2016 PLP 1 (YLRN)

QALANDAR ALI KHAN, J:- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner, Manzoor Elahi, is seeking declaration to the effect that order of the learned Additional District Judge-III, Haripur dated 05.03.2011, whereby revision petition of respondent No.1, Muhammad Akram, was accepted, and order of the learned trial Court / Civil Judge-VI, Haripur, dated 08.01.2011 was set aside, and application of the petitioner plaintiff for correction of date of notice of Talb-i-Ishhad as 31.05.2010 instead of 29.05.2010 was dismissed.

2. In his suit for possession through pre-emption in respect of sale of the shop, the petitioner / plaintiff had mentioned the date of notice of Talb-i-Ishhad as 29.05.2010; and he, later on, moved application for correction of the said date as 31.05.2010 under section 151, C.P.C. through amendment, which was resisted by respondent No.1/defendant; but allowed by the learned trial Court. The revision petition of respondent No.1/defendant, however, succeeded, mainly, on the ground that omission to mention the date of issuance of notice of Talb-I-Ishhad was not curable either under section 151, (C.P.C.) "or by any sort of amendment as the parties cannot go beyond their pleadings and failing to mention essential particulars about a fact in pleadings would result in depriving that person to prove the same in evidence." The learned Additional District Judge, in support of his this conclusion, placed reliance on the case reported as 2011 CLC 139 (Peshawar), titled Liaqat Ali v. Abdul Wadood.

3. Arguments of Haji Ghulam Basit, Advocate, learned counsel for the petitioner and Syed Mehboob Shah, Advocate, learned counsel for respondent No.1 heard, and record perused.

4. The learned counsel for the petitioner argued that notice of Talb-i-Ishhad, drafted on 29.05.2010, was dispatched to respondent No.1/defendant on 31.05.2010, but in the plaint, instead of date of dispatch of notice of Talb-i-Ishhad, the date when the notice was drafted was mentioned, which was a clerical mistake and was rightly allowed to be corrected, in the light of judgments reported as PLD 2001 SC 518, PLD 2001 SC 2009 and also the recent judgment of the august apex Court reported as 2014 SCMR 852.

5. The learned counsel for respondent No.1, on the other hand, in addition to judgment of this Court reported as 2011 CLC 139, relied upon by the learned Additional District Judge in the impugned order, also referred to judgments reported as PLD 2009 Lahore 356, 2013 MLD 1427 (Peshawar), 2013 SCMR 23 and 2013 CLC 1033 (Lahore), and contended that omission to mention the requisite particulars of Talbs was fatal and that such an omission was not mere defect which could be cured through filing application for amendment of the plaint.

6. The impugned order of disallowing the proposed amendment to the petitioner / plaintiff emanates from the misperception that the petitioner had omitted to mention the requisite particulars of Talbs and was seeking to mention the requisite particulars through amendment in the plaint. The learned Additional District Judge, therefore, failed to appreciate the issue raised before him, which clearly related to correction of date of sending of notice of Talb-i-Ishhad as 31.05.2010 instead of date of drafting of the notice i.e. 29.05.2010. There was, as such, no omission which could prove fatal for suit of pre-emption by the petitioner/plaintiff in the light of judgment relied upon by the learned Additional District Judge and also judgments referred to by the learned counsel for respondent No.1 in support of his arguments.

7. Even otherwise, the prevailing view, in the light of judgment of a Larger Bench of the august Supreme Court of Pakistan, reported as 2014 SCMR 852, envisages that even omission to mention date of notice of Talb-i-Ishhad in the plaint would stand cured by annexing the copies of notices of Talb-i-Ishhad along with postal/acknowledgment receipts. Needless to say that not only notice of Talb-i-Ishhad shows the date of its drafting as 29.05.2010 but the postal receipt also clearly shows date of dispatch as 31.05.2010. The objection of respondent No.1 to the proposed amendment could have been considered valid and sustainable had there been an attempt on the part of the petitioner/plaintiff to introduce fresh and different dates or if the respondent could show that a right had accrued to him due to the clerical mistake, which could not be taken away from him through amendment in the plaint.

8. In the absence of such an eventuality, the learned Additional District Judge committed a blatant legal error to disallow the proposed amendment by acceptance of the revision petition. The impugned order dated 05.03.2011 is, therefore, not sustainable and ought to be set at naught. Consequently, on the acceptance of the writ petition, the impugned judgment/order of learned Additional District Judge-III, Haripur, dated 05.03.2011 is set aside, with the result, the order dated 08.01.2011 of the learned trial Court/Civil Judge-VI, Haripur, is restored, and application for the requisite correction in the plaint is accepted and the date of dispatch of notice is corrected as 31.05.2010 instead of 29.05.2010. ZC/401/P Petition accepted.