1979CLC573 (PLP)

Respondents 1 to 5 filed a suit against the petitioner to pre-empt the sale of land measuring 6 kanals and 7 marlas, made in their favour by the respondents' mother, namely Mst. Manzoor Fatima. The sale was witnessed by Mutation dated 20-4-1974.

2. The petitioner resisted the suit. In the written statement he did not deny the sale or the respondents' superior right of pre-emption, resting on the ground of their relationship with the vendor. The suit was primarily contested on the plea that the respondents were minors and their father through whom they filed the suit participated in the bargain, and that the sale price was also paid to him. From these premises, the estoppel by conduct was pleaded by the respondents.

3. When the respondents had already led their evidence and the petitioner was required to producer, his evidence, he filed an application under Order, VI, rule 17 of the Civil Procedure Code, for amendment of the plaint, whereby he sought to raise a plea in the plaint that the sale in question was actually a retransfer by the vendor to the petitioner under a contract of conditional sale and was, therefore, not preemptible. An additional ground of defence put forth was that at the time of retransfer the petitioner was a tenant of the suit land and thus had a preferential right of pre-emption.

4. The learned Civil Judge held that the case was at the stage of evidence and all together a new case was set up through the application for amendment. Accordingly, by his order dated 5-3-1977, he disallowed the amendment. In revision, the learned District Judge was of the view that so far as the plea regarding tenancy was concerned, the petitioner could lead evidence in this respect that he had the superior right of pre-emption being a tenant in the suit land. As regards the other plea he held that it would completely change the nature of the suit. Consequently, he dismissed the revision petition on 18-6-1977.

5. The learned counsel for the petitioner argued that the transaction was not a sale as the land was returned to the petitioner by the vendor under a contract of mortgage and the transaction was, therefore, not pre-emptible. He referred to Mutation No. 531, dated 20-4-1974 which embodies the statement of Muhammad Zarif, the husband of the vendor that the land purchased by her from the petitioner vide Mutation No. 508, was being transferred to him for consideration of Rs. 7,950, and that the vender was already in possession of the land.

6. The learned counsel relied on Abdul Aziz v. Multan Electric Supply Co. Ltd. (PLD 1958Lah.614) to argue that the amendment could be claimed by a litigant as a matter of right and that the proposed amendment did not amount to setting up a new case. In this respect he also referred to Charan Das and others v. Amir Khan and others (AIR1921PC50). The learned counsel, when questioned, as to how the writ jurisdiction could be invoked in the circumstances of the instant case, replied that this jurisdiction is analogous to revisional jurisdiction and that the view taken by the learned District Judge amounted to failure to exercise jurisdiction, which rendered his order liable to be struck down in exercise of constitutional jurisdiction of this Court.

7. The learned counsel for the respondent, on the other hand, heavily relied on the pleadings of the parties and argued that not only the sale but also the respondent's superior right was admitted by the petitioner in his written statement, and that, therefore, he could not be permitted to turn round and put forth all together a new case that there was no sale and the transaction was merely that of retransfer of the land to the petitioner. He cited Shah Muhammad and others v. Hayat and others (P L D 1960 Lab. 975.) to argue that in the circumstances of this case, the amendment was rightly refused by the learned two courts below. He also submitted that the impugned order did not suffer from any jurisdictional error, and therefore, the writ jurisdiction could not be invoked by the petitioner.

8. I have considered the submissions made by the learned counsel for the parties and also examined the record. The averments made in the plaint that the sale took place and that the respondent had the superior right of pre-emption, were not denied by the petitioner. The main ground of his attack on the sustenance of the suit was that the respondents had taken part in the sale transaction and also received consideration from the petitioner and that therefore, they were precluded from filing the suit for pre-emption. In the proposed amendment the sale has been denied and the transaction described as retransfer of the land under agreement said to be subsisting between the parties. The respondents were thus sought to be non-suited, by changing the character of defence on the strength of all together a new ground proposed to be introduced in the written statement. It is well established that a party cannot be allowed to set up entirely a new case in the pleadings through an amendment. In Shah Muhammad's case, relied upon by the learned counsel for the respondents, the plaintiffs-respondents claimed superior right of pre-emption on the ground that the suit land was sold by an ancestor of the respondents to an ancestor of the vendees. The defendants resisted the suit on the plea that this ground was not recognized by law. The respondents then sought to amend the plaint that they were co-sharers in the Khata as well as proprietor in the path. Shabbir Ahmad, J who delivered the judgment for the Division Bench, observed: ". . I am clear in my mind that 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."

