1986 PLP 1488 (SCMR)

‑‑‑O. VI, R. 17‑‑Punjab Pre‑emption Act (I of 1913), S. 15‑‑Amendment of plaint‑‑Partial pre‑emption‑ ‑Pleading of party making it manifestly clear that suit covered whole of area mentioned in mutation‑‑No sooner omission of portion of land brought to notice of appellant /plaintiff same was accepted as a bona fide mistake and in order to put record straight an application under O.VF, R.17 read with S.151, Civil Procedure Code, was immediately moved‑‑Omission to incorporate a portion of land being result of bona fide mistake, Trial Court, held, was justified in allowing amendment in plaint. Wazir Muhammad v. Abdul Aziz 1982 S C M R 189 and Sharif v. Muhammad Amir 1985 S C M R 1214 rel. Malik Muhammad Nawaz, Advocate Supreme Court instructed by Tanveer Ahmad, Advocate‑on‑Record (absent) for Appellants. Ali Imam Naqvi, Advocate‑on‑Record (absent) for Respondents. Date of hearing: 11th June, 1986. ALI HUSSAIN QAZILBASH, J.‑‑This appeal is from the judgment of the LahMuhammad Haleem, C.J., Muhammad Afzal Zullah, Shafiur Rahman, Ali Hussain Qazilbash and Mian Burhanuddin Khan, Jore High Court, dated 14‑6‑1980, whereby the vendees/ respondents' Civil Revision was allowed and the permission granted to the appellants by the learned Senior Civil Judge, Sahiwal, vide his order, dated 15‑2‑1978, amending their plaint was recalled.

2. The facts, in brief, are that agricultural land measuring 173 Kanals 4 Marlas situate in Chak No. 87/6‑R, Tehsil and District Sahiwal, comprising khatas Nos. 15 and 16 was purchased by Muhammad Anwar and others, now respondents, for a consideration of Rs.1,72,000. vide sale Mutation No. 154 attested on 19‑8‑1974. The sale was pre‑empted by the appellants and on 2‑9‑1975 the present suit was filed. This was contested by the respondents by filing written statement wherein besides others a preliminary objection was raised asserting that the suit had been filed pre‑empting 172 Kanals 19 Marlas instead of land measuring 173 Kanals 4 Marlas, therefore, it must fail because of partial pre‑emption. This was resisted by the appellants who submitted a replication on 15‑11‑1977 and their case was that the suit was for pre‑empting the entire land sold through Mutation No. 154 and that the position had been made clear in para. 2 of their plaint. It was further maintained that omission to incorporate 5 Marlas was as a result of bona fide mistake. Simultaneously, by way of abundant caution, the appellants on the same day, i.e. 15‑11‑1977, submitted an application under Order VI, Rule 17, read with section 151, C.P.C. for permission to amend their plaint by adding 5 Marlas of the left out land. This application was hotly contested but ultimately the Senior Civil Judge found that the omission of 5 Marlas was not material and thus allowed the application for amendment, vide his order, dated 15‑2‑1978. This was made a subject‑matter of revision before the High Court by the respondents which was allowed by a learned Single Judge, vide his order, dated 14‑6‑1980 holding that the omission of 5 Marlas of Khata No. 16 Khatauni No. 234 was undoubtedly deliberate and appeared to have been caused on account of sheer negligence on the part of the appellants.

3. Leave was granted to consider whether in view of the pleadings and the sale Mutation No. 154 the omission occasioned in the case was a mere incident or deliberate and negligent.

4. After hearing learned counsel for the appellants and perusal of the record we have come to the conclusion that the learned Judge was wrong in holding that the omission on the part of the appellants to incorporate the 5 Marlas of left out land was deliberate. The perusal of Mutation No. 154 shows that the sale pertaining to land measuring 172 Kanals 19 Marlas in Khata Nos. 15/233 to 277 and 1/6th in Khata No. 16/232 measuring 5 Marlas, totalling 173 Kanals 4 Marlas, for a consideration of Rs.1,72,000 was sanctioned on 19‑8‑1974. The perusal of the pleadings makes it manifestly clear that the suit covered the whole of the area mentioned in the mutation. True that in the plaint there is an omission of 5 Marlas but no sooner it was brought to the notice of the appellants, the same was accepted as a bona fide mistake and in order to put the record straight an application under Order VI, Rule 17, read with section 151, C.P.C. was immediately moved. Since the plaint and the replication clearly indicated the real intention of the appellants, the omission to incorporate 5 Marlas being as a result of bona fide mistake, the learned trial Court was. therefore, justified in allowing the amendment. Reliance was rightly placed by the learned counsel for the appellants on Wazir Muhammad v. Abdul Aziz 1982 SCMR 189 and Sharif v Muhammad Amir 1985 S C M R 1214. As a result the appeal is accepted, the judgment of the High Court, dated 14‑6‑1980 is set aside and that of the learned Senior Civil Judge, I dated 15‑2‑1978 is restored, with no order as to costs. M . Y . H . Appeal accepted.