P L D 1972 Azad J & K 22 (PLP)

Learned counsel for the petitioner argues that the suit had been instituted against a wrong person and that the suit against the vendee‑petitioner should be taken to have been instituted on 27‑2‑71 when the plaintiff was allowed to rectify the mistake in the parentage of the vendee. Limitation for a pre -emption suit had expire, long before this ewe. Therefore, an amendment which took away a legal right that had accrued to the vendee by the lapse of time should not have been allowed. I do not agree with the learned counsel that the suit had been instituted against a wrong person as the vendee. The report on the summons issued for 23‑2‑70 is that nobody by the name of Muhammad Sharif son of Muhammad Ali is residing in the village which means that Muhammad Sharif son of Muhammad Ali did not exist, therefore, it cannot be said that the suit was instituted against a wrong person. If the suit had been instituted against a wrong person and the decree had been passed against a wrong person the defendant should have kept quiet; why did he rush to the Court to have the ex parte decree set aside. The defendant writes in his application for setting aside the ex parte decree that he has learnt from the decree‑holder that a decree has been passed against him (defendant‑applicant) which means that the plaintiff had not instituted his suit against a wrong person but he had instituted his suit against the petitioner and only a part of the name of the father of the defendant‑vendee was wrongly entered in the plaint and as sworn in his affidavit it was through a mistake of the Petition‑writer. Amendments that put‑forth a new case or a new relief or change the cause of action or take away a legal right that had accrued to a party by the lapse of time should not be allowed. Here there were no such amendments sought as would change the nature of the suit or the cause of action. The plaintiff, in fact, instituted his suit against the real vendee as is clear from the application made by the vendee for setting aside the ex parte decree wherein he writes that he was informed by the decree-holder that he (plaintiff) had obtained a decree against him (defendant‑petitioner). The suit was with regard to the same land as had been purchased by the petitioner‑vendee. The name of the vendee was correctly given. Only a part of the name of his father was wrongly entered. The real name was Muhammad Haleem but it was written as Muhammad Ali and this can be called a clerical mistake. A copy of the sale‑deed was filed alongwith the plaint wherein the description of the vendee was correctly given. Order VI, rule 17, C. P. C. reads:‑ "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and ell such amendment shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." The crux of the rule is that all amendments as are necessary for the purpose of determining the real questions in controversy between the parties shall be made. The real question in controversy between the parties is whether the plaintiff had a right of pre‑emp tion or whether the price was fixed in good faith or paid. Abdul Aziz, C. J., in P L D 1 950 B J 77 laid down that:‑ "The wordings of Order VI, rule 17, show that as a general rule leave to amend will be granted so as to enable the real question in issue between the parties to be raised on the plea Sings, where the amendment will occasion no injury to the opposite‑party, except such as can be sufficiently compensated for by costs or other terms to be imposed by the order." To the same effect is A I R 1933 Born. 644 and 4 I C

726. In 10 C D 393, 396 Bramwell, L. J. had stated:‑ "I have had much to do in Chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise. It does not matter that the original omission arose from negligence or carelessness. However negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs." Practically the same view was adopted by Bowen, L. J. in 26 C D 700 and 711 in the following terms:‑ "I have found in my experience that there is one panacea which heals every sore in litigation, and that is costs. It is immaterial whether the error sought to be amended was acci dental or not. There is no rule limiting amendment to acci dental errors." The facts of Baghdad‑ul‑Jadid case were that some agricultural land belonging to Gobinda Ram was sold by him to Haji Ahmed Bakhsh. The mutation of the sale was sanctioned on 21st of December 1943. A suit for pre‑emption was brought by Haji Rahim Bakhsh on 21st of June 1944. Various pleas were raised by the vendee and the issues on the pleadings of the parties were framed. The evidence proceeded and before it was concluded on the part of the plaintiff the defendant‑vendee applied for the amendment of the written statement by adding a plea to the effect that he was in possession of the property before the 9th of November 1942. This application was rejected by the learned Senior Sub‑Judge on the ground that it was belated and changed the nature of the suit but the learned Chief Justice held that:‑ "It is no doubt true that the petitioner had omitted to raise this plea in his original written statement which he has now advanced to amend his written statement, but from what has been argued before me I treat it as an important plea for the decision of the case of the defendant. In these circumstances tithe amendment should have been allowed." Learned counsel for the plaintiff‑respondent cited P L D 1956 Lah. 474 wherein it was held by Kaikaus, J. that:‑ "In correct reproduction in plaint of the Khasra numbers, which were the subject of the suit, was a defect of a very formal nature, while correct Khasra numbers had been set out in the deed of gift, the basis of the suit, and while the Khata numbers were correctly mentioned in the plaint itself. Such a defect should be allowed to be corrected in Court without an adjournment." This case, though not on all fours with the case before me, has a parallel. In the case before me the name of the father of the vendee was incorrectly given whereas in the Lahore ease cited above the Khasra numbers were incorrectly given. It could have been equally argued in the Lahore case that the suit had been instituted with regard to a wrong land and that amendment should not be allowed after the lapse of the limitation but this is a formal matter and a bona fide clerical error and I hold accordingly. As a result of the above discussion the revision petition is dismissed. Costs shall abide the event. Petition dismissed.