P L D 1960 (W (PLP)

SHABIR AHMAD, J.‑This appeal arises out of a suit brought by Shah Muhammad and four others to obtain possession of ,a piece of land by exercise of aright of pre‑emption. The land in suit was sold by Ata Ilahi and six others, defendants Nos. 5 to 11, to Hayat and three others, defendants Nos. 1 to

4. In the plaint Shah Muhammad and his four co‑plaintiffs claimed a superior right of pre‑emption to that possessed by the vendees on the ground that the land in suit had been sold by the common ancestor of the plaintiffs to the common ancestor of the vendors. The suit was resisted and the vendees pleaded in their written statement that the claim of the plaintiffs could not succeed because the ground on which they claimed to have a superior right of pre‑emption to that possessed by the vendees was not recognised by law. This written statement was put in by the vendees on the 9th of April 1953, but it was not till the 5th of December 1953, that the plaintiffs put in an application for amendment of the plaint. They wanted to plead that they were co‑sharers in the khata of the land in suit as well as proprietors in the patti and taraf of the village in which the land in suit was situate. The defendants objected to the amendment being allowed and after hearing arguments of the parties, Mian Muhammad Saleem, the then Senior Civil Judge, Gujranwala, by his order dated the 31st of May 1954, dismissed the appli cation. On the same day, the learned trial Judge dismissed the suit because he found the only issue framed, namely, "whether on the allegations in the plaint the plaintiffs have a pre‑emptive right" against the plaintiffs. It is against this decree of dismissal of their suit that Shah Muhammad and his four co‑plaintiffs have presented this appeal.

2. Learned counsel for the appellants urged that the learned trial Judge erred in not allowing the plaintiff to amend the plaint. He contended that the power given to Courts by Order VI, rule 17 of the Code of Civil Procedure to allow amendment of pleadings was very wide and because the learned trial Judge did dot exercise that power, in spite of the application of the plaintiffs, his decision merited reversal. I' agree with the contention of learned counsel for the appellants that the powers given to Courts by Order VI, rule 17 of the Code of Civil Procedure, to allow amendments of pleadings, are very wide but cannot agree with his implied contention that if an applica tion for permission to amend pleadings is put in the Court muse grant it. The discretion to allow amendments is, no doubt, very wide but the power is not as limited in one respect and unlimited in another as the learned counsel for the appellants wanted it held to be. Whether or not amendment of pleadings should be allowed must depend on the circumstances of each case, and this is why discretion his been given to Courts to allow or disallow amendments. If, for ex Ample, the mistake to be rectified is of a technical character, Courts will not be slow to allow amendment in order that justice between the parties may not be defeated for a mere technicality. If however, the amendment will change the entire complexion of the suit, Courts will be slow to allow the amendment unless such special circum stances exist which make the amendment necessary. That a suit for pre‑emption stands on precisely the same footing as any other suit as far as the powers of Courts to allow amendment of pleadings go is hardly open to question but I am clear in my mind that if, in a suit for pre‑emption a plaintiff wants to amend his plaint in order that he may be able to plead that be had a superior right of pre‑emption, while in the original plain his plea was not to that effect, the Court will be slow to allow the amendment unless the omission, in the first instance, was either accidental or due to a slip of the pen.

3. Learned counsel for the appellants urged that in the present case the plaint was defective due to the evident inex perience of the counsel who drafted it and amendment should consequently have been allowed. That the plaint was defective is hardly open to question because the ground on which the plaintiffs claimed superior right of pre‑emption was not re cognised by law, but whether this defect was due to the inexperience of the counsel who drafted the plaint or to some other reasons, it is not possible to determine on the material on the record. If the defect in the plaint was due to inexperience of the counsel whom the plaintiffs chose to engage, the fault was their own and the defendants cannot be made to suffer for it by fighting litigation for a piece of land which they had bought about seven years ago for good consideration. It has been said by some eminent Judges that pre‑emption being but a predatory right, Courts should grant but little concession to a plaintiff in such a suit, and as I am in respectful agreement with that view, I see no ground for holding that by refusing to allow amendment of the plaint the learned trial Judge exercised his discretion capriciously. As I have already mentioned, the vendees had pleaded in their written statement dated the 9th of April 1953, that the right of pre emption could not be claimed on the grounds mentioned in the plaint, and if the plaintiffs had been vigilant, they could have put in an application for amendment soon, after the written statement was put in, but they waited for over eight months, before putting in the application under Order VI, rule 17 of the Code of Civil Procedure.

4. Learned counsel for the appellants relied on the remarks of their Lordships of the Privy Council in some cases to the effect that pleadings in the British Indian Courts should not be verve strictly construed. These remarks of their Lordships were" made about half a century ago and I do not see why they should be held to be binding exposition of law and to continue to have application even after such a lapse of time. The period that has elapsed since those remarks were made should be sufficient to have taught all concerned the proper method of drafting pleadings, and if some have not benefited their clients are not entitled to grant of Concessions.

5. Learned counsel for the appellants then urged that if the plaintiffs had merely pleaded in the plaint that their right of pre‑emption was superior to that of the vendees, their plaint would not have been thrown out on the ground that it did not disclose how the right of pre‑emption was superior, and conse quently the fact that a wrong ground of superiority of their right was urged should not prejudice them. It is true that if the plaint had merely claimed a superior right of pre‑emption for the plaintiffs without specifying the grounds of such superiority it could not have been considered defective, but that does not mean that even if the grounds urged are wrong the plaint suffers from no defect. If the plaint had been as vague as the learned counsel for the appellants suggested, it is almost certain that the learned trial Judge would have called for a further and better statement under Order VI, rule 5 of the Code of Civil Procedure, and if the particulars furnished had been vague, the plaint could have been thrown out on the ground that it did not disclose a cause of action. The case envisaged by the learned counsel for the appellants is, however, a hypothetical one which does not require determination in the present appeal. The present appeal is against a decree, which can be considered wrong only if the amendment of the plaint had been wrongly disallowed. I have shown that power to allow amendment is entirely discretionary, and as the learned trial Judge did not exercise his jurisdiction in G an improper or a capricious manner, I see no occasion to interfere with his discretion.

6. It was not denied by the learned counsel for the appellants that the ground on which the plaintiffs had claimed a superior right of pre‑emption was not a ground recognized by law. That being so, the suit was rightly dismissed and the appeal cannot but be and is hereby dismissed. I would further direct that the appellants shall pay the vendee‑ respondents their costs of this appeal. KAIKAUS, J.‑The Court had discretion in allowing an amendment and under the circumstances, considering particularly that the suit was for pre‑emption, I am not prepared to hold that it was erroneously exercised. I agree that the appeal be dismissed with costs. A. H. Appeal dismissed.