1986 PLP 1217 (CLC)

‑‑‑S. 151 & O. VI, r. 17‑‑Discretionary jurisdiction‑‑Amendment of plaint‑‑Share of Shamilat omitted from claim of pre‑emption allowed to be added in amendment‑‑Effect‑‑Amendment which would not change or totally alter character of action, held, would be readily granted by Courts‑‑Rules/procedure were to be in aid to proper administration of justice‑‑Delay per se would be no ground to refuse amendment of plaint‑‑Provisions of Code would not be allowed to work as trap for unwary litigants‑‑Powers to allow amendment are fairly wide and could be liberally and fairly exercised. Jasmir Singh v. Rehmatulla and others 7 Punjab Record 1896; Jalal Din and others v. Qaim Din and others 62 Punjab Record 1914 rel. (c) Civil Procedure Code (V of 1908)‑ ‑‑‑S. 115‑‑Revisional jurisdiction, exercise of‑‑Exercise of discretion by trial Court not regulated by proper and relevant considerations, held, would be capable of correction by revisional Court. (d) Constitution of Pakistan (1973)‑ ‑‑‑Art. 199‑‑Civil Procedure Code (V of 1908), S. 115 & O. VI, r.17‑ Constitutional jurisdiction‑‑Amendment of plaint allowed by revisional Court‑‑Pre‑emption right being creation of statute, held, could not be differently treated from other rights by Courts‑‑Order of Revisional Court allowing amendment in plaint to include omitted claim of Shamilat could neither be described to be without jurisdiction, nor without lawful authority, to attract constitutional jurisdiction of High Court. Ch. Mushtaq Ahmad Khan for Petitioners. Ch. Muhammad Afzal Basra for Respondents. Date of hearing: 17th February, 1986. Sole question of law involved which arises in this revision petition is whether leave to amend plaint so as to include "share of Shamilat" was correctly allowed by learned Additional District Judge, Sialkot. Matter arose thus respondents 1 and 2 namely Muhammad Salim and Barkat Ali, commenced action on 22‑2‑1974, for pre‑emption of suit property which was purchased by petitioners on 22‑2‑1973 for a sum of Rs.30,

000. Pre‑emption was claimed on the grounds of being collaterals, co‑sharers and owners of the estate. Since property was sold with share of Shamilat which was not included in the claim, defendants submitted an application and brought this defect to the notice of the Court. In the written statement submitted, defendants also objected to the maintainability of the pre‑emption suit on the ground of partial pre‑emption. It is stated that on 15‑7‑1974, when plaint was' amended to implead a rival pre‑emptor, plaintiffs without proper leave of the Court, included share of Shamilat in the plaint. Defendants objected to this unauthorised amendment which was accordingly deleted on 21‑12‑1975. On 30‑7‑1976, plaintiffs put in an application under Order VI, rule 17 of Civil Procedure Code seeking permission for amendment of the plaint to include share of Shamilat which was inadvertently omitted by them in their original claim. Court entertained the application, called for its reply from the opposite side, heard the parties and dismissed petition on 24‑3‑1977. Plaintiffs successfully invoked revisional jurisdiction and succeeded to have the permission of the Court vide order, dated 17‑1‑1978 of learned Additional District Judge, Sialkot. Revisional order allowing amendment is in question in constitutional jurisdiction, at the instance .of the vendees of the suit property. Facts are not in dispute. This petition raises two legal points; (1) whether granting leave to amend pleadings was a "case decided" and revision could be competently filed; (2) in case it constituted a "case decided" whether revisional Court was justified in interfering with a discretionary order and allowing amendment in the plaint of the pre‑emption suit. As regards the first point, Mr. Mushtaq Ahmed, Advocate, scrupulously conceded that in view of later pronouncements of the Supreme Court of Pakistan, order of the trial Court did amount to a "case decided". Apart from the aforenoted candid and fair concession, it is well‑settled that "an order which either allows amendment or refuses amendment in pleadings after juridically considering the facts does amount to a "case decided". This point, therefore, is concluded against the petitioners. Now remains the question for consideration about the propriety of allowing amendment in the pleadings. It is not in dispute that principal land was sold with share of Shamilat. It is also not in dispute that plaint included principal land but omitted reference to Shamilat which was also conveyed with it. It is correct that defect in the plaint as to omission of share of Shamilat was brought to the notice of the Court by the defendants ‑vendees. It cannot be gainsaid that plaintiffs did not take prompt notice of their omission and applied for amendment immediately. However, when the unauthorised amendment made in their claim, was ordered to be deleted by the trial Court, they came forward with an application for