2005 PLP 67 (MLD)

Art.199

Constitutional petition

Maintainability of

Interim order

Challenge to

Constitutional petition against interim order arising out of civil proceedings, was not maintainable, unless it suffered from jurisdictional error. Tafazal H. Rizvi for Petitioner. Syed Mukhtar Abbas for Respondent No.

1. Date of hearing: 17th November, 2003. The plaintiff/respondent filed a suit on 9-4-1999 for possession through pre-emption regarding land measuring 4 Kanals, 9 Marlas situate in Mauza Bagh, Tehsil and District Jhang. It was averred that the land owned by Gola Khan was purchased by defendant/petitioner for an ostensible price of Rs.50,000 but in order to defeat the superior right of pre-emption of the plaintiff/respondent it was given the colour of an exchange vide Mutation No.2299 attested on 23-1-1999. The superior right of pre-emption was claimed on the ground of being Shafi Sharik. The suit was resisted by defendant/petitioner denying all the allegations. During the pendency of the suit the defendant/petitioner moved an application under Order VII, rule 11, C.P.C. for rejection of the plaint on the ground that the plaintiff had asserted his superior right of pre emption on the ground of being Shafi Sharik whereas he enjoyed no such status. Plaintiff/respondent filed an application under Order VI, rule 17, C.P.C. seeking amendment in the plant by taking additional grounds of being Shafi Khalit and Shafi Jar. Both the applications were consolidated. The learned trial Court vide its order dated 2-12-1999 dismissed the application under Order VII, rule 11, C.P.C. and allowed the application under Order VI, rule 17, C.P.C. for amendment of the plaint by allowing additional grounds. The revision petition before the learned Additional District. Judge, Jhang failed on 19-12-2002.

2. Learned counsel for the petitioner contended that the amendment sought by the respondent changes the character of the suit as such the same cannot be permitted at the belated stage. Conversely the learned counsel for the respondent defended the impugned order.

3. I have gone through the impugned order and considered the arguments of the learned counsel for the parties. In my view the additional ground .of Shafi Khalit and Shafi Jar do not change the nature of the suit. The nature of the suit, insofar as its cause of action is concerned, is not changed by the amendment. If the cause of action does not change, the main substance of the suit and its nature would not change and if that does not change, the question of limitation would then remain only of form and not of substance. See Mst. Ghulam Bibi and others v. Sardar Khan and others (PLD 1985 SC 345). In a similar case Muhammad Anwar and 3 others v. Allah Bakhsh and another (1986 SCMR 1575), wherein the additional ground of being co-sharer was being taken in the application for amendment of the plaint the Hon'ble Supreme Court observed as under:-- "As the case stands, we are inclined to agree with the findings arrived at by the High Court in that the law does not place any restriction including that the limitation on a pre-emptor to add a new ground to his right of pre-emption in the plaint by way of amendment after the expiry of the period of limitation unless, of course, the new ground changes the very character of the suit. In the present case the amendment sought for by taking the new ground in no way changes the, character of a suit. Even otherwise Constitution petition against an interim order arising out of civil proceedings is not maintainable unless it suffers from any jurisdictional error. None has been pointed out before this Court. This petition has no merit and is dismissed. H.B.T./K-72/L Petition dismissed.