1988 PLP 25 (CLC)

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0. VI, R. 17‑‑Duty of Court‑‑Institution of Courts exists for sole purpose of administering justice to parties, in cases brought before them‑‑Rules of procedure are enacted to assist Courts in reaching correct and just decisions‑‑Unless unsurmountable, technicalities, if found to obstruct cause of justice, must be avoided‑‑Correction or an error need not always amount to amendment of pleadings. (e) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), S.100‑‑Pre‑emptor non‑suited on account of misdescription of property in plaint‑‑Validity of finding‑‑Where pre‑emptor's suit was dismissed by First Appellate Court on account of misdescription of property in plaint, although sale‑deed on basis of which sale had been pre‑empted was annexed with plaint and are pre‑empted was correctly described in such plaint, High Court set aside such finding of First Appellate Court as erroneous in law and decreed suit of pre‑emptor in second appeal. Kh. Mohammad Yousaf Saraf for Appellant. Maulvi Sirajul Haq for Respondent. Date of hearing: 10th October, 1987. This second appeal arises out of a suit for pre‑emption and the main question for consideration is, whether the suit suffered from partial pre‑emption as held by learned Judge below. By sale‑deed dated 4‑4‑1964, Allah Dad sold 31 kanals 5 marlas of land comprised in several Khatas and Khasra numbers situate in three different revenue estates, to Ahmad Khan at the price of Rs.3,

000. Khuda Dad claimed pre‑emption in respect of this sale and sued for possession. It is alleged that the land in suit was sold for Rs.913 only, but inflated price was shown in the deed to ward off pre‑emption. Right of pre‑emption was claimed on the grounds of being real brother of the vendor and a co‑sharer in the Khata. The suit was instituted on 3‑4‑1965. Defendant contested the suit and raised number of objections. It was pleaded that part of the land was received in exchange and was not pre‑emptible; that the suit suffered from partial pre‑emption; that the plaintiff had no better right and that the land was purchased at the price of Rs.3,000, which amount was fixed in good faith and was actually paid to the vendor. From the pleadings, as many as seven issues, including that of relief, were settled by the trial Court. After close of plaintiff's affirmative evidence and recording part of defence evidence, on 18‑12‑1965, plaintiff applied for amendment of the plaint to correct misdescription of the pre‑empted property. Defendant did not seriously oppose the amendment. On 5‑2‑1966, Court gave permission for amendment of the plaint and subjected the amendment to the payment of Rs.20 as costs to the opposite side. Consequently amended plaint was put in Court on 1‑3‑1966. Defendant submitted amended written statement. From the amended pleadings, Court framed additional issue on 7‑7‑1976:‑ "Whether the amended plaint dated 1‑3‑1966 is in accordance with the permission granted by the Court?" Thereafter, the Court of first instance recorded remaining evidence of the parties. On examination of the record, learned Senior Civil Judge, vide his decision dated 10‑10‑1966, found for the pre‑emptor and gave him decree for the land on payment of Rs.913 to be deposited by or before 22‑10‑1966. It was held that the suit did not suffer from partial pre‑emption; that the entire transaction was pre‑emptible; that the land was sold for Rs.913, which amount also represented its market value, and that the plaintiff had better right. Defendant appealed to learned District Judge, Rawalpindi, however, appeal was heard by learned Additional District Judge, who, on issue of partial pre‑emption, disagreed with the original Court, accepted the appeal and dismissed the suit on 18‑12‑1967. Aggrieved of this decision, plaintiff has come up in second appeal to this Court. On behalf of the appellant, it is contended by Kh. Muhammad Yousuf Saraf, Advocate, that the suit did not suffer from partial pre‑emption. It was argued that entire property conveyed by sale‑deed (Ex.P‑1) was pre‑empted by the plaintiff arid nothing was left out or omitted from the plaint to attract rule of partial pre‑emption. Learned counsel pointed out that except for few errors and omissions of purely accidental and clerical nature, no part of the property was omitted from the pre‑emption claim. Errors and omissions, which crept into the pleadings on account of sheer inadvertence of the person, who drafted the plaint, could not have adverse effects on the pre‑emptor's right to get the entire property and the Court, in exercise of its powers under section 153, C.P.C., could have suo motu ordered correction of misdescription of Khasra numbers and Khatas. It was strenuously argued that rule of partial pre‑emption was applied on totally incorrect and wrong premises. As against this, Maulvi Sirajul Haq, counsel for the respondent, took up two pleas, one, that the suit was correctly found to suffer from partial pre‑emption, and, second, that the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan in Government of N.