P L D 1997 Azad J&K 17 (PLP)

(ii) that the proposed amendment does not change or alter the nature of the suit or the cause of action, therefore, the amendment was correctly allowed by the trial Court; and (iii) that the trial Court after due consideration of the facts and law, proceeded to allow the amendment application which was not to be interfered with lightly, in revision. The learned counsel referred to 1992 SCR 190, PLD 1960 Karachi 581 and PLD 1985 SC 345, in support of his assertions.

4. I have heard the learned counsel for the parties and also gone through the record. The sale-deed was executed on September 2, 1991. The plaintiff filed a suit on the basis of right of prior purchase on August 27, 1992. The application to amend the plaint was moved on October 16, 1996. A perusal of the record shows that the plaintiff-respondent sought for the rclc~ aa; amendment after the lapse of period of limitation prescribed for filing a pre-emption suit to introduce a new ground in the plaint. Therefore, the primary question involved is-whether in a pre-emption suit, the plaintiff can effect any amendment to add a new ground after the expiry of period of limitation.

5. Under order 6, Rule 17, C.P.C. the Court may, at any stage or the proceedings, allow either party to alter or amend his pleadings provided it is necessary for the purpose of determining the real question in controversy between the parties. The rule is intended to secure proper administration of justice which is discretionary and the same has to be exercised in accordance with judicial principles and should be used for the purpose of furthering the ends of justice. It may be allowed if the application is moved in good faith. The amendment will not be allowed where its effect would be to convert the character of the suit. The subject-matter of the suit or the cause of action ought not to be allowed to be substituted. It may also be clarified that mere introduction of fresh matter does not alter the nature of the suit provided the same will not work injustice to the other side. The amendment will work injustice if it results in taking away the right accrued by lapse of time. Therefore, the plaintiff cannot be allowed to add a new cause of action if, by the time the amendment is sought, it has become time-barred.

6. The pioposition involved in the case, came under discussion before the Lahore High Court in the case titled Rulia Ram v. Ram Chander Das and others AIR 1933 Lahore 774(1), wherein an amendment application for introducing a new ground on which the right of pre-emption claimed, was rejected. It was also held that the effect of amendment of the plaint would be to change the ground on which the applicant had claimed his right and would take away from the defendant a legal right which had accrued to him by lapse of time. The learned Judge who spoke for the Court, observed in the following words:-- "...A pre-emption suit should state the ground on which right is claimed; and though the Court has discretion to allow amendment in all cases where it may be just and proper to do so, where the effect of the amendment of the plaint by which plaintiff seeks to change the ground on which his right is claimed, is to take away from the defendant a legal right which has accrued to him by lapse of time, such amendment should not be allowed."

7. In another case titled Shah Muhammad and others v. Hayat and others PLD 1960 (W; P.) Lahore 975, the Division Bench of the Lahore High Court comprising Mr. Justice Shabir Ahmed and Mr. Justice B.Z. Kaikaus, JJ, disallowed the amendment to add a new ground of right of pre-emption, with the following observations:-- .. Whether or not amendment of pleadings should be allowed must depend on the circumstances of each case, and this is why discretion has been given to Courts to allow or disallow amendments. If, for example, 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 circumstances 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 if in a suit for pre-emption, a plaintiff wants to amend his plaint in order that he may be able to plead that he had a superior right of pre emption, while in the original plaint 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."

8. A similar proposition arose before this Court in a case titled Sardar Khan v. Ghulam Sarwar and others PLD 1982 Azad J&K 128, wherein Mr. Justice Sardar Said Muhammad Khan, as he then was, gave the verdict in the following words:-- '...The reason assigned for belated amendment application being incorrect, the application is not bona fide. Even otherwise, in a suit of pre-emption, an amendment seeking to introduce a new ground either for substituting or supplementing the qualification for preferential right of pre-emption cannot be allowed after lapse of period of limitation prescribed for filing the suit of pre-emption. Because, such an amendment would deprive the defendant of a valuable right which accrued to him by lapse of time ...."

9. A similar situation came across in a case titled Raj Muhammad and others v. Munshi Khan and others PLD 1989 SC (AJ&K) 56, wherein the proposition in hand was elaborately resolved in the following manner:-- "...In a suit for pre-emption, the amendment seeking to introduce a new ground either for substituting or supplementing the qualification alien to the original suit for preferential right of pre-emption cannot be allowed after the lapse of period of limitation prescribed for filing the suit of pre-emption; because such an amendment would deprive the defendants of a valuable right which had accrued to them by lapse of time and such a recourse is not permissible, , In the present case, a qualification to pre-empt the suit land was omitted to be included in the plaint and there is nothing to say that this omission was, in any way, through inadvertence or for any other reason beyond the control of the petitioner. Nothing was shown to prove that in pre-emption suits a qualification omitted to be entered in the plaint was allowed to be included by way of an amendment after the prescribed period of limitation."

10. The learned counsel for the plaintiff-respondent, in support of the order, relied upon 1992 SCR 190 in which the amendment was allowed in a pre emption suit after the lapse of period of limitation, to include the share of Shamilat left out at the time of institution of the suit. It was observed that the amendment can be allowed if the two conditions are fulfilled, (i) the amendment should not change the nature of the suit; and (ii) no new cause of action is set up. The relevant authority with its distinct facts, is not squarely applicable to the case in hand as the only question of adding a part of immovable property omitted in the plaint due to bona fide mistake, was involved. The amendment was held to be allowed after the expiry of period of limitation as the'omission was not intentional or due to gross negligence on the part of the party concerned. In the instant case, the proposition deals with the addition of a new ground on which thd' pre-emption case is based. The other case, PLD 1960 Karachi 581, cited by the learned counsel for the respondent also does not deal with the proposition in hand, as the suit was filed for the recovery of an amount as damages and the plaintiff amended the plaint by a claim on the alternative ground in respect of a further amount for which the defendant took an objection contending that the plaintiff's claim on the alternative ground, has changed the cause of action and substituted it with a new cause of action. It was held by the learned Judge that there was no change in the cause of action and cannot be held to have been introduced a new or fresh cause of action. Therefore, it has no application to the present case. The case, PLD 1985 SC 345, referred to by the learned counsel for the respondent, is also not a pre-emption case, therefore, the proposition in hand did not come under discussion. There is no cavil with the general principle established in the said authorities which deal with the proposition that the amendment can be effected at any stage of the proceedings if that is necessary for the purpose of determining the real question in controversy between the parties, provided the cause of action is not changed and delay alone in applying for amendment or expiry of period of limitation or increase in court fee and change of jurisdiction, would not be a ground for refusing the amendment in the plaint.

11. In view of the above discussion, it calf safely be resolved that in a pre emption suit, no new ground can be. added or substituted after the prescribed limitation provided for the filing of a suit, as such, the impugned order is not maintainable which is hereby set aside by accepting the revision petition. A.A./L30/AJ&K Revision accepted