2016 PLP 100 (CLCN)

ABDUL LATIF KHAN, J.

Through the instant revision petition, the petitioners have called in question the judgment and decree dated 22.11.2012 passed by the learned Additional District Judge. Paharpur, D.I. Khan vide which their appeal against the judgment/order dated 24.02.2012 of learned Civil Judge, Paharpur D.I. Khan, was dismissed.

2. Brief facts giving rise to the instant revision petition are that the petitioners filed a suit for possession through pre-emption against the respondents regarding land measuring 160 kanals, fully detailed in the heading of plaint. The suit was contested by the respondents by filing written statement. The learned trial Court framed issues arising out of the pleadings of the parties. The evidence of the petitioners/plaintiffs was recorded and closed and the case was listed for evidence of the respondents/defendants. On 06.10.2011 the respondents filed an application for rejection of plaint under Order VII, Rule 11, C.P.C. and on 11.02.2012, the petitioners submitted an application for amendment of their plaint. Both the applications were contested and after hearing arguments of learned counsel for thd parties, the learned Civil Judge, Paharpur vide order dated 24.02.2012, dismissed the application of petitioners for amendment of their plaint whereas on acceptance of application of respondents rejected the plaint under Order VII, Rule 11, C.P.C.

3. Aggrieved of the order dated 24.02.2012 the petitioners filed an appeal which was dismissed by learned Additional District Judge, Paharpur vide judgment and decree dated 22.11.2012, hence the instant revision petition.

4. Learned counsel for the petitioners contended that the Court can at any time allow amendment in pleadings to any party to the suit, in such manner and in such terms as may be just for determining real controversy between the parties, but the Courts below have acted illegally to disallow the amendment against the norms of justice. It was argued that criteria laid down in the provisions of Order VII, Rule 11, C.P.C. is totally different and the Courts below have wrongly applied the same to the instant case. It was added that Order VII, Rule 11, C.P.C. can only be applied at the time of presentation of plaint and cannot be applied at the stage after the framing of issues. It was argued that evidence of plaintiffs has been closed and at this stage the provisions of Order VII, Rule 11, C.P.C. have been applied illegally and without any justification. It was argued that case law referred has been wrongly interpreted as only date of issuance of notice Talb-i-Ishhad is not mentioned in the plaint of instant case whereas the judgments speak otherwise. It was argued that list of documents annexed with the plaint contains the date of issuance of notice talb-e-ishhad and notice talb-e-ishhad has been exhibited in the statement of PW-4 without any objection, which clearly bears the date of issuance.

5. As against that, the learned counsel for the respondents contended that application for amendment of plaint was moved by the plaintiffs which has been disallowed and application under Order VII, Rule 11, C.P.C. moved by the respondents has been accepted through impugned order. It was argued that in the light of various precedents of apex Court and High Courts, non-mentioning of date of issuance of notice talb-e-ishhad in the plaint is fatal to the case and no amendment can be allowed to cure the deficiency and provisions of Order VII, Rule 11, C.P.C. have been made applicable to the instant case properly.

6. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their able assistance.

7. The perusal of plaint reveals that the plaintiffs failed to mention the date of issuance of notice talb-e-Ishhad in it. Application moved seeking amendment in the plaint to fill the lacuna and the respondents moved application for rejection of plaint, on this deficiency in the plaint.

8. Order VI, Rule 17, C.P.C. deals with amendment of pleadings, which reads as under:- "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 questions in controversy between the parties." A look of above provision envisages that either party at any stage of the proceedings can be allowed to alter or amend the pleadings in such manner and on such terms necessary for determination of real controversy but it will not be allowed if work injustice to other side and where a right has been accrued in favour of other side and change the entire complexion of suit.

9. In pre-emption cases, furnishing of date, time and place of talb-e-muwathibat and date of issuance of notice talb-e-ishhad in the plaint is necessary to establish the performance of talbs. Omission to mention any of the ingredients of talbs in the plaint would be fatal and cannot be allowed to amend the plaint afterwards, as it goes out of the mandate of law relating to amendment of pleadings.

10. As far as provisions of Order VII, Rule 11 are concerned, it relate to rejection of plaint. The same are reproduced below for ready reference:- "Rejection of plaint-The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued and the plaintiff on being required by the court to correct the valuation within a time to be fixed by the Court fails to do so: (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law." A glance of the above provisions provides a mechanism where the plaint does not disclose a cause of action and from the statement in the plaint, the suit appears to be barred by any law. The date, time, place and date of issuance of notice talb-e-ishhad have to be furnished by the plaintiffs in order to establish the performance of talbs and in case of failure, no evidence can be produced to prove the right of pre-emption by departing from the pleadings and departure, if so made from the pleadings which is not permissible under the law, would not be considered at all. If this test is applied to the instant case. the date of issuance of notice talb-e-ishhad does not find mention in the plaint and if the plaintiffs are allowed to produce evidence, it will amount to abuse of process of Court. The object of Order VII, Rule 11, C.P.C. in real sense is to reject the plaint on the basis of averments made in it, taking the contents of the plaint on its face value, without considering the plea of parties. The lacuna of non-mentioning the date of issuance of notice Talb-e-Ishhad is an omission, fatal to the case and if the plaintiffs are allowed to produce 'the evidence in its support, the vacuum would remain there and cannot be filled by producing evidence in this regard. No error has been committed by the Courts below by rejecting the plaint of the plaintiffs and declining the prayer of amendment in the plaint.

11. For the reasons mentioned above, the instant petition being bereft of any merit is hereby dismissed. No order as to costs. SA/267/P Revision dismissed.