1995 CLC 717 (PLP)

(e) Punjab Pre‑emotion Act ( I of 1913)‑‑‑ ‑‑‑‑S.15‑‑‑Civil Procedure Code (V of 1908), S. 115‑‑‑Trial Court had correctly exercised jurisdiction in al owing amendment of plaint‑‑‑Appellate Court's finding in reversing such decision and dismissing suit on ground of partial pre emption was not warranted‑‑‑Appellate Court's decision wherein it had dismissed plaintiff's suit was set aside and that of Trial Court decreeing the suit was restored. Mian Shamas‑ul‑Haq Ansari for Petitioner. Muhammad Jahangir Arshad for Respondents. J Dates of hearing; 9th, 16th and 31st October, 1994. On 23‑1‑1971, the petitioner herein filed a suit for possession through pre‑emotion of a piece of agricultural land measuring 77 Kanals and 10 Marlas situated in Village Chak, Tehsil Shujabad, District Multan, on the ground of being owner in the estate. The suit land was not fully described in the plaint but a note was added at the end of the plaint which stated:‑‑ "That description of the suit land shall be corrected after receipt of the copy of the registered sale‑deed. The detail given in the plaint is based on presumption as copy of the sale‑deed has not yet been received." The suit was contested which gave rise to various issues one of which was regarding partial pre‑emption.

2. While the suit was pending, on 3‑2‑1971, an application under Order VI, Rule 17 for amendment in the plaint so as to incorporate the description of property in accordance a with the sale‑deed, was made. This application was dismissed on 14‑4‑

197. Civil Revision No. 423/71 filed in the High Court which was dismissed in limine on 18‑5‑1971. It seems that second application for this very purpose was al‑‑o rejected on 30‑7‑1971. On 18‑4‑1972 a review petition was filed in the trial court seeking recall of the order dated 14‑4‑1971 and 30‑7‑1971 and praying four amendment of the plaint so as to incorporate the detail of the land sold in f‑ 3vour of the vendee/defendants. The trial Court on 14‑6‑1972 allowed the review application and as the evidence of the parties had been recorded on all the issues, decreed the suit of the present petitioner. Vendee/defendants filed an appeal in the District Court which was allowed on 6‑I‑1975 by an Additional District Judge. The learned Additional District Judge reversed the findings under Issue No. 2 (partial pre‑emption) and dismissed the suit holding that the amend meat of plaint by allowing review application was illegal and the amendment of plaint gas it stood, did not describe the land fully and as such the suit suffered from the vice of partial pre‑emption. This revision is directed against the appellate decree and seeks restoration of the one passed by the trial Court.

3. Fairly lengthy arguments were addressed under Issue No.

2. In fact the two learned counsel exclusively confined themselves to Issue No.

2. The precise argument of the learned counsel for the petitioner is that misdescription or omission to properly and adequately describe the property in the plaint can always be corrected and further that in this particular case, the plaintiff had expressly averred that the sale was made through registered document No. 56 dated 23‑1‑1970 and also put a note that the description of the property will be given in detail after copy of the sale‑deed is delivered. It was asserted that in view of this reservation of the right to detail the suit. Property, the plaintiff petitioner ought to have been permitted to incorporate the detail in the plaint and the refusal by the trial Court initially to do so being contrary to law, was rightly recalled by way of order passed in review on i4‑6‑1972. 1t is also contended that there is no room for technicalities in applying the procedural law and that the rules of procedure exist for furthering the ends of justice and not for retarding the same. Number of judgments including Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345); Khurshid Ali and others v. Shah Nazar (PLD 1992 SC 822); Ahsan Kausar and others v. Ahmad Zaman Khan (1986 SCMR 1799) have been cited in support of the above sub-missions.

4. Learned counsel appearing for the respondents has of course supported the impugned order and maintained that after the dismissal of amendment application on 14‑4‑1971 and dismissal of the civil revision by the High Court in limine on 18‑5‑1971, the trial Court could not legally permit the amendment by granting the review petition on 14‑6‑1972. The learned counsel has relied on Ch. Zulfiqar Ali v. Mian Akhtar Islam and another (PLD 1967 SC 418) and submitted that the suit has been rightly dismissed by the appellate Court. It is also contended that the review application was barred by time and could not have been allowed without condonation of the delay.

5. The fate of the case hinges on whether to strictly apply the technicalities of the procedural law or to take liberal view of the matter and to try to do substantive justice. It is accepted that the petitioner/plaintiff would succeed but for the absence of description of the property in the plaint. The question, though difficult but has not been entirely unanswered and some precedent cases are available to provide guidelines for deciding the case.

6. At one stage the Courts described the right of pre‑emption as a weak right. In some of the cases the right was described as piratical and, therefore, the view that the pre‑emptor should not be granted any indulgence and the law should be strictly construed and applied against him. This view got diluted gradually and in the latest pronouncements the use of words such as weak and piratical has been disapproved because the right of pre‑emption is a right provided under the Islamic Law as well.

7. The concept of partial pre‑emption has arisen from the fact that the pre‑emptor has to step into the shoes of the vendee and he has to either take the bargain as a whole or to reject the same. In other words, a pre‑emptor cannot pick and choose. Keeping in view this philosophy, cases have arisen where on account of the failure of the plaintiff/pre‑emptor to exactly describe the property, or on account of his omission to mention some Khasra Numbers, the pre‑emptor was penalized and his suit dismissed on the basis that this amounted to picking and choosing which was not permissible. In my view the penalty of partial pre‑emption should be confined to cases of either deliberate omission or serious carelessness and negligence in ascertaining and describing the property and in giving its details. The hammer of partial pre emption ought not to fall on the pre‑emptor who fails to describe the property inadequately on account of inadvertence, clerical/typing mistakes or due to such mistakes and omissions which are inherent in human nature. In other words the scope of the applicability of the doctrine of partial pre‑emption must be restrictive.

