1984 PLP 1138 (MLD)

Ch.Ghulam Murtaza for Respondent. Date of hearing: 18th October, 1983. This regular second appeal is directed against the judgment and decree dated 18-11-1975 of the District Judge, Sheikhupura, whereby the first appeal filed by the appellant herein against the judgment and decree of the trial Court dated 6-5-1974, dismissing the suit of the appellant-plaintiff for partial pre-emption and also rejecting the application for amendment of the plaint for including Killa No.10/2 of square No.94 as a pre-empted land was upheld.

2. The question of law involved in this appeal is as to whether the Courts below have acted illegally in the exercise of their discretion under Order VI, rule 17, Code of Civil Procedure, by disallowing the amendment of a formal nature in the plaint, necessary for the determination of the rights of the parties.

3. The appellant-plaintiff initially filed a suit for possession through pre-emption in respect of the land measuring 22 Kanals and 5 Marlas on the basis of Fard Jamabandi and the Register Haqdaran for the year 1968-69, Exh.P.2. On getting copy of the registered sale-deed, the appellant came to know that an area of land measuring 1 Kanal and 4 Marlas pertaining to Square No. 94, Killa No. 10/2, has been inadvertantly omitted in the plaint. Accordingly, an application under Order VI, rule 17, Code of Civil Procedure, was made to the trial Court, for rectifying the error. The application was disallowed and the suit was also dismissed for partial pre-emption. This order was confirmed in first appeal. Hence this regular second appeal.

4. Learned counsel for the appellant contends that the amendment prayed for, before the expiry of period of limitation, was of a formal nature, and therefore, keeping in view the policy of law as envisaged by Order VI, rule 17, Code of Civil Procedure, ought to have been allowed for the determination of the rights of the parties. It is next contended that the Courts below were labouring under a misconception that even in the application for amendment the appellant did not pray for including all the Khasra numbers in respect of the pre-empted land but only prayed for inclusion of Killa No.10/2 of square No.94.

5. Learned counsel for the respondent vehemently contested the appeal on the ground that the appellant was guilty of negligence in pursuing his case, inasmuch as he should have perused the sale-deed before instituting the suit. It is next contended that the provisions of pre-emption law are to be strictly construed.

6. I have gone through the copy of the plaint, sale-deed and the Jamabandi, on the record and found that omission of one Khasra number was due to inadvertence. inasmuch as the description of the land was correctly given but only due to error one Khasra number was omitted. The amendment sought for, before the expiry of limitation being of a formal nature and not altering the nature of the suit ought to have been allowed for the determination of the rights of the parties. Refer Bahadur Shah v. Sharaf P L D 1973 Lah.

513. The Courts below were labouring under a misconception that the application for amendment of the plaint was defective as the appellant-plaintiff failed to pre-empt the entire land sold by the vendors by not including Killa No.6 of square No.95 and Killa No.18/2 of square No.128. These Killas were never the subject-matter of the sale. Their description was given in the sale-deed only to indicate the total ownership of the vendors. In view of the above, the appeal is accepted and the impugned judgments and decrees of the Courts below dismissing the suit and refusing amendment of the plaint are set aside. The application for amendment is allowed and the case is remanded to the trial Court for disposal on merits, with no order as to costs. H. B. T. Appeal accepted.