P L D 1998 Azad J&K 15 (PLP)

"(1) that the plaint of his client was rejected on miscellaneous application of the vendee without seeking amendment in the written statement; (2) that the application moved for amendment by his client after the change of law, was wrongly dismissed by the trial Court. Therefore, on account of these two objections the judgment and decree under appeal is liable to be set aside. He prayed that the application moved by his client for amendment be allowed and the case be remanded to the trial Court for decision on merits in accordance with law. On the other hand learned counsel for the respondents has supported the orders passed by the Courts below. I have considered the respective contentions of the learned counsel for the parties in the light of the record. So far as first objection of the learned counsel for the appellant is concerned, no doubt, it is correct that rejection of the plaint under Order 7, Rule 11 of Civil Procedure Code could have been sought through amendment of the written statement, but there was no bar under the provisions of Civil Procedure Code for invoking the powers of the Court under this provision of law through a miscellaneous application. The learned Sub‑Judge, Dhirkot, therefore, has committed no error in law, which could Justify the interference of this Court in exercise of its appellate jurisdiction. The second objection is also without substance. An application was submitted on behalf of the plaintiff‑appellant during the pendency of the case before the trial Court on January 6, 1993, seeking amendment in the plaint on the ground that section 14 of the Right of Prior Purchase Act, 1993 (hereinafter to be referred as Act) has been amended and he being Shafi‑ul‑Khalit and Shafi‑ul‑Jar was entitled to claim, decree of Prior Purchase on these two grounds. On this application objections were invited which were accordingly filed by the vendee. The vendee rebutted the claim of the plaintiff‑appellant by claiming himself to be the co‑sharer in the land with vendor, besides having common boundaries with him. He prayed for the rejection of the application on the ground that the same has been moved beyond the period allowed for exercising the right of pre‑emption. This application was rejected by the trial Court on the ground that it was brought beyond the period of limitation. It was further observed by the trial Court that new grounds cannot be allowed to be incorporated through amendment in the plaint as these were inconsistent to the original stand, taken in the plaint. The amendment in the Right of Prior Purchase Act, 1993, was made and given effect from 13th March, 1993. Under the amended Act, "Subject to the provisions of section 13, the following were held entitled to have the Right of Prior Purchase in respect of agricultural land and village immovable property:‑ - (a) Firstly in Shafi‑Sharik; (b) secondly in Shafi‑Khalit, and (c) thirdly in Shafi Jar, It is settled proposition of law that in pre‑emption cases, the Court has to decline the prayer for amendment, if fresh suit on the amended ground would be barred by limitation on the date when application for amendment was moved. It is so, because the vendee cannot be deprived from a legal right which has accrued to him by the lapse of time. In the present case, the sale‑deed was executed on June 5, 1989. The suit for pre‑emption was filed by the present appellant on May 12, 1990. The application for amendment, claiming Superior Right on the ground of Shaft‑ul‑Khalit and Shafi‑ul‑Jar was moved much beyond the prescribed period of limitation on June 6, 1993. The Trial Court, therefore, was justified in refusing the prayer for amendment. Both the Courts below, in my view, have committed no error in law while dismissing the suit under Order 7, Rule 11 of Civil Procedure Code, because during the pendency of the suit the vendee had improved his status, as he had become co‑sharer with vendor on account of Registered Gift‑deed, executed by his father in his favour of May 23, 1993, on the basis of which, Mutation No. 1362 was attested in his favour on May 24, 1993. In view of above, there is no force in the appeal. The same, therefore stands dismissed with costs. A.A./143/AJ&K Appeal dismissed