2017 PLP 29 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners/successors of plaintiff have challenged the judgment and decree dated 24.10.2001 passed by the learned District Judge, Lodhran, whereby the appeal filed by them was dismissed, and the judgment and decree dated 18.12.2000 passed by the learned Civil Judge 1st Class, Dunyapur District Lodhran, whereby the suit for pre-emption filed by the petitioners/plaintiffs was dismissed.

2. Brifly, the facts as leading to this civil revision are that the plaintiff/predecessor of petitioners on 25.10.1969 filed a suit to pre-empt the sale of land through registered sale deed No.589 attested on 02.12.1968 on-the basis that he is collateral of the vendor, co-sharer in khata and khewat-dar. Para 3 of the plaint is reproduced as under:- The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. The plaintiff produced copy of RL-II and closed his affirmative evidence on 13.01.1971. On the same day i.e. 13.01.1971 learned counsel for the defendants-vendees made the statement that he admits issue No.2, which was, whether suit land is pre-emptable and did not produce any evidence. It was ordered that the other issues will be decided with the main suit. On next date i.e. 04.02.1971 issues Nos.4 to 9 were framed. Another issue No.8-A was framed on 27.03.1971 when an application for amendment of written statement filed by defendants was accepted and with regard to cost of improvement issue No.8-A was also framed. The record shows that on 05.06.1971 counsel for the plaintiff in his statement produced copy of pedigree table as Ex.P-1 and closed the right of plaintiff to produce the affirmative evidence except the statement of plaintiff. The evidence of defendants, including one of the defendants i.e. DW-1 to DW-4 was recorded on 23.02.1978 and plaintiffs statement was recorded as PW-1 in rebuttal on 11.03.1978. Learned trial Court vide judgment and decree dated 24.06.1978 decreed the suit holding that the plaintiff is collateral of the vendor. The vendees-defendants preferred an appeal, which was accepted, by the learned Additional District Judge, Multan vide judgment and decree dated 06.11.1979. In his findings learned Additional District Judge recorded that the plaintiff has not produced any witness to corroborate his version that he and Kaura vendor had the same paternal father. It was also noted that with regard to other rights claimed by the plaintiff no evidence was produced and the learned trial Court has recorded the findings in favour of plaintiff on issue No.5 only on the ground of collateral-ship. The judgment and decree of learned Additional District Judge were further challenged through R.S.A. No.993 of 1979 before this Court and this Court was pleased to accept the appeal vide judgment/remand order dated 13.11.1988 and remanded the matter to the learned trial Court with a direction to learned trial Court to allow the parties to lead evidence on all the issues and re-decide and determine the same. After remand Muhammad Hanif was produced as PW-2 on 25.07.1989 and plaintiff himself appeared as PW-3 on 03.10.1989. The defendants produced Muhammad Khan as DW-1, Allah Yar as DW-2, Muhammad Shah as DW-3, Allah Wasaya as DW-4 on 08.01.1991 and Haji Muhammad as DW-5 on 07.03.1991. During this period Sohney Khan plaintiff passed away. The defendants filed an application for rejection of plaint. The plaint was "rejected vide judgment dated 22.10.1992. An appeal was preferred, which was accepted by the learned Additional District Judge, Lodhran vide judgment dated 01.06.1994 and matter was remanded to the learned trial Court for decision afresh in accordance with law. The remand order was assailed through FAO No.33 of 1994 before this Court, which was dismissed vide judgment dated 11.04.2000. Against whereof CPLA No.776 of 2000 was preferred before the august Supreme Court of Pakistan, which was also dismissed vide judgment dated 12.07.2001. Thereafter vide judgment and decree dated 18.12.2000 suit of the plaintiff was dismissed by the learned trial Court and the appeal filed against the dismissal of suit also met with the same fate vide judgment and decree dated 24.10.2001 passed by the learned District Judge, Lodhran. Hence, this civil revision.

3. Along with the Civil Revision an application (CM-1 of 2001) has been filed, which is under Order VI, Rule 17 of the C.P.C. with the prayer that the applicants/ petitioners be allowed to mention in Para 3 of the plaint as "Mouza Shareek" instead of "khewat-dar".

4. Learned counsel for the petitioners argues that when Patwari has not been produced and plaintiff appeared in rebuttal evidence, therefore, he honestly feels that the superior right on the basis of collateral cannot be proved and as such he does not press the same and main thrust of the petitioners/successors of original plaintiff is on they ground of Mouza Shareek, therefore, an application for permission to amend the plaint has been filed. Prays for acceptance of the application and for permission to amend the plaint and stated that the plaintiff was Mouza Shareek, therefore, on the ground of Mouza Shareek the suit should be decreed.