‑W.F.P. through Secretary Law Department v. Malik Said Kamal Shah P L D 1986. SC 360 precluded the Court to pass a decree for pre‑emption, on the ground of relationship, found repugnant to injunctions of Quran and Sunnah. This plea, which became available to the respondent more recently, was permitted to be urged only as it was a pure legal question requiring no evidence for its decision. As is evident, this second appeal raises only two points. One is in regard to plea of partial pre‑emption and the second is with regard to the effect of judgment of the Shariat Appellate Bench of the Supreme Court on the rights of the parties. I propose to take up the second plea first. To me it is clear that the precedent case does not adversely affect the rights of the appellant. Sale was made on 4‑4‑1964. Suit for pre‑emption was instituted on 3‑4‑1965. It was decreed by the original Court o In 10‑10‑1966. Plaint indicated that pre‑emption was claimed on two grounds i.e. as real brother of the vendor and co‑sharer in the Khata. Defendant admitted the relation of plaintiff to the vendor. In view of the admission, learned trial Court did not record any finding as to whether the plaintiff was also a co‑sharer in the Khata. It was held that as brother, plaintiff had decidely a superior right. On three crucial dates i.e. at the date of sale, at the time of the suit and finally at the date of the decree given by the trial Court, plaintiff maintained his superiority. Appeal was allowed on 18‑12‑1967 on the sole ground that suit suffered from partial pre‑emption. It was not found that plaintiff had no right of pre‑emption on the grounds taken up in the plaint. It is settled statement of law that pre‑emptor is obliged to maintain his superiority on three dates alluded to above only and not beyond that. In the instant case, it was not denied that‑the plaintiff maintained his superiority till 31‑7‑1986, when judgment of the Supreme Court took effect and became operative law to be followed by the Courts. It is clear that the decrees passed by the Courts of competent jurisdiction prior to the coming into force of the law declared by the Supreme Court were not hit. In the case under consideration, Court of first instance accepted plaintiff's superior right of pre‑emption and gave him decree. Appeal Court did not interfere on the ground that the plaintiff had no right of, pre‑emption. In fact impugned judgment proceeded on a totally; different ground. Decision of the Shariat Appellat Bench obviously did not apply retrospectively to set at naught the rights already accrued under the decrees of the Courts, passed competently in accordance with the law then prevailing. Contention based on retrospectivity, is without substance and cannot be entertained. Additionally, copies of revenue papers formally exhibited indicate that plaintiff was also a co‑sharer in the Khata. In these circumstances, plaintiff had better right as against the defendant, who was neither related to the vendor nor possessed any other qualification to resist the pre‑emption suit. This brings me to the plea of partial pre‑emption, on which the impugned judgment proceeds. On consideration of evidence, oral as well as documentary, I am of the opinion that the pre‑emptor had sued for all the land disposed of by the transaction' in dispute and the suit was not for partial pre‑emption. It is common ground that by sale‑deed dated 4‑4‑1964, Allah Dad had sold 31 kanals 5 marlas of land from three revenue estates of Gangal, Adrana and Chak Amral, Tehsil Rawalpindi. Sale‑deed gives correct description of the property with reference to its Khatas and Khasra numbers. There is no dispute that the plaint, as it was originally filed, contained' the correct area of the land sold. In the written statement, though the objection in regard to partial pre‑emption was taken, yet no detailed averment with reference to the correct description of the portions of the property, which were either misdescribed or omitted from being included in the plaint was made in the written statement. As said above, to meet the objection of partial pre‑emption, plaintiff sought amendment of the plaint. In the application, it was averred that in the plaint for Khasra No.1264, Khasra No.1164, for Khata No.184/432, Khata No.184/434 and for Khasra No.1295, Khasra No.295 were written. These being clerical mistakes, it was prayed that permission be granted to correct the errors. As observed above, Court gave the necessary permission and amended plaint was filed in Court. Still, in regard to description of the property, amended plaint suffered from some errors. Khasra No.73 written in the original plaint was omitted from the amended plaint. Instead of Khasra No.1167 Khasra No.1187 was mentioned in the plaint. 