MUHAMMAD ANWAR and 8 others vs MUHAMMAD ASHRAF

ORDER

JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 27-9-2000 passed by Lahore High Court, Lahore, whereby R.S.A. No,362 of 1983 preferred on behalf of the petitioners has been dismissed.

2. Briefly stated the facts of the case are that the petitioners purchased land measuring 91 Kanals, 8 Marlas in Mauza Hast Khewa, Tehsil Chiniot for consideration of Rs,1,00,000 and got it registered vide sale-deed dated 9-4-1978. The respondents filed a suit on 9-4-1979 for pre-empting the said sale on the basis of superior right of pre-emption and impleaded one Muhammad Hayat as vendee/defendant though there was no such vendee by the name of Muhammad Hayat. The respondents submitted an application on 7-2-1980 for substituting the name of Umer Hayat as a defendant/vendee with that of Muhammad Hayat on the assertion that Muhammad Hayat was also known as Umer Hayat. The application was rejected by learned trial Court and suit was also dismissed vide judgment and decree dated 16-6-1983 as it mainly prevailed upon the learned trial Court that the suit was hit by partial pre-emption and the sale was indivisible as the share of Muhammad Hayat could not be separated. Being aggrieved the respondents preferred an appeal under section 96, C.P.C. Which was accepted by the learned District Judge on 13-12-1983 and the suit of respondents was decreed subject to payment of Rs,1,00,000 as price of the suit land. The judgment dated 13-12-1983 passed by learned District Judge was assailed before Lahore High Court, Lahore, by means of a Regular Second Appeal which has been dismissed vide impugned judgment.

3. We have heard Kh. Muhammad Farooq, learned Advocate Supreme Court on behalf of the petitioners who mainly argued that the substitution of name should have not been allowed as it was not misdescription of a party but that of non-impleading of a necessary party who was sought to be impleaded as a defendant after the expiry of the period of limitiation. It is urged with vehemence that it was not a case of amendment under Order VI, Rule 17, C.P.C. But a case of addition of party under Order I, Rule 10(2), C.P.C. And accordingly the provisions as contained in section 22 of Limitation Act, 1908, were fully attracted which aspect of the matter escaped notice and resulted in serious prejudice. It is urged with vehemence that the addition of a new defendant cannot by any stretch of imagination be called a matter falling in the realm of procedural law especially when a vested right had accrued to the petitioner under the law of Limitation. In order to substantiate his plea reliance has been placed on AIR 1961 Supreme Court 325; AIR 1940 Calcutta 153; 1984 CLC 358. It is also argued that the sale being indivisible, omission of the correct name of the vendee from the array of defendants had rendered the pre-emption suit defective which was liable to be dismissed and by allowing the amendment under the garb of "correction of misdescription" the learned High Court had deprived the petitioners of their vested right to get the suit dismissed.

4. We have carefully examined the view-point as canvassed by Kh. Muhammad Farooq, learned Advocate Supreme Court on behalf of petitioners and perused the impugned judgment. We have also examined the entire record with the assistance of learned counsel. No doubt that the name of co-vendee "Umer Hayat" has been mentioned as "Muhammad Hayat" but it hardly makes any difference for the reason that there is no mistake whatsoever regarding the name of parentage. It reflects from the scrutiny of record that Mst. Jallan, their gardian ad litem, had two sons with the names of Muhammad Hayat and Qamar Abbas against whom suit had been filed which aspect lends support to the fact that factually Umar Hayat was intended to be impleaded as a party. In our considered view non-mentioning of the correct name, at the best can be considered as a lapse or omission and amounts to misdescription of a party and is always subject to correction which can be made by invoking the provisions as contained in section 153, C.P.C. And technicalities should not be allowed to stand in the way of justice because procedure ought not to be used for purpose of defeating justice and technicalities of procedure have to be avoided. "Independent of express jurisdiction conferred on Court by section 153 of Civil P.C., the Court also possessed inherent powers for allowing an incorrect description of a party in the pleading to be corrected.

Reference with advantage can be had to the ruling in AIR 1961 Pat. 480; PLD 1979 Pesh. 31". Safiullah Khan v. P.I.A. Officers Cooperative Housing Society 1992 MLD 967. It is worth mentioning that such bona fide mistake or misdescription can be rectified at any time and no time limit whatsoever has been specified under section 153, C.P.C. In this regard we are fortified by the dictum laid down in case titled Ghulam Nabi v. Sardar Nazir Ahmad 1985 SCMR 824. Besides that, in such-like eventualities the averment made in the plaint and relief sought for can also render substantial assistance to remove any confusion regarding misdescription of the party. A bare perusal of the plaint and relief prayed for would lead to draw the only irresistible conclusion that the suit was filed against two real brothers and through their guardian ad litem namely Mst. Jallan and due to an inadvertent omission or bona fide mistake the name of Umer Hayat has been mentioned as Muhammad Hayat and correction whereof by the Court, by no stretch of imagination can be considered as prejudicial. In our considered opinion the "valuable rights" could not be created on the basis of a bona fide mistake and hence the question of its infringement does not arise as pressed time and again by the learned counsel for the petitioners. The respondents cannot be knocked out on the ground of partial pre-emption as a bona fide mistake does not furnish any base for the formulation of such an extreme view as canvassed by the learned counsel for the petitioners. It is worth-mentioning here at this juncture that the provisions as contained in Order I, Rule 10, C.P.C. And Order IV, Rule 17, C.P.C. Have no nexus with the controversy in question and only the relevant provisions as contained in section 153, C.P.C. Could be invoked to clarify such an anomalous condition which have rightly been invoked for rectifying the error as mentioned hereinabove. We may point out that the suit has not been instituted against a wrong person but a right person whose correct name could not be mentioned due to an inadvertent omission.

5. In the light of foregoing discussion this petition being devoid of merit is dismissed.