1988 PLP 333 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought from judgment, dated 13-5-1986 of the Lahore High Court; whereby a Civil Revision filed by the respondents (defendants) vendees in a pre-emption suit, was allowed, and while setting aside the appellate judgment. The judgment of the dismissal of the petitioner (pre emptor's) suit passed by the trial Court, was restored.

2. The petitioner's plea regarding superior right of pre-emption in the plaint was that he was collateral of the vendor and also had land in the estate while the defendant-vendees had no such qualification. During the trial the petitioner realised that he might not be able to substantiate these pleas, he therefore, sought amendment of the plaint to include an additional ground namely, that he was co-sharer in the same Khata from which the land in dispute was sold. The application for amendment was disallowed. A revision filed against the order of refusal was dismissed.

3. During the trial the petitioner failed to substantiate the two pleas raised in the plaint. He, as mentioned earlier not having been permitted to raise the third one regarding co-sharership, his suit was dismissed. On his appeal the learned District Judge reversed the order of the learned trial Court on a finding that the plaintiff having taken the plea of superior right of pre-emption in the plaint could support it by any available ground and that there was no need for his having sought an amendment of the plaint. Thus, having overcome the technical difficulty, he found from the evidence that the petitioner was co-sharer of the vendor; accordingly his suit was decreed.

4. On respondents' revision petition in the High Court a learned Single Judge disagreed with the learned appellate Court on the legal point and held that the petitioner's revision regarding amendment having been dismissed by a learned District Judge earlier, a Court of coordinate jurisdiction could not have held otherwise. It was also found as a fact by the High Court that the petitioner had failed to prove that he was a co-sharer of the vendor in the same Khata. Accordingly respondents' revision were allowed and the trial Court decree and judgment was restored with the result that the petitioner's suit stood dismissed. He has, therefore, now sought leave to appeal.

5. Learned counsel drew our attention to a fact which was not noticed by the High Court, namely that the petitioner had while filing the appeal in the second round also submitted as application for amendment of the plaint before the appellate Court. This was also noticed in the appellate judgment. He, therefore argued that the previous refusal of the trial Court to permit amendment of the plaint even if affirmed by a revisional order, was no bar to the appellate Court permitting the amendment after the conclusion of the trial. It has also been argued that when a plea of superior right of pre-emption is specifically taken in the plaint, it was not necessary, as held by the appellate Court, to give the details of the various qualifications of the pre-emptor in the plaint. Therefore, the amendment was not necessary.

6. Even if there is some force in the arguments raised by the learned counsel for the petitioner, it would not be of any help to him as the learned Judge in the High Court had also given a finding against the petitioner that a proper reading of the record revealed that he was not a co-sharer of the vendor in the relevant Khata. If according to the revenue record produced during the trial exclusively belonged to the vendor. In this view of the matter we find no force in this petition and the same is dismissed. S. Q./M-277/S Petition dismissed.