QAMAR-UD-DIN vs MUHAMMAD DIN and others

NAZIM HUSSAIN SIDDIQUI, J.---Petitioner Qamar-ud-Din, has impugned judgment dated 1-3-2000 of a learned Judge in Chamber, Lahore High Court, Rawalpindi Bench, whereby Writ Petition No,1726 of 1999 was allowed.

2. It is a pre-emption matter relating to land, measuring 35 Kanals and 13 Marlas, situated in village Kot Shera, Tehsil Talagang, District Chakwal, Ghulam Mohi-ud-Din and Muhammad Hussain, the respondents Nos.2 and 3 respectively filed a suit for possession through right of Pre-emption before learned Civil Judge, First Class, Talagang against Qamar-ud-Din, petitioner, Muhammad Din respondent No, 1/rival pre-emptor also brought such suit against petitioner. The matter was contested by the parties. It is alleged that after 3 years and 6 months respondent No,1, moved an application, under Order 6, Rule 17, C.P.C. For amendment in the plaint, alleging that due to inadvertence the date of knowledge was shown as 5-1-1995 instead of 28-12-1994 and the latter date was clearly mentioned in the notice of Talb-iIshhad. It was sent to the vendee i,e, the petitioner. Learned trial Court vide order dated 6-11-1998 allowed amendment, subject to the payment of Rs,1,000 as costs.

3. The petitioner and respondent No,2 through separate Civil Revisions challenged above order before learned Additional District Judge, Chakwal, who, vide order dated 7-5-1999, allowed revision applications and set aside the order of trial Court.

4. Thereafter, writ petition was filed by the respondent No,1 and- it was accepted by High Court with the following observations:- "A perusal of the record reveals that sale took place on 28-12-1994 vide Mutation No,2235. Notice of Talb-i-Ishhad was issued to the vendee on 5-1-1995 a copy of which has been annexed with this writ petition. A perusal of this notice clearly shows that plaintiff/petitioner has stated therein that he came to know about this sale on 28-12-1994. This notice was drafted on 5-1-1995. It appears that while drafting the plaint the learned Advocate gave the date of knowledge as 5-1-1995 as the said date appeared in the end of that notice. Had the notice of Talb-i-Ishhad not been annexed with the plaint containing date of knowledge as 28-12-1994, it could be said that amendment had been allowed without any justification. This notice of Talb-i-Ishhad dated 5-1-1995 starts from the very fact that plaintiff/petitioner had come to know about this sale on 28-12-1994. Since the notice of Talb-i-Ishhad was drafted on 5-1-1995 so while drafting the plaint the said date has been mentioned therein. This being the factual position, the trial Court was justified in granting the said amendment vide order dated 6-11-1998. The revisional Court has not exercised the jurisdiction vested in it in accordance with law while passing impugned order dated 7-5-1999. Accordingly writ petition is accepted and order dated 7-5-1999 is set aside and order dated 6-11-1998 passed by the trial Court is hereby restored. Since the petition seeking amendment has been moved with a delay of 3 years and 6 months, so the cost of Rs,1,000 is enhanced Rs,10,000."

5. It is contended on behalf of petitioner that the impugned order of High Court is against the established judicial norms and once matter was decided by learned Additional District Judge, while exercising revisional jurisdiction it could not be reopened. Learned counsel also argued that since it was not shown that revisional order was without lawful authority and jurisdiction, High Court was not justified to reverse the findings of the revisional Court. In support of above contentions, reliance is placed upon cases reported as:--

(1) Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131, and

(2) Hassan Din v. Hatiz Abdus Salam PLD 1991 SC 65.

6. In case of Noor Muhammad, it was held that there was an increasing tendency to tile Constitutional petitions even when the Courts, whose orders were challenged, had the jurisdiction to pass those orders. Further, it was observed that so was done notwithstanding the fact that where the Court has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it without lawful authority and certainly not illegal.

7. In the case reported as Hassan Din, leave to appeal was granted to examine, whether the decision of this Court in above-referred Noor Muhammad case did not oust the jurisdiction of the High Court to interfere in Constitutional jurisdiction with an order passed by the District Judge under subsection (2) of section 115 of the Civil Procedure Code. It was held that the effect of the judgment delivered in Noor Muhammad case is not that a Constitutional petition is in no case permissible whatever the nature of the defect in the proceedings before District Judge be. Further, it was observed that a mere illegality committed with jurisdiction shall not be a ground for entertaining a Constitutional petition.

8. Adverting to the facts of the instant case, it is noted that amendment in pleading can be allowed at any stage, in such manner and on such terms, which may be equitable and just for the contesting parties. Of course for exercising jurisdiction, as above, a reasonable ground always has to be shown. It is not disputed that in the notice of Talb-i-Ishhad dated 5-1-1995, it was clearly stated that the petitioner had come to know about the sale on 28-12-1994. Ex facie it was typing/clerical mistake and was rightly allowed to be rectified by trial Court on payment of costs, which was further enhanced by High Court from Rs,1,000 (Rupees one thousand) to Rs,10,000 (Rupees ten thousands). Revisional Court by setting aside the order of trial Court had committed serious illegality of the nature, which could have the eftect f depriving the legitimate right of a party. Merely because revision was decided, it would not by itself be a bar for an aggrieved party to file writ for seeking complete justice in appropriate cases, which of course will depend upon the sole merits of each case.

9. Accordingly, leave to appeal is refused and the petition is dismissed.