1/36th share was sold from Khata No.185, whereas, in the plaint, it was mentioned that the area sold was 1/38th share of Khata No.185. Similarly correct number of Khasra sold was 1653/704 whereas in the plaint in its place Khasra No.1652/704 was mentioned. These errors in regard to the description of the property, led the learned Judge below to conclude that suit suffered from partial pre‑emption. With respects to the learned Judge, I do not think that his approach to the issue of partial pre‑emption was correct. In the plaint, original as also amended, plaintiff had sued for the land transferred by registered deed dated 4‑4‑1964. Alongwith the plaint copy of the sale‑deed was annexed. From the averments in the plaint, it clearly appears that the plaintiff intended to pre‑empt the entire transaction. In the plaint he gave the correct area of the land sold. It is not the case of respondents that the area of land sold and given in the plaint was incorrect. Rule 3, Order VII, C..P.C. provides that, where the subject‑matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it and in case such property can be identified by boundaries or numbers in a record of settlement of survey the plaint shall specify such boundaries or numbers. It is correct that the plaint did not give some of the correct Khasra numbers of the property sold. The question at issue is, whether in result of this misdescription, plaintiff must suffer a total defeat. In the circumstances of the present case, in my opinion, plaintiff did not deserve this penalty. He desired to pre‑empt the sale made by his brother in which he was also a co‑sharer. He obtained certified copy of the sale‑deed and approached a lawyer to file the suit. While drafting the plaint, it appears that the correct description of the property available in the sale‑deed could not be correctly translated in the plaint, and in doing so some errors in regard to Khatas and Khasra numbers came to be made by the learned counsel. When the defendant first objected that the suit suffered from partial pre‑emption, some errors came to be removed through amendment, but yet, errors noticed above could not catch the eye of the plaintiff's counsel and thus persisted in the record.. On ground of slight misdescription alone, suit could not have been found to suffer from partial pre‑emption and dismissed in its entirety. It is settled statement that where a property has been accidentally misdescribed but there is no doubt as to its identity, Court has ample powers to permit amendment to have the record corrected. It is equally true that Courts ought to be reluctant to non‑suit parties on purely technical grounds, if a way of escape can be found. In this case, clear way of escape was to permit the plaintiff to correct the Khasra numbers wrongly described in the plaint rather than to non‑suit him. Section 153, C . P : C . gives powers to the Court to amend any defect or error in any proceedings or suit and also to permit all amendments necessary for the purposes of determining the real question or issue raised by or dependant on such proceedings. Under this section of law, the Court has wide powers to permit correction of the errors in regard to description of l property. Institution of Courts exists for the sole purpose of administering justice to the parties, in causes, brought before them. Rules of procedure are enacated to assist the Courts in reaching correct and just decisions. Therefore, where necessary, they must be put in use to aid the sacred cause of justice. It is my considered view that unless unsurmountable, technicalities, if found to obstruct the cause of justice, must be avoided. In my opinion, learned Judge below was persuaded more by technicalities than the real substance of the matter, which he was called upon to decide. It could not be inferred from the plaint as also from the conduct of the pre‑emptor that he intended to relinquish his claim to any part of the property sold by his brother. Rather his intention appears to sue in respect of the entire transaction. The wide language of section 153, C.P.C. would cover a case like the present. The correction of an error need not always amount to an amendment of pleadings. Written request was to correct the errors and on merits, there was no valid objection to the grant of this relief. It was, in these circumstances, that I permitted the appellant's counsel to correct the mistakes in the plaint. Necessary correction have been made. In appeal, apart from the plea of partial pre‑emption, decision of the original Court on question of fixation of sale‑price, its payment and market value of the property was also mooted. As the learned Judge accepted the plea of partial pre‑emption, he did not think it necessary to record separate findings on issues Nos. 4 and

5. To obviate remand of the case, Kh. Muhammad Yusuf Saraf, Advocate, conceded issue No.4 to the respondent and agreed that appellant shall pay Rs.3,000 as the sale price. For the reasons given above, appeal is allowed, impugned judgment and decree dated 18‑12‑1967 of learned Additional District Judge, Rawalpindi, are set aside, judgment and decree dated 10‑10‑1966 are partially modified and the suit is decreed in favour of the plaintiff conditional on payment of Rs.3,000, which he, after adjustment of the amount already paid by him, shall deposit in Court within one month. In default, his suit shall stand dismissed with costs. Costs of this appeal shall be borne by the parties. A.A./K‑51/L Appeal accepted.