1986 PLP 1575 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑This appeal by Muhammad Anwar and three others, defendants, arises out of the judgment of a learned Single Judge of the Lahore High Court, dated 23‑6‑1979, whereby the revision filed by Allah Bakhsh and another, plaintiffs, against the order of the learned Senior Civil Judge, Rahimyar Khan, dated 13‑7‑1978, was accepted and the respondents were allowed to amend their plaint so as to include an additional ground in support of their claim for preferential right to acquire the suit land.

2. Land measuring 360 Kanals situate in Mauza Karamabad, Tehsil Rahimyar Khan was sold at the hands of the appellants for an ostensible price of Rs.1,44,000 through a registered sale‑deed, dated 22‑10‑1976. The sale was pre‑empted by the respondents on the ground that they were co‑sharers in the Khata. This assertion was refuted by the appellants, as a result of which the respondents on 26‑2‑1978 moved an application under Order VI, Rule 17, C.P.C. praying for amendment in the plaint in order to take an additional ground of their being co‑sharers in the estate as well. This application was resisted by the appellants on the ground that the amendment sought for was barred by time. The learned Senior Civil Judge after considering the pros and cons of the stand taken by the parties rejected the application of the respondents vide his order, dated 13‑7‑1978. This was challenged by the respondents in the High Court through a revision petition which has resulted in the impugned order.

3. Leave has been granted to consider whether in a suit for pre‑emption a pre‑emptor can be allowed to add a new ground in his plaint after the expiry of period of limitation.

6. The learned counsel for the parties heard and the record perused. It was contended by the learned counsel for the appellants that obviously the amendment sought for in the plaint was beyond. the period of limitation and the same was rightly rejected by the learned trial Court in exercise of its discretionary power, therefore, the High Court has acted illegally in reversing the order of the trial Court. Thus the order under appeal is required to be set aside. Reliance in this respect was placed on Shah Muhammad v. Hayat P L D 1960 (W.P.) Lah. 975, Asad Ali Alvi v. Nazir P L D 1982 Lah. 358 and Jahangir Ali v. Fazalur Rehman 1984 C L C 3379.

5. As the case stands, we are inclined to agree with the findings arrived at by the High Court in that the law does not place any restriction, including that of limitation on a pre‑emptor to add a new ground to high right of pre‑emption in the plaint by way of amendment after the expiry of the period of limitation unless, of course, the new ground changes the very character of the suit. In the instant case admittedly, the amendment sought for in no way changes the character of the suit. The provision of Order VI, Rule 17, C.P.C. which pertains to the amendment of the pleadings has been thoroughly examined by this Court in its latest judgment in the case of Mst. Ghulam Bibi and others v. Sarsar Khan and others reported in P L D 1985 S C wherein it has been held: "Be that as it may, the learned Judge himself observed rightly, so that the delay‑ alone in applying for the amendment cannot be a determining factor for deciding an application under fig'' Order VI, Rule 17, C.P.C. The use of the expression at stage of the proceeding' in rule 17 is not without significance. The word 'proceedings' has been interpreted by this Court in a liberal manner so as to give a proper scope to the rule in accord with its purpose as including the appellate stage and that too upto the Supreme Court. The foregoing interpretation is also in accord with the mandatory language used in rule 17 to the effect that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy. Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment. What has been stated above, is however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been firstly, the change in the heading signifying the suit being for specific performance etc. Instead of declaration etc. and secondly, there was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents‑defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualizes is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualizes the award of adequate compensation; in that, the amendment has to be allowed in such manner and on such terms as may be just. In the light of the foregoing discussion if the cause of action does not change the main substance of the suit and nature of the suit would not change and if that does not change the question of limitation would then remain only of form and not of substance. That is why this Court has so far followed the liberal rule in interpreting Order VI, Rule 17 so as to permit amendment if otherwise necessary notwithstanding the possibility that on account of some formal change, the question of limitation might have acquired pronounced importance, had it not been a case of amendment under Order VI, Rule

17. Other principles governing the question of amendment in pleadings have adequately been determined and examined in the precedent law and no more discussion is necessary in so far as the question of law and principle is concerned."

6. In view of the above, we do not find any merit in this appeal and the same is dismissed with no order as to costs. M.Y.H. Petition dismissed.