2000 PLP 616 (MLD)

‑‑‑‑O.Vl, R,17 & S.100‑‑‑Second appeal‑‑‑Application for amendment of plain ‑‑‑Prayer for amendment of plaint made by the appellant at the time of second appeal‑‑‑Such application having been made too late, amendment was not allowed. Fazal Ellahi v. District Judge, Attock 1993 CLC 85 ref. Khan Khizar Abbas Khan for Appellants. Shahid Waheed for Respondent. Date of hearing: 29th September, 1999. The respondent purchased the suit land vide a decree passed by the Supreme Court of Pakistan on 10‑4‑1990 for a consideration of Rs.88,

000. On 1‑9‑1990 the appellants filed the present suit for possession of the said suit land by pre‑emption. The suit was resisted by the respondent by filing a written statement. Subsequently they filed an application averring that there is no statement in the plaint as to Zarar and Zarurat. The appellants filed a reply which is rather brief. The learned trial Court allowed the application and dismissed the suit vide order, dated 11‑4‑1993. An appeal filed by the appellants was heard by a learned Additional District Judge, Mandi Bahauddin who dismissed the same vide judgment and decree, dated 8‑2‑1999.

2. Khan Khizar Abbas Khan, learned counsel for the appellants has repeated the same arguments as were addressed by him during the limine hearing i.e. the provision making it mandatory to assert Zarar and Zarurat has since been declared to be against the Injunctions of Islam in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1). Mr. Shahid Waheed, learned, counsel for the respondent, on the other hand, supports the impugned judgments and decrees.

3. As stated above, the suit was filed on 1‑9‑1990 i.e. after 28‑3‑1990 when the First Punjab Ordinance was promulgated in pursuance of the judgment in Said Kamal's case (PLD 1986 SC 260). It is an admitted position that the plaint is silent as to Zarar and Zarurat. The afore‑referred judgment in Rana Muhammad Shabbir Ahmad Khan's case was to take effect from 31‑12‑1993 in accordance with the provisions of Article 203‑D(2) read with Article 203‑F(2) of the Constitution. It does not have retrospective effect. The appellants were, therefore, bound by law to plead that they are in need of the land and that they will suffer damage in case the land is not transferred to them. Learned counsel for the respondents has cited the case of Mst. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lahore 200) (also relied upon by the learned Additional District Judge) to contend that the suit having been filed after 28‑3‑1990, the petitioners were bound by law to plead Zarar and Zarurat and as they have failed to do so the E suit has rightly been dismissed, The said judgment fully supports the arguments of the learned counsel.

4. Learned counsel for the appellants then argued with reference to C.M. 1st of 1999 that he be allowed to amend that plaint so as to make the said averments in the plaint. This prayer is opposed by the learned counsel for the respondent who relied on the case of Fazal Ellahi v. District Judge, Attock (1993 CLC 85).1 find that the appellants are making the prayer too late in the day and besides the said case of Fazal Ellahi relied upon by the learned counsel for the respondent does not lay down that such a prayer cannot be allowed. The C.M. is accordingly dismissed.

5. In view of the above discussion this R.S.A. is without any force and is accordingly dismissed with costs. Q.M.H./M.A.K./S‑441/L ??????? Appeal dismissed.