2008 PLP 943 (MLD)

MAULVI ANWARUL HAQ, J.

The respondent vide registered sale-deed, dated 10-2-2003 purchased the suit land mentioned in heading of the plaint. On 26-6-2003 the appellant filed suit for possession of the suit-land by pre-emption. In. heading of the plaint there is reference to Mutation No.1784 attested on 10-12-2002. The plaint narrates that the respondent has purchased the suit-land from Mst. Mariam Bibi vendor by keeping it secret; that he came to know about it on 19-6-2003 when he made first Talb and then issued a notice of Talb-i-Isshad under registered cover A.D. He claimed to be Shafi Shareek, Shafi Khaleet and Shafi Jar. The respondent filed a written statement, inter alia, taking an objection that the suit is barred by time. On 17-11-2003 an. application was field by the respondent praying that the plaint on the face of it is barred by law being time-barred and it be rejected. In reply the appellant insisted that he has filed suit within time, as according to him under section 30 of the Punjab Pre-emption Act, 1991 the suit could be filed with reference to the date of knowledge. This application was dismissed by the learned trial Court on 12-10-2005. A revision filed against the said order was also dismissed. The respondent filed Writ Petition No.11212 of 2005 in this Court, which was allowed and the case was remanded back to the learned trial Court to decide the application afresh. This was done vide judgment, dated 6-2-2006. After the remand appellant filed an application under Order VI Rule 17, C.P.C. on 10-3-2006. Through this application primarily the appellant wanted to urge ground as envisaged in section 18 of the Limitation Act, 1908 to bring the suit within time. Both these applications were taken up together by the learned trial Court whereas the appellant under Order VII Rule 11, C.P.C. was allowed one under Order VI Rule 17, C.P.C. was dismissed on 21-11-2006.. A first appeal filed by the appellant has been dismissed by a learned Additional District Judge, Lahore, on 30-6-2007.

2. Learned counsel contends with reference to the certified copies of the record appended with this R.S.A. that in the first instance sufficient pleadings had already been made in the original plaint to enable the appellant to avail benefit of section 18 of the Limitation Act, 1908 and in the second permission ought to have been granted to amend the plaint and refusal is against the well-settled proposition that amendment in plaint is to liberally allowed. Relies on the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345). He further contends that the learned Courts below have committed an error of law while being influenced by the observations of this Court while remanding the case back for decision of the application under Order VII, Rule 11, C.P.C.

3. I have gone through the said records with the assistance of the learned counsel. I have already narrated above the material contents of the plaint, the application under Order VII Rule, 11 C.P.C., its reply and the application under Order VI Rule 17, C.P.C. filed by the appellant.

4. So far as the original plaint is concerned, in para. 1 it has been stated that the land has been purchased by the respondent from Mst. Mariam Bibi vendor and sale-deed was kept secret and he came to know about it on 19-6-2003. To my mind, the said allegation is of general nature and is to be found in every such like suit being filed under new dispensation. This, of course, has reference to making of the first Talb as prescribed.

5. Section 18 of the Limitation Act, 1908, which is being relied upon lays down in specific terms that it is not simple concealment which would bring the said provisions of law into play rather the concealment has to be fraudulent. It is admitted position on record that not only was the sale effected by means of registered document but later mutation was also sanctioned on the basis of the same. Needless to state that the particulars of the fraud have to be stated. Apart from the fact that there is no allegation of fraud in the original plaint; even in the proposed amendment I am unable to find any such allegation muchless particulars of the fraud or fraudulent concealment of the sale. I have already noted above that in the reply even no such plea was taken. Learned counsel states at bar that the reply to the application under Order VII rule 11, C.P.C. was also amended and plea was taken that no notice was issued by the sub-registrar or revenue officer in terms of section 31 of the Punjab Pre-emption Act, 1991. This allegation by itself hardly brings the case within mischief of section 18.

6. At this stage I may refer to the earlier judgment of this Court whereby the case was remanded for decision of the application. This judgment is now reported in PLD 2006 Lahore

365. After hearing both the parties it was held that provision applicable would be section 30(a) of the Punjab Pre-emption Act, 1991. I deem it appropriate to reproduce here para. 10 of the said judgment at pages 370-371 of report. "(10) Without prejudice to the above, even otherwise the petitioner has not pleaded in his plaint, that the Registration Officer failed to comply with the provisions o; section 31(2) of the Act, as no notice within the specified time was given after the registration of the sale-deed. It is for the first time, that in reply to the application under Order VII, Rule 11, Cr.P.C., filed by the petitioner, the plea was raised that the plaintiff learnt about the sale when he was dispossessed from the property and that no notice was issued by the officer concerned, in terms of section

31. I am afraid, that by the time the stage to propound the plea had passed, because the presumption of regularity is attached to the officials acts and nothing had been stated to controvert the said presumption in the plaint." It was with the said observations that the case was remanded and the learned trial Court was called upon to decide the application under Order VII Rule 11, C.P.C. Upon my query the learned counsel concedes that this judgment was never challenged in the manner prescribed by law. This being so, the learned trial Court was required to decide the matter within the parameters set down in the remand order.

7. The order rejecting application under Order VI Rule 17, C.P.C. has to be examined accordingly. It is true that the Hon'ble Supreme Court as also this Court have been of the consistent view that amendments in the plaint are to be liberally allowed. However, in the facts and circumstances of the present case dismissal of the said prayer cannot be taken exception to besides I have already observed above that even the proposed amendment do not bring the matter within the ambit of section 18 of the Limitation Act, 1908, R.S.A. is accordingly dismissed in limine. M.H./M-49/L Appeal dismissed.