amendment in the plaint and sought permission of the Court to include share of Shamilat. Trial Court considered the matter but did not find it a fit case for amendment. As observed above, revisional Court has found in favour of the pre‑emptors and allowed them opportunity to make necessary amendments in the plaint. Short question, therefore, which arises for decision in this petition in constitutional jurisdiction is, whether in the circumstances narrated above, action of the revisional Court was open to exception and could be described to be either without jurisdiction or without lawful authority. It is correct that the original Court passed order in its discretionary jurisdiction. But it cannot be said that discretion was regulated by proper and relevant considerations which should weigh with the Court in allowing or refusing amendment of pleadings. Liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court and Supreme Court of Pakistan. It is well‑settled that amendments which do not change or totally alter the character of the action are readily granted by Courts, for all rules or procedure are nothing but aids to proper administration of justice. Mere fact that plaintiffs did not take prompt action when defect in their plaint was brought to the notice of the Court, was hardly a ground to refuse amendment which otherwise was necessary for proper decision of the pre‑emption suit. I must confess with respects that I am unable to endorse the view taken by the original Court. Lately, Supreme Court of Pakistan in Mst. Ghulam Bibi and others v. Sarsa Khan and others P L D 1985 S C 345 if I may be permitted to say with immense respects, in a very illuminating and exhaustive judgment have laid down guiding principles which should regulate the exercise of discretion by Courts under OPrder VI, rule 17 of the Civil Procedure Code. Delay per se was no ground to refuse amendment. It is not the case of the petitioners that by proposed addition, nature or character of the claim as originally setforth in the plaint was in any manner altered or underwent a change. Provisions of the Code, in my opinion, cannot be allowed to work as a trap for unwary litigants. Powers to allow amendments given by Code are fairly wide and should be liberally and freely exercised. In result of my own search, I have succeeded to lay my hands on two decisions of the Punjab Chief Court where in somewhat similar and identical circumstances, pleading was allowed to be amended and share of Shamilat originally left out was allowed to be included. In Jasmir Singh v. Rehmatulla and others 7 Punjab Record 1896, learned Judges of the Chief Court spoke thus; "The dismissal of the suits would only have been justifiable if the plaints had expressly shown, or plaintiff's agent had expressly stated, that a share in the Shamilat was purposely excluded from the suits. There was no doubt that plaintiff sued for the whole of the properties covered by the deeds of sale, and if the plaints were not sufficiently clear on the subject, the statement of plaintiff's agent clearly showed that it was the intention to sue for the Shamilat as well as the principal land, so that defendant was under no misconception in the matter. If the Divisional Judge thought the plaints defective, the proper course was to have ordered their amendment, but we do not think any amendment was necessary. None of the faults enumerated in section 53(b) of the Civil Procedure Code could be found with the plaints, and, therefore, they could not have been returned for amendment. Amendment only could have been made under clause (c), and this was practically done by the Courts ascertaining from plaintiff's agent that the Shamilat also was claimed. Defendant certainly suffered no prejudice by no formal addition being made to the plaint in this respect." In Jalal Din and others v. Qaim Din and others 62 Punjab Record 1914" a share of Shamilat" omitted from the claim was allowed to be added in amendment. Facts of the instant case and those in the aforenoted precedents are almost identical. In my opinion, exercise of discretion by the original Court which was not regulated by proper and relevant considerations was capable of correction by the revisional Court. Therefore, I do not think that the revisional Court exceeded its jurisdiction or committed any error of law when it allowed amendment in the plaint. Nature of the claim did not present much difficulty. Pre‑emption right was a creation of statute and could not be differently treated from other rights, by the Courts. In the result of what has gone before, order of revisional Court can neither be described to be without jurisdiction nor without lawful authority. In these circumstances, no interference can be made with the order which proceeds on correct appreciation of facts as also the legal principles. I, accordingly would uphold the impugned decision and dismiss the petition, but with no order as to costs. A.A. Petition dismissed.