P L D 2001 Lahore 16 (PLP)

"The plaintiffs had filed the suit against two minors, namely. Muhammad Hayat and his brother Qamar Abbas through their mother Mst. Jallan as their guardian ad litem. Whereas it was said that the names of the vendees were Umar Hayat and Qamar Abbas. An objection was taken that there was no vendee with the name of Muhammad Hayat. Therefore, when an application was moved for correction it was thought to be time-barred and under these circumstances as the property of Qamar Abbas, the co-vendee, was not divisible this was held to be a suit for partial pre-emption."

6. After going through the sale-deed, Exh.P-1, which vas appended with the plaint, the learned District Judge was of the view that the name of the co-vendee Umar Hayat has been mentioned as Muhammad Hayat on account of a bona fide mistake and this was a mere clerical error regarding the misdescription of the party and purable without any inhibition of limitation.

7. Learned counsel for the appellants has stated that because pre -emption was a piratical right and as an objection had been taken at the time of the genesis of the case, -n application having been moved beyond the period of limitation for correction purposes a valuable right had accrued to the vendees.

8. In this connection he has referred to a decision given in C.R.No.1269 of 1983 by Mr. Justice Akhtar Hassan, who had rejected a revision petition against refusal by the Courts below to allow correction of a name mis-described in the plaint after two and half months. This order has been seen as the file of the previous case has been appended with this case. In that case as the discretion had been exercised by the Courts below disallowing the correction the Hon'ble Judge of this Court declined to interfere on the grounds which are elucidated in the order itself.

9. Whereas the case here is different. Here a discretion has been exercised in favour of the pre-emptors and it has to be seen whether it calls for interference by this Court on the ground of miscarriage of justice.

10. This Court was shown Exh.P-1 and it is absolutely patent that the words "Umar Hayat" are also readable as "Muhammad Hayat" and anybody could make a bona fide mistake in this connection.

11. It has also come on record that Mst. Jallan had only two minor sons, namely, Umar Hayat and Qamar Abbas, the vendees, and there was no other person in the name of Muhammad Hayat as her son to help the argument that a misdescription was other than based on a bona fide mistake.

12. There are many authorities, which may be referred to where correction was allowed on account of misdescription of the property. In this connection reference may be made to the case of Sardar Nazeer Ahmad v. Ghulam Nabi 1984 CLC 358.

13. In the case of Alexander Mountain & Co. v. Rumere Limited (1948) 2 All ELR 482 it was observed as under:-- "Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just." It was held in the case of Municipal Commissioners, Dacca v. Gangamani Chaudhrani w/o Akshoy Kumar Basak AIR 1940 Cal. 153 as under:-- The name is not always the true criterion for determining the party really sued. The nature of the allegations in the plaint and the nature of the relief sought should be considered. Therefore, where a suit is through mistake instituted against the Chairman of the Municipal Commissioners, instead of the Commissioners themselves as required by section 15, Bengal Municipal Act, and the main relief sought for in the plaint is a declaration that the assessment made by the Municipal Commissioners is ultra vires and illegal the case must be deemed to be one of misdescription . . . ." It was further observed: ".......an amendment imp leading the Commissioners themselves cannot be said to be impleaded a new party within the meaning of section 22, Limitation Act. It is only a case of misdescription, which is sought to be corrected under Order I, Rule 10, Civil P.C. The amendment therefore relates back to the date of the suit as originally filed and time cannot be reckoned as from the date of the amendment." Reliance in this connection was placed on the following cases:-- AIR 1926 Cal. 612, AIR 1928 Cal. 485, AIR 1939 Cal. 175; and AIR 1925 Lah. 441.

14. In the case in hand there prim substitution or addition of a party. Strictly, speaking a mistake had been committed on the basis of what was stated in the sale-deed about the correct name of a party who was intended to be sued. And but for his mistaken name there was no doubt about him otherwise. Of course, without the correction they were bound to be difficulties for the Court to effectually and completely adjudicate upon the matter.

15. Whether an application under Order I, Rule 10, C.P.C. had to be filed in this case or a correction could be brought about under section 153 of the C.P.C.? The .view of the Supreme Court of India in the case of Purshottam Umedbhai & Co. lams v. M/s. Manilal & Sons AIR 1961 SC 325 was that a misdescription could be amended under section 153, C.P.C. In this case suit had been filed in the name of firm and later the plaint was amended to substitute this name with the names of the partners. The observation was as follows:-- "......an amendment of the plaint to enable a proper description o1 the plaintiffs to appear in it in order to assist the Court in determining the real question or issue between the parties. Strictly speaking Order I, Rule 10(1) has no application to a case of this kind because the suit has not been instituted in the name of a wrong person, nor is it a case of there being a doubt whether it has been instituted in the name of the right plaintiff. The provisions of Order I, Rule 10(2) also do not apply because it is not a case of any party having been improperly joined whose name has to be struck out or a case of adding a person or a party who ought to have been joined or whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The suit has been from its very inception a suit by the partners of the firm and no question of adding or substituting any person arises, the partners collectively being described as a firm with particular name."

16. This Court in the case of Ali Mir v. Province of Punjab and another PLD 1983 Lah. 262 was of the view that where a party had been mis-described on account of inadvertence the Court had powers to take curative measures against such misdescription. In this case the respondent was stated to be "Province of Punjab through Chairman, Board of Intermediate and Secondary Education". Whereas; Board being a statutory body could be sued in its own name without arraying the Province of Punjab. Reliance in this connection was placed on the case of Government of West Pakistan v. Ghulam Sarwar Khan PLD 1962 (W.P.) Pesh, 115, in which case the Administrator/Chief Administrator of Auqaf, West Pakistan had not been made a party initially and the case was brought against the name of the Provincial Government. It was held: "It is only a defect of a technical nature not affecting the character of the appellant and at worst only amounted to a misdescription which can be rectified under Order I, Rule 10, C.P.C. The appeal should be construed as having been regularly instituted by the Chief Administrator of Auqaf, West Pakistan......"

17. Obviously while we are looking at the procedural side we have to contend ourselves with the view that the procedural law is meant for advancing the cause of justice and not for impeding it. The procedural law is to be interpreted in such a way that it facilitates the ends of justice and not that it acts as trap for the litigants on trivial technical infirmities which-could arise on account of inadvertence or a bona fide mistake rather than on account of a deliberate or a wicked act. In this case the error was committed because of sale-deed of the appellants. Therefore, this can safely be taken as bona fide mistake.

18. The correction, therefore, allowed by the learned District Judge was in his discretion and under the circumstances of the case is not such which called for interference by this Court through the regular second appeal. This Court, therefore, upholds the judgment of the learned District Judge, which is well-reasoned and dismisses the appeal after hearing all sides. However, there shall be no order as to costs. Q.M.H./M.A.K./M-365/L Appeal dismissed.