P L D 1999 Peshawar 22 (PLP)

Mir Hussain (hereinafter referred to as petitioner) brought a suit for pre‑emption against the respondent, namely, Mst. Nasim Akhtar (hereinafter referred to as respondent) challenging Mutations Nos.2140 and 2148 attested on 5‑6‑1990 in respect of the land mentioned in the heading of the plaint. During the pendency of the suit the petitioner moved an application under Order 6, Rule 17 for the amendment of his plaint in order to give details of the 'Talbs' while Mst. Nasim Akhtar respondent also preferred an application under Order 7, Rule 11, C.P.C. alleging that the petitioner had failed to make 'Talb‑i Muwathibat' and 'Talb‑i‑Ishhad' in accordance with law. She therefore, prayed that the suit of the petitioner be dismissed.

2. After having heard the arguments of the parties the learned Senior Civil Judge, Haripur allowed amendments in the plaint vide his order dated 29‑2‑1996. Aggrieved by the said order an appeal was filed and the learned District Judge, Haripur vide his order dated 16‑9‑1996 accepted the appeal and dismissed the suit of the petitioner without recording any evidence.

3. The petitioner having been dissatisfied with the aforesaid order dated 16‑9‑1996 of District Judge, Haripur has moved this Court in revision petition.

4. I have heard the learned counsel for the parties and have examined the record. Learned counsel for the petitioner contended that the learned District Judge, Haripur had no jurisdiction to entertain an appeal as the impugned order does not fall under the purview of Order 41, Rule 1, C.P.C. According to the learned counsel it also was not a revisable order as contemplated under section 115, C.P.C. as the matter under dispute had not been fully decided, therefore, according to the learned counsel the impugned order was without jurisdiction. The learned counsel for the petitioner referred me to para.2 clause ( ) of the plaint wherein it has been clearly mentioned that 'Talb‑i Muwathibat' had been claimed through notice though the description of the 'Talbs' is not endorsed therein. The learned counsel for the respondent in reply contended that the three conditions of 'Talbs' were mandatory in nature and were missing from the plaint. According to him, when he moved an application under Order 7, Rule 11, C.P.C. on 20‑9‑1995 the petitioner realized his mistake and subsequently moved an application for amending of his plaint at a belated stage on 18‑11‑1995 to fulfil the legal lacunas of his plaint, as according to him the suit had been filed by him on 1‑9‑1990, therefore, the application was brought after a delay of five years. He, therefore, urged that no amendment can at this stage be made by the trial Court. Reverting back to the case of the petitioner the learned counsel for the petitioner cited PLD 1985 SC 345, reference at page 350‑F and which is reproduced as follows:‑‑ "The use of the expression 'at any stage of the proceedings' in rule 17 is not without significance. The word 'proceedings' to be interpreted in a liberal manner so as to give a proper scope to the rule in accordance with its purpose, as including appellate stage and that too up to the Supreme Court." Besides, assistance was also sought from the latest ruling on the subject 1998 SCMR page 2102, reference at (2108‑2109) E & F: "Suit for pre‑emption ‑‑‑Rejection of plaint ‑‑‑Validity‑‑‑Averments to Talbs were admittedly contained in plaint, therefore, could not legally be rejected under provisions of Order 7, Rule 11, C.P.C."

5. In the instant case the 'Talbs' have been mentioned in the plaint and a proper notice had been served on the respondent.

6. In the light of the aforegoing discussion this revision petition is allowed, the impugned judgment passed by the District Judge dated 16‑11‑1996 is set aside and the judgment and decree passed by the trial Court dated 29‑2‑1996 is restored. The case is remanded to the trial Court with a direction to proceed with the amended plaint already annexed on the file on 8‑4‑1996 in accordance with law and decide the case within six months from the passing of this order as it is an old case pertaining to the year 1990. No order as to costs. H. B. T. /241 /P Revision allowed