH vs EHSANUL HAQUE And Other
The petitioner, a pre-emptor, sought leave to appeal against a Lahore High Court judgment that upheld the trial court's decision allowing the respondents to amend their written statement in a pre-emption suit. The respondents had previously failed in attempts to amend their written statement to introduce a claim of a superior right of pre-emption based on a gift. Following these failed attempts, the respondents obtained a consent decree regarding the same gift and subsequently filed a new application to amend their written statement, asserting the gift and the decree as a superior right, alongside a challenge to the repugnancy of pre-emption law to the Quran and Sunnah. The petitioner contended that the amendment was inordinately delayed, barred by the principle of constructive res judicata, and constituted an abuse of the court's process. The Supreme Court granted leave to appeal, determining that the legal points raised regarding the propriety of allowing such amendments after previous failed attempts and the application of constructive res judicata required further examination by the Court.
- Can a defendant amend a written statement to introduce a plea that was previously rejected by the court?
- Does the principle of constructive res judicata bar an application for amendment of a written statement if a similar request was previously denied?
- Does the obtaining of a consent decree on a matter previously rejected in a pending suit justify a subsequent amendment to the written statement?
- Order VI Rule 17, Code of Civil Procedure 1908
- Order XVI Rule 1, Code of Civil Procedure 1908
- Order XIII Rule 2, Code of Civil Procedure 1908
ORDER
SHAFIUR RAHMAN, J.--The plaintiff pre-emptor seeks leave to appeal against the judgment of the Lahore High Court, dated 4th of December, 1983 whereby a revision petition filed by him objecting to the amendment of the written statement allowed by the Civil Judge 1st Class, Rahimyar Khan, was dismissed.
2. The petitioner instituted a civil suit pre-empting a sale of land by a registered deed, dated 2-7- 1975. The suit was contested. At the concluding stage of the trial, the respondents filed three applications. The first application was for amendment of the written statement under Order VI, rule 17, C.P.C. Claiming equal or superior right of pre-emption on the basis of a gift. The second application was under Order XVI, rule 1, C.P.C. For permission to file a list of additional witnesses. The third was an application under Order XIII, rule 2 of the C.P.C. For permission to produce three documents mainly to substantiate the claim set out in the first application. These applications were made in the middle of 1978 and were all dismissed. The petition for leave to appeal (C.P. No. 131/79) also failed. The defendant respondents thereafter approached the civil Court and obtained a consent decree in respect of the same gift supported by the same documents whose production was refused earlier. Equipped with a decree of the civil Court with regard to the gift, the respondents again moved application--This time for amendment of the written statement alone taking up mainly two additional grounds. The first was that the Pre-emption Law was repugnant to the Quran and Sunnah and such could not be enforced by the petitioner against them and secondly setting up the superior right of pre-emption on the basis of the decree and gift allegedly made prior to the purchase or the pre-emption suit of the petitioner. The trial Court allowed this amendment. The High Court did not interfere in revision.
3. It is submitted by the learned counsel for the petitioner that such an application was inordinately delayed as the facts were known to the respondents when they submitted their first written statement and even afterwards when they submitted the first two applications in the middle of 1978 but did not get the written statement amended with view to set up such a plea. Besides, it is contended that such a prayer as was made was barred by the principle of constructive res judicata as their earlier effort to get the same matter noticed in the pending suit had failed, finally, it is contended that in the context of the proceedings between the parties such a prayer and its acceptance clearly amounts to an abuse of the process of the Court which should at all costs be discouraged.
4. We consider that the points raised are of law and require further examination. Leave to appeal is, therefore, granted. Security Rs.2,500. Interim order to continue.