8. The brief survey of the case‑law also tends to confirm the above view. In number of cases the Supreme Court has taken the liberal view in granting permission for amendment under Order VI, Rule 17, C.P.C. In Ahsan Kausar's case (supra) an amendment allowed without hearing opposite party was not set aside because the amendment did not change substance of the case. It was further held therein that rules of procedure are intended to secure proper administration of justice. In United Bank of India Ltd. v. Azirannessa Bewa 8 alias Azizannessa Bewa (PLD 1965 SC 274), it was held that the Court can and is obliged to find exact description of property with reference to other evidence/material on record. In other words the Supreme Court ruled that in cases of ambiguity in description a duty was upon the High Court to reach a definite conclusion as to the identity of property in suit. In Bahadur Shah and others v. Sharaf and others (PLD 1973 Lah. 513), the learned Single Bench of this Court held that late presentation of application for amendment was not sufficient for dismissing it and in the pre‑emption suit in that case the Court allowed the amendment so as to include the one Khasra number missing in the plaint. In Amir Abdullah Khan v. Col. Muhammad Attaullah Khan and others (PLD 1990 SC 972), the Court ruled in pre‑emption suit that incorrect particulars can always be removed and corrected by reference to the deed of sale since the description of the property in the deed is deemed to have teen "incorporated" in the plaint. This view was further enlarged in Manzoor Hussain etc. v. Malik Karam Khan etc. (1991 SCMR 2451) where the Supreme Court went to the extent of holding that even the Executing Court can permit correction of decree to the extent of bringing the same in conformity with the title deed. Earlier, in Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345) the Court held that the words "At any stage of proceedings" appearing in Order VI; rule 17, C.P.C. meant even upto the stage of Supreme Court. In other words the scope of amendment was enlarged so that the same could be allowed not only during the trial proceedings but during the appellate and further revisional proceedings and even upto Supreme Court if the case is taken there. Another important case to be referred to is the one reported as Ghulam Nabi v. Sardar Nazir Ahmad (1985 SCMR 824), which was a pre‑emption suit and while interpreting the provision of Order VI, rule 17 and section 153, C.P.C. the Supreme Court ruled that correction of description can be allowed even after the decree, that no right accrues to the opposite party on account of delay in correction of description and that no question of limitation arises.

9. Applying the above principles to the facts of the present case, it is very clear that in describing the suit property the petitioner/plaintiff stated that he was handicapped on account of non‑availability of the sale‑deed and that as soon as the copy of the deed is made available he would correct the description and give the necessary details. Unfortunately and perhaps in keeping with the strict view then prevailing, the amendment was disallowed by the trial Court on 14‑4‑1971. Civil Revision No. 371/91 directed against the same was dismissed by the High Court as withdrawn on 29‑4‑1971. A second Revision No. 423/71 was dismissed on 18‑5‑1971 on the ground that no second revision lies as the earlier one was dismissed as withdrawn. It was only later on that the review petition was allowed and the plaint was amended so as to incorporate the detail of property as given in the sale‑deed. It is very clear that the plaintiff‑petitioner was all along exhibiting his intention to take that bargain which was reflected in the sale‑deed. He so stated in the plaint and in the repeated applications for amendment and even in the revision petition. The doctrine of incorporation of description laid down in Amir Abdullah's case (supra) squarely applies to the facts and circumstances of this case. The permission to amend the plaint by allowing the review petition is also justified in terms of the dicta laid down in the cases of Ghulam Nabi (supra) and Manzoor Hussain (supra). Had the trial C Court taken the same view of the law as was declared in United Bank of India Ltd. (supra) at the time when it was earlier dealing with the question of amendment in the year 1971, perhaps it could have come to a different conclusion. I am very clear in my mind that the plaintiff/petitioner in this case was not seeking partial pre‑emption and in the circumstances his suit cannot be killed on this ground. He was interested in taking the same bargain as a whole. He is not picking and choosing. Therefore, the benefit of the law as laid in the reported judgments noted above has to be extended to the plaintiff/petitioner.

10. The argument of the learned counsel for the respondent that the review petition was barred by time and without express condonation the trial Court could not have allowed the same, has to be rejected in view of the legal position emerging as a result of the survey of the above case‑law, particularly the one contained in Ghulam Nabi v. Sardar Nazir Ahmad (1985 SCMR 824) which states that no right accrues to the opposite party and no question of limitation arises. The further submission that in view of the rejection of revision by the High Court against the order disallowing amendment, the review application was incompetent equally does not hold the water. As noted, such an amendment (for incorporating description) can be allowed at any time and at any stage and in any case, the revision was dismissed as withdrawn and there is no discussion on the merits of the controversy. The finding of the lower appellate Court under Issue No. 2 is reversed and it is held that the petitioner's suit does not suffer from the defect I of partial pre‑emption. This revision is allowed. The decree passed by the trial Court in favour of the plaintiff/petitioner is restored. The plaintiff‑ petitioner is given the time upto 31st January, 1995, to deposit the pre emption money minus 1/5th of the sale price (unless. the same has already been deposited) failing which the suit shall stand dismissed. As difficult question of law was involved, the parties are left to bear their own costs. A.A./C‑561/L Revision accepted,