1979 PLP 597 (CLC)

Muhammud Ashfaque for Non-Petitioners. Date of Institution : 17th May 1979. This is a revision petition against the order of Additional Sub-Judge, Muzaffarabad dated the 22nd of April 1979, whereby he has allowed the amendment application filed by the plaintiff. Brief facts resulting in this revision petition are that petitioner-plaintiff brought a pre-emption suit in the Court of Additional Sub-Judge, Muzafar abad on the 18th of February 1976 in respect of land measuring 13 kanals and 7 marlas which stood transferred to Ghulam Hayder, vendee for an ostensible consideration of Rs. 2,000 through a registered sale-deed dated the 27th of November 1975. The sale-deed was executed in respect of land comprising Survey Nos. 438, 439, 441 and

442. Out of Survey No. 439, the sale-deed was executed to the extent of 6 kanals and 17 marlas, but the plaintiff, in his suit of pre-emption, claimed 6 kanals and 12 marlas ; in the same manner, out of Survey No. 442, the sale took place to the tune of one kanal and 6 marlas while the right of pre-emption was exercised to the extent of 1 kanal and 2 marlas. Thus, the plaintiff omitted to sue to the extent of 9 kanals out of the land sold, according to the mathematical calculation, but inst(ad of deducting 9 marlas out of the total area of 13 kanals and 7 marlas, the plaintiff exercised right of preemption to the extent of 13 kanals and 2 marlas, as is evident from the plaint, thus, leaving behind only 5 marlas out of the land sold. The written statement in this case was filed on the 29th of July 1976, wherein it was specifically asserted that plaintiff's suit was suffering from the defect of partial pre-emption because he had not claimed whole of the land sold by way of pre-emption. It may be pointed out that when the written statement was filed, the plaintiff had four months for rectification of mistake in the pre-emption suit. But the plaintiff did not choose to amend the plaint. The application for amendment was filed on the 10th of August 1978, after more than 2 years of the filing of written statement. It is alleged in the application that omission in the plaint, with regard to the land sold, was due to inadvertence and the amendment could not be sought earlier on account of 'mala fides' of the clerk of the counsel for the plaintiff. The learned Sub Judge after hearing the parties, allowed the application for amendment. The learned counsel for the petitioner has argued that the petitioner was guilty of gross negligence because he did not seek amendment even after the written statement was filed wherein the omission by the plaintiff was speci fically mentioned. It has been further argued that amendment cannot be allowed because a valuable right has accrued to the plaintiff by the lapse of time. I have heard the learned counsel for the parties and have also gone through the record. It is correct that Courts are lenient, while allowing the amendment of pleadings, of course, subject to certain limitation. But an amendment application cannot be accepted if the amendment sought, intro duces a claim which is barred by the limitation, especially, in cases of additional of necessary parties and inclusion of item of the property, unless very exceptional circumstances exist. There is quite a number of authorities in support of the view that normally the amendment cannot be allowed if the claim sought to be introduced by way of amendment is time-barred. In P L D 1948 P C 73, it was held that the Court of appeal was justified in disallowing amendments because the claim under the agreement had become time-barred. In P L D 1956 B J 33, while deciding a revision petition against an order of allowing the amendment in a pre-emption case, his Lordship, Mr. Justice Shabeer Ahmed, J. has observed that omission of 'Baghecha' and house in pre-emption suit has not been proved to be due to inadvertence of the petition-writer because, the petition-writer was not examined to support the plea and only the word of the counsel for the plaintiff was relied upon. In this case, the question of limitation was not raised and was not considered. In A I R 1925 Cal. 67 a D. B. of Calcutta High Court has expressed the view that the discretion to allow the amendment of the plaint should not be exercised when the effect was to take away, from the defendant, 'a legal right which had accrued to him, by lapse of time. However, it was also observed that there might be cases where consideration of limitation was outweighed by the special circumstances. In this authority, reliance has been placed on a number of authorities and claim for surplus sale proceeds was held to be rightly disallowed by the subordinate Court. Coming to the instant case, we see that amendment sought for, is for the addition of a portion of the property after the lapse of the period of limitation. Such an amendment cannot be allowed after the period of limitation until and unless exceptional special circumstances are shown to have existed resulting in the omission to include the property within the period of limitation.) Bar of limitation can be condoned only under exceptional circumstances. No such circumstances have been shown to have existed in the instant case. The plaintiff failed to amend the plaint within time of limitation, even after filing of the written statement by the opposite-party. The petitioner has been sleeping over the matter for more than 2 years after the filing of the written) statement. It is clearly pleaded in the written statement that plaintiff had failed to sue for' whole of the property sold. The plea of the petitioner, that defect was not brought into his notice due to connivance of the clerk of his counsel is not tenable because it is the counsel for the party who has to plead and safeguard the interests of his client and not the clerk of the counsel. The knowledge of the counsel is presumed to be the knowledge of the client. There is no affidavit by the counsel for the plaintiff-petitioner to the effect that he did not become aware of the defect in the plaint, even after the filing C of the written statement by the opposite-party. Thus, the petitioner has failed to make out a special case outweighing the consideration of the point o limitation involved in the case. In the light of what has been stated above, the order under revision is set aside and the trial Court is directed to proceed with the case as originally framed. Revision allowed.