2017 PLP 2079 (MLD)

MOHAMMAD IBRAHIM KHAN, J.

Fazal Subhan and Ali Rahman have joined hands by introducing their suit for obtaining possession through exercising their right of pre-emption pertaining to the land bearing Khatta/Khatooni No. 579/871, Khasra Nos. 1, 2,3,5 & 6 situated within the local limits of Mauza Kanju Tehsil Kabal District Swat. The sale consideration is not more than Rs. 100,000/- according to the market value, but in order to deprive them from the right of pre-emption extended to them an inflated amount has been entered. The plaintiffs who have now emerged as Petitioners are possessing all peculiar rights to pre-empt the transaction by Afzal Khan in favour of Chamnay maintaining their relation of seller and buyer inter se.

2. This claim was hotly resisted by filing of the joint written statement by both the seller and the buyer. The learned Trial Court on the basis of divergent pleading of the parties framed the following issues: ISSUES:

1. Whether Plaintiffs have got a cause of action ?

2. Whether Plaintiffs are estopped to sue?

3. Whether the suit is incompetent in its present form?

4. Whether the suit is within time?

5. Whether this Court has got the jurisdiction to entertain the present suit?

6. Whether the suit is bad for mis-joinder and non -joinder of the parties?

7. Whether the suit has been properly valued for the purposes of court-fee and jurisdiction?

8. Whether Plaintiffs have superior right of pre-emption?

9. Whether Plaintiffs have performed the talbs according to law?

10. Whether the market value of the suit property is Rs. One lac or Rs. Two lacs?

11. Whether Plaintiffs are entitled to compensatory costs?

12. Whether Defendants are entitled to compensatory costs?

13. Whether Plaintiffs are entitled to the decree as prayed for?

14. Relief.

3. Next off, the parties on filing of the list of witnesses, examined their respective witnesses, just when the evidence was closed it was thought of to seek an amendment by favorable agreement dated 06.02.2012 on behalf of Bakht Zameen Khan in favour of his sons Rahmat Hussain, Iqbal Hussain, Fazal Subhan and Mudasar Khan. This application was replicated. In the meanwhile, the Respondents (hereinbefore called as Defendants) also took an advantage by filing an application to submit fresh affidavits of their witnesses, which application too was replicated. The learned Civil Court was pleased to dispose of both these applications by way of the order dated 02.03.2016. The application for seeking an amendment in the plaint was held to have been filed with the intention to cover loop holes and as presented at the belated stage, therefore it was considered to be out of the scope of merits, hence was dismissed. Whereas the application for submission of the affidavits for fresh reasons as mentioned in the impugned order was accepted on the cost of Rs.1,000/-.

4. The grounds taken in the appeal of the Petitioners (hereinbefore called as Appellants before the Court of learned Additional District Judge/Izafi Zila Qazi Swat at Kabal) would reveal that the order of learned Civil Court was not acceptable on two counts i.e. the application for amendment was dismissed and the other part application for allowing the affidavits on file as part of the evidence. Hence by the findings in the judgment in Civil Miscellaneous Appeal No. 7/14 of the year 2016 the verdict of the learned Civil Court was maintained.

5. Having heard arguments of learned counsel for the Petitioners and learned counsel for the Respondents, record with their valuable assistance gone through.

6. Here it is to mention that this Revision regarding the part dismissal through the impugned orders and only looking to be set aside to the extent of allowing the Petitioners to amend their plaint by insertion of an added prayer under the same cause of action to refer to the agreement dated 06.02.2012. The amendment of pleadings as envisaged under Order VI, Rule 17 of the Civil Procedure Code need to be referred here:-- "

17. Amendment of pleadings

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 all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. "

7. It is now in lucid words understood that any 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 so as to resolve the real question in the controversy. The amendment can even be allowed by the learned Civil Court where trial is in progress, if otherwise not allowed even at second appellate Court a prayer can be asked for and in a Revision before the Revisional Court. So much so, when an appeal before the Hon'ble apex Court is preferred it may be allowed for the consideration of an amendment. Such amendment is utter consideration without any alteration of the character of the suit. According to Order VII Rule 7 of the Civil Procedure Code whenever a plaint is presented for obtaining any relief there must be a specific prayer. There is however put a bar on amendment if the amendment is for substitution sitting new cause of action for the original cause of action. Any legal plea in the proposed amendment must go to the root of the case. Mere introduction of fresh matter which does not alter nature of the suit the Court must oblige parties seeking it and shall not be refused in cases where the parties seeking amendment has acted in good faith and smell of mala fide is not the intention behind such amendment. Amendments may be sympathetically considered even if counsel drafting the case has leftover introducing of a matter which must go to the root cause of the case.

8. In this case, as it seems that once Petitioner No. 1 (hereinbefore called as Plaintiff No. 1) Fazal Subhan in the lifetime of his father when the revenue record is silent of any alienation in his favour has abruptly in compliance with making of 'Talbs' best thought off to exercise his right of pre-emption when evidence has been led by him to believe that he has step into the shoes of his father and has gained all his lawful rights by becoming an ostensible owner is having cause of action.

9. Yes, the amendment as proposed will not change nature of the suit and cause of action shall remain the same. The character of the suit will also not change. The law permits the amendment by insertion of the reference to the agreement dated 06.02.2012. By allowing such amendment in the plaint and after the other party is also reasonably allowed to raise an objection and allowed defence. A very specific issue is to be framed regarding declaration of the status of the agreement dated 06.02.2012 as to whether it pertains any type of alienation or transferring the rights by Bakht Zameen Khan in favour of his son Fazal Subhan whether on account of sale or by way of gift, so as to introducing of this agreement the Plaintiff No. 1 Fazal Subhan has cause of action.

10. In view of the above, this Revision Petition is allowed in the above terms by setting aside the impugned judgments/orders with no order as to costs. MQ/154/P Revision allowed.