P (PLP)

The case followed its normal course, When on 6th March, 1948, the defendant Haji Faiz Muhammad Khan put forth an application drawing once more the attention of the learned trial Judge to his plea of partial pre‑emption, and praying that a definite issue might be framed in respect of it. The learned judge rejected the application on that very day, on the grounds that in the registered sale deed the land had been described by means of giving boundaries, and it was on the strength of those very boundaries that a mutation had been attested, and consequently no further issue was necessary. On 23rd March, 1948, the learned trial judge awarded the Plaintiff a decree for possession of the land in dispute on payment of Rs. 2,182 (Rs. 2,000 purchase‑money plus Rs. 182 compensation for improvement). In regard to the question of partial pre‑emption, the learned trial Court remarked that after the close of the evidence, counsel for the vendee applied that the suit was for partial pre‑emption, and that an issue might be framed to that effect. His application, the learned Judge proceeded to say in the judgment, was rejected as it had been given at a very late stage. Besides, added the learned judge, the suit was evidently not for partial pre‑emption. Then followed what may be called a brief reproduction of the grounds already recorded by the learned judge on 6th March, 1948. The defendant‑vendee challenged the correctness of the judgment of the learned trial judge by preferring an appeal in the District Court Peshawar, which was disposed of by K. S. Mirza Fazal Rahman Khan Additional Judge. The main point with which the learned lower appellate Court had to deal was whether the suit was fatally affected by the doctrine of partial pre-emption and as such ought to have been dismissed. The learned Additional judge did not see eye to eye with the learned trial judge that the application fop framing additional issue, on the subject of partial pre‑emption was a belated one, because the point had already been specifically raised in the written statement. He, however, took into consideration an application presented to him by the counsel for the plaintiff‑respondent praying that the words " twenty‑four marlas " should be added in the heading of the plaint in order to remove the ambiguity. The learned Additional judge was influenced by the argument advanced on behalf of the plaintiff‑respondent that the omission to state in so many words the area of the land as being 24 marlas in the plaint was not an intentional one, The extract of the Jamabandi, filed with the plaint, was also referred to by the learned lower appellate Court. While the extract itself did not throw light on the area, which was the subject‑matter of the sale, a note inserted by the patwari in the remarks column showed the land in question amounted to 3/8th share of the two field numbers, and measured 19 marlas. The patwari said further in the note that this piece of land had been attested per mutation No 3558 in favour of Haji Faiz Mohd Khan on 6th June, 1947. The learned lower appellate Court considered the patwari's note in remarks column of the extract of the jamabandi as quite sufficient to have mislead the plaintiff‑respondent, who otherwise could have never meant to enforce his right against any area less than that contained in tile sale deed. Relying upon 6? P. R. lC114, and A.I.R. 1921 (I'. C.J Page 50, the learned additional Judge felt quite justified in allowing the amendment prayed for on the ground that the omission, which was said to vitiate the plaint, was due only to inadvertence, and amounted to nothing more than an accidental slip. He allowed the area claimed to be shown in the plaint as 24 marlas, enclosed by the boundaries given in the sale deed. As according to him the amendment was a formal one, the defendant appellant could not be slid to have been taken by surprise, and de novo proceeding were, therefore not necessary. He further directed the decree to be also amended so as to conform to the amendment allowed by him in the plaint. He concluded his judgment by saying that Except for this minor modification the appeal is dismiss ed." It is this order of the learned Additional judge which forms the subject‑matter of the further appeal preferred in this .Court by the defendant‑vendee. The learned counsel for the plaintiff‑respondent raised a preliminary objection against the competency of further appeal on the ground that the property in question was no longer agricultural land, and the suit was, thus, nothing more than an unclassed one, the value of the suit for purposes of jurisdiction being Rs. 2000 and the two courts below having concurred in the decision, no further appeal could lie. To substantiate the point that the property in question was no longer agricultural land, the learned counsel could only point to the use to which it had been put after the sale. He said that it had been built upon and a sum of Rs. 182 had actually been allowed as compensation for structure alleged to have been put up by the defendant‑appellant. He, however, lost sight of the fact that at the time of the sale at least, the land had not been built upon, and that in the plaint itself it was shown to be agricultural land comprised in two field numbers. Any way, the judgment of the learned lower appellate Court did vary the decree of the learned trial judge otherwise than as to costs. Even if the suit be considered to be an unclassed one, a further appeal was competent under section 31, sub‑section (1) (b) (i) of the North‑West Frontier Province Courts Regulation, 1931. I, therefore, overrule the preliminary objection. It was contended by the learned counsel for the defendant‑appellant that the learned trial Court had failed to perform its clear duty to incorporate into issues every material fact in regard to which the parties were at variance. According to the learned counsel the plea of partial pre‑emption was very important and in fact went to the very root of the matter, but in spite of the attention of the learned trial Judge being drawn to it, not only in the pleadings bus also by way of a separate application, it failed to act in accordance with law. As far as the judgment of the learned lower appellate Court went, it was argued on behalf of the defendant‑appellant that what if considered a formal thing was in fact something very substantial and fatal to the compe tency of the suit. It was further stressed that the authorities relied upon by the learned Additional judge had no application whatsoever in the present case. On behalf of the plaintiff respondent reliance was placed upon sections 151 and 152 