5. On the other hand, learned counsel for the respondents-defendants has vehemently opposed the arguments advanced by the learned counsel for the petitioners. Argues that at this stage the prayer of amendment cannot be granted and further that for the last 47 years due to the plaintiff/petitioners matter is under litigation and the respondents-vendees have been dragged in this long protracted litigation. There is no fault of the defendants. Further argues that actually in the original plaint sale deed No.599 was pre-empted, subsequently without permission of the Court by unauthorized cutting, rather forging the Court record it was changed as 589 the actual sale deed. Prays for dismissal of the civil revision.

6. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

7. Learned counsel for the petitioners admitting that the rights pleaded in the plaint could not be proved by the petitioners/successors of plaintiff, therefore, an application has been moved that the petitioners be permitted to assert the right on the basis of "Mouza Shareek" instead of "khewat-dar". As the parties are in litigation and petitioners' predecessor filed the suit to pre-empt the sale in favour of respondents-vendees dated 02.12.1968 by filing a suit on 20.10.1969 and first time on 03.12.2001 has filed an application for amendment of plaint i.e. after 32 years of the filing of suit of pre-emption, which right is termed as feeble and predatory also in accordance with the judgments of august Supreme Court reported as "PLD 1981 Supreme Court 347 (Fateh Muhammad v. Rajan Khan and another) and PLD 1984 Supreme Court 403 (Naseer Ahmad v. Arshad Ahmad)" and that after filing of amendment application 14 years more have passed when the matter is pending before this Court. In ordinary cases no doubt it is the grace of Court to allow the amendment of pleadings at any stage, even at the stage of august Supreme Court of Pakistan the amendment is allowed by the august Supreme Court. In chequered history of this case when a suit has been filed on the basis of grounds mentioned in the plaint to be superior right of pre-emption by the plaintiff and now stating that on the ground mentioned in the plaint the plaintiff could not adduce evidence to prove the same and even the learned counsel has stated that on the basis of ground of superior right of pre-emption already mentioned in the plaint he does not press the same and main thrust is now upon the amendment of plaint. In my view, in the circumstances of chequered history of this case which shows the miseries of vendees-defendants that they have faced more miseries without any fault on their part, as they are just defending the suit, the amendment cannot be granted when the equity is not in favour of the petitioners. Even otherwise in my view, even if the prayer of amendment is allowed, it will not help the petitioners-successors of plaintiff, as the suit has been filed under Punjab Pre-emption Act, 1913 and a decree if not passed before 31.07.1986, the suit cannot proceed. Reliance is placed upon the judgment of august Supreme Court of Pakistan reported as "PLD 1986 Supreme Court 360 (Government of N.W.F.P Through Secretary, Law Department v. Malik Said Kamal Shah)". I am of the view that previous decree, which was first time passed on 24.06.1978 on the basis, plaintiff being vendor's collateral, now the petitioners are admitting that they cannot succeed on that ground pleaded in the plaint of superior right of pre-emption and as learned counsel stated that he does not press the ground of superior right already pleaded in the plaint. In these circumstances in my view, when no decree has been passed or even claimed before 31.07.1986 on the basis of Mouza Shareek, now on the basis of this new ground no decree can be passed, as it is the view of this Court that if a partial decree is passed in a pre-emption suit before 31.07.1986, the Court has no power to fully decree that suit. This view taken by this Court has been reported in the judgment reported as "PLD 1988 Lah. 691 (Muhammad Ismail Khan and others v. Ghulam Haider and others)". On this analogy I am of the considered view that when on the basis of Mouza Shareek no right was claimed before 31.07.1986, after that admitting that on the basis of superior right of pre-emption claimed in the suit no decree can be passed and claiming new right through amendment in the plaint, no decree after 31.07.1986 can be passed in a pre-emption suit, which was filed in the year 1969, on the basis of a new superior right which is being claimed now, therefore, the grant or refusal of amendment is meaningless. When it is the position, therefore, no need to further discuss the arguments advanced by the learned counsel for the parties and other merits of case.

8. I further note that when a ground of superior right of pre-emption was not claimed in the suit, grant of a decree on that basis was not sustainable under the law as held in "1984 CLC 2718 (Ghulam Muhammad and others v. Muhammad Sharif and others)". Further while relying upon "PLD 1986 SC 1 (Muhammad Iqbal v. Raja Muhammad Asghar and others)" I am fortified by the view that when superior right as claimed now was never pleaded in the suit, needless to state that a party cannot be allowed to lead evidence on the point which has not been pleaded and if evidence is on the file on a point which is not pleaded, same cannot be looked into. If permission to amend the plaint is allowed, the parties will come to the point at zero level i.e. on the position when the suit was filed in the year 1969 and a new trial will start, which in my humble view is not permissible at this stage. I am also of the view that a new ground of pre -emption cannot be added after the period of limitation. In this context, reliance can be placed upon "1984 CLC 3379 (Jahangir Ali and 5 others v. Fazal-ur-Rehman and 2 others)".

9. In the light of what has been discussed above, application for amendment of plaint, C.M. No.1 of 2001, is dismissed and the revision petition also fails and the same is hereby dismissed. RR/S-127/L Revision dismissed.