9. The facts of the case in Abdul Aziz v. Multan Electric Supply Company, relied upon by the petitioner's learned counsel are that the plaintiff filed a suit for cancellation of an agreement entered into between the parties, embodying the clause requiring the plaintiff to pay the company, for consumption of the energy at the rate of 0.5, annas per unit. He also prayed for declaration to the effect that the rate at which the plaintiff could be charged was 9 pies per unit. At the appellate stage, the plaintiff moved the Court for amendment of the plaint to the effect that he was entitled to pay only three pies per unit as per agreement. In the relief clause, it was already stated that the rate of payment should be 3 pies per unit and not 5 annas. The learned Additional District Judge refused the amendment as in his opinion it sought to introduce totally a different, new and inconsistent case. Kaikaus, J, held that "the amendment of the plaint is almost a right of the party when it relates to the cause of action on which the suit is based." The learned Judge further observed that:- "What better case could there be for an amendment than that the facts on which the plea is based have been duly mentioned in the plaint, that an issue on the point in dispute has been framed and evidence has been led and the point on which the amendment is asked for is the real point of controversy between the parties." On the facts of the case the Court further found that the amendment was wholly unnecessary. As regards tae other precedent, reported as A I R 1921 P C 50, cited by the petitioner's learned counsel, in that case the suit filed was for declaration that the plaintiffs were entitled to certain rights of pre emption against other defendants who were vendees of different shares. The possession of the properties in dispute, however, was not claimed by way of consequential relief. Subsequently, the plaintiffs applied for amendment of the plaint. In this respect, the observations made by the Judicial Commis sioner, N: W. F. P. reproduced hereunder, which were approved by the Judicial Committee, amply lay bare the distinguishing feature of that case, justifying amendment:- "However, defective the form of the suit may be, the plaintiff's object was to pre-empt the land; their cause of action was one and the same whether they sued for possession or not." It is, thus, to be seen that both the rulings relied upon by the petitioner's learned counsel, rest on facts which are widely different from that of the case in hand. In those cases, the plaints already embodied necessary facts and nothing new was desired to be added to the plaint through the amendment. So far as, the instant case is concerned, as observed above, the petitioner had made certain important concessions in the written statement. The permission to amend the plaint thus, would have nullified the effect of those admissions. In any case, the plea that the transaction did not amount to sale but was A merely retransfer of the land to the vendor would completely change the complexion of the defence. In this view of the matter, the concurrent decision given by the learned two Courts below, for disallowing the amendment does not appear to be suffering from any illegality.

10. Apart from the fact that the impugned order is not violative of any judicial principle, the objection relating to the maintainability of the writ petition is more fatal to the petitioner's case. It is the case of the respon dent that the impugned order does not suffer from any jurisdictional error and, therefore, it cannot be struck down in exercise of constitutional jurisdiction.

11. On the other hand, the learned counsel for the petitioner submitted that there was failure to exercise jurisdiction by the learned District Judge. The question, therefore, falling for consideration is as to whether there was error of jurisdiction or error in jurisdiction. In Yusaf Ali v. Muhammad Javaid Igbal Cheema (P L D 1975 Lah. 1339) a Division Bench of this Court, observed that:- "The existence of jurisdiction in a Court is made of three component parts, namely, its pecuniary jurisdiction, territorial jurisdiction with respect to the subject matter before it. The authority to decide a case makes up the jurisdiction. After the jurisdiction is once attracted, the decision of all other questions in the case will be only in exercise of that jurisdiction." It is not disputed that the learned District Judge was competent to hear the revision petition. In fact, the petitioner himself invoked his jurisdiction. Even if the learned District Judge, misconstrued the provisions of Order VI, rule 17 of the Civil Procedure Code, he merely erred in law and unless the error is manifest on the fact of the .record, the impugned order cannot be challenged on proceedings for issue of a direction in the nature of certiorari. It has neither been urged that the impugned order suffers from manifest error on the face of the record nor can it be argued that the said order displays such an illegality and is so palpably wrong that exercise of writ jurisdiction is justified. The following dictum laid down by the Supreme Court in Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139) also applies to this case "It is well settled that where a Court or a tribunal has jurisdiction it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law." The observations made in Raunaq Ali v. Chief Settlement Commissioner (P L D 1973 S C 236) are also to the same effect. There is thus a clear distinction between a tribunal which acts without jurisdiction and one which goes wrong while acting within its jurisdiction. The learned District Judge, was possessed of the necessary jurisdiction. The order passed by hire at the most may be wrong in law but mere passing of a wrong order cannot be termed as failure to exercise jurisdiction. In this view of the matter, it is not open to the petitioner to seek removal of the impugned order through invocation of writ jurisdiction.

12. For all these reasons this writ petition. is found to be without any merit and is, therefore dismissed with costs. Petition dismissed.