C. P. C. The learned counsel expressed the view that amendment in the plaint as well as the decree effected by the learned lower appellate Court amounted to nothing more than the correction of a clerical error, which was due to an accidental slip. In the alternative be cited O. 41 R. 33 C. P. C. and said that the learned lower appellate Court could pass any decree, which it thought fit in the circumstances. I have given a very anxious thought to the arguments put forth before me at the Bar. To me it appears that the learned trial Judge signally failed in acting upon the provision of law as contained in O. XIV R. 1 C. P. C., which makes it incumbent upon the trial Judge to frame issues upon all the material propositions of fact and law in regard to which the parties are in disagreement. The assertion in the written statement that the suit had been brought only for part of the property sold was a very material proposition, and should at the very first hearing have been recorded in the form of an issue. By rejecting the application of the defendant‑appellant, dated 6th March, 1948, the learned trial Court in a way prejudged the case before it had been concluded. The remark in the final judgment that the application was a belated one, was simply incorrect, as has been held even by the learned lower appellate Court. Before the learned lower appellate Court no doubt an application for amendment was put in, but that too did not clearly state the facts and aimed at altering the heading of the plaint, and prayed for nothing more. The learned Additional Judge did not take into consideration the attitude of the plaintiff‑respondent in the trial Court and had he done so perhaps he would have thought twice before proceeding to allow the amendment of the plaint, and directing corresponding amendment in the decree of the learned trial Judge. The law quoted by the lower appellate Judge does not justify the action taken by him in the peculiar circumstances of the present case. Taking first the Punjab ruling reported as 62 P. R. 1914. I find that the plaintiff in that case, had actually cut an application in the trial Court for leave to amend the plaint, which was allowed, and the plaint actually amended. The learned Divisional judge upheld that order, which too was affirmed on further appeal by the Chief Court; In the present case the conduct of the plaintiff-respondent stands in glaring contrast with the timely action taken by the plaintiff in the case, with which the Chief Court had to deal. Adverting to the Privy Council ruling reported as A.I.R. 1921 (P. C.) page 50, one finds that that too cannot support the view of the matter taken by the learned Additional Judge. There in the court of the Subordinate judge leave for amendment had not been sought, but refused. In the Divisional Court also the refusal was not disturbed. On the matter coming up before the learned Judicial Commissioner, N.-W.F. Province, the contention of the then plaintiffs prevailed and it having been held that the amendment did not introduce a new cause of action, the learned judicial Commissioner allowed it by his order, dated 12th December, 1915, and instead of himself proceeding to dispose of the case, finally remanded in to the original Court for decision on merits. The plaints were accordingly amended, and judgment was given by the learned trial Court on 10th July, 1916. The case once more came up before the learned Judicial Commissioner, and as he effected certain variations in the decrees, the matter went up to the judicial Committee of the Privy Council, where the intermediary order of the judicial Commissioner allowing amendments was called into question. It was then that their Lordships of the Privy Council made the remarks, on which the learned lower appellate Court in the present case has taken its stand. It was a typical case, which is on the face of it quite distinct from the present one, and even there the learned judicial commissioner had only upset the orders of the Courts below refusing the amendments. Amendment of pleadings is no doubt in the discretion of the Court, but that discretion has to be so exercised as not to prejudice the interest of any of the patties to the case. The question in this shape came up before their Lordships of L t, Privy Council, and they dealt with it exhaustively in a case reported as A.I.R. 1943 (P. C.) page

34. An action was tried by the Calcutta High Court on the original side, and at the end of the trial Mr. P. C. Ghose, learned counsel for the plaintiff advanced a contention, which in a way introduced an amendment in the original plaint. The learned judge accepted the contention and gave the plaintiff, a decree without requiring him to make an actual amendment of his pleadings or putting him on any terms and without considering whether the defendants should have an opportunity to amend their written statement in the light of the new development. Their Lordships, adversely commenting upon the action of the Judge of the Calcutta High Court, said that in such a case the Court should insist on a proper application for leave to amend, and make a formal order thereon duly safeguarding the right of the defendants and ensuring that the basis in fact of the new case made is set forth with particularity and exactness by the plaintiff. In the result the Judicial Committee reversed the decision of the Calcutta High Court and dismissed the suit. The legal position is, thus, crystal clear, and to me the action of the learned lower appellate Court appears to be without any justification whatsoever. The most which it could do was to remand the case to the trial Court, His remark, that but for the modification allowed by him the appeal was dismissed, would show that as a matter of fact the appeal bad been accepted by him to a certain extent, which was not in reality the case, because the defendant‑appellant was not allowed any relief whatsoever. Both the learned Courts below have evidently missed the real point involved in the case, and that related to partial pre‑emption. It would best serve the interests of justice, if a further issue is framed the point, and the learned original Court given a chance to adjudicate on the point of partial pre‑emption. I, therefore, accept the appeal, and, setting aside the judgments and decrees of the learned Courts below, remand the case to the learn ed trial judge under section 151 C. P. C. with the direction that an issue on the question of partial pre‑emption be framed and the whole case tried de novo. The defendant‑appellant shall have his costs in this Court, while the rest of the costs will abide the result. K.M.A. Case remanded