' This judgment will dispose of Civil Revisions Nos, 204, 205 and 206, all of 1979, as these have arisen out of suits which were filed to pre-empt the transaction of sale that took place vide one and the same mutation and the suits had also been consolidated for trial.
2. The respondents-plaintiffs, Mst. Sardar Begum, Muhammad Shafiq Khan and Maqbool Ahmad Khan filed suits for pre-empting sale of land made by one Ajmal Ali Khan. Vide Mutation No, 523 sanctioned on 5-11-1973. The civil suits out of which Civil Revisions Nos, 204 and 206 have arisen were filed on 4-11-1974, whilst the suit out of which Civil Revision No, 205 has arisen was instituted on 31-10-1974. Written statements in all these suits were filed by the present petitioner on 17-1-1976. On 7-12-1977, the suits were consolidated and issues framed. The respondents-plaintiffs produced only documentary evidence in affirmative and closed the same on 17-4-1978 when the case was adjourned for evidence of the petitioner-defendant to 17-7-1978. On 17-7-1978 due to non- availability of the order sheet the case was adjourned. It was on this date, i. e. 17-7-1978 that the petitioner-defendant filed an application under Order VI, rule 17, C. P. C. Seeking to amend the written statement so as to incorporate the plea that the suit had been filed beyond the period of limitation.
3. The application was resisted by the respondents-plaintiffs, inter alia, on the grounds that the suit had been filed- within limitation ; that the application had been filed belatedly when the respondents-plaintiffs had closed their evidence and the case was adjourned for evidence of the petitioner-defendant on payment of costs ; and that the application was intended only to delay the proceedings.
4. The learned Senior Civil Judge, Sheikhupura, seized of the matter, by his order dated 6-1-1979, dismissed the application on the ground that it was an afterthought only and the objection being on a point of fact which was in the knowledge of the petitioner should have been raised in the written statement itself.
5. Aggrieved by the impugned order the petitioner has come up in revision to this Court.
6. The learned counsel for the petitioner contended : ' firstly, that the finding of the learned trial Court that the application was filed at a belated stage was factually incorrect; ' secondly, that even a belated application could be filed for amending the written statement ; ' thirdly, that amendment should have been allowed as the suit of the respondents-plaintiffs pre- emptors could be defeated on any technical ground, the right of pre-emption being piratical in nature ; and ' lastly, that the amendment related to the question of limitation which being mainly a question of law could be raised at any stage, and, in fact, it was the duty of the Court to have adverted to it on its own as provided by section 3 of the Limitation Act.
' The learned counsel relied on Karamat Ali and another v, Muhammad Yunus Haji and others , Ata Muhammad v. Mst. Irshad Begum and others and Hazar Khan and another v. Mst. Shahnaz in support of the contention that the amendment could be allowed at any stage.
7. On the other hand, the learned counsel for the respondent in Civil Revision No, 204 of 1979 contended that the application seeking amendment was not signed by the petitioner and as such was not maintainable and that the objection having not been taken in the written statement could not be allowed by way of amendment.
8. The learned counsel for the respondents in Civil Revision Nos, 205 and 206 of 1979 contended that Mr. Salim Ahmad Advocate who signed the application was the counsel for Mst. Wazir Begum only and as such the amendment could be allowed in her written statement alone.
9. The next contention raised by him was that the application was vague and did not give the date on which the possession was allegedly delivered to the petitioner-defendant under the sale.
10. He also urged that the defence taken in the written statement was that Muhammad Rafi the subsequent vendee who was tenant on the land in dispute was in possession and to him the sale was allegedly made within limitation in recognition of his preferential right of pre-emption. He submitted that since the possession was admittedly with Muhammad Rafi it could not be claimed by the petitioner that she had obtained the possession under the sale before the mutation. He relied in this regard on Secretary to Government (West Pakistan) (Now Department of Agriculture, N.-W. F. P. And Forest), Peshawar and 4 others v. Kazi A. Kafil contend that the admission in the written statement as made in para. 7 of the suit of Mst. Sardar Begum and paras. 2 and 3 of the suit of Maqbool Ahmad Khan and in paras. 3, 4 and 5 of the suit of Muhammad Shafiq Khan would be negated and shall stand withdrawn if the amendment is allowed which has held by the Supreme Court in the cited authority cannot be allowed.
11. The point which arises for determination mainly is whether the amendment has been rightly disallowed or not ?
12. The basis of the impugned order apparently is that the application had been filed at a belated stage and was an afterthought. Now, there is no universal principle that when an application is made at a belated stage it cannot be considered. In fact, in the authorities cited on behalf of the petitioner, it has been held that amendment can be allowed in the pleadings at any stage. In Ata Muhammad v. Mst. Irshad Begum and others it was allowed at the appellate stage, whilst in Keramat Ali and another v. Muhammad Yunus Haji etc., this was allowed at the stage when the matter was in the Supreme Court. The premises of the impugned order therefore is manifestly erroneous.1 2 3 4
13. Apart altogether from the above position, it would be worth noticing that the application otherwise also was not filed at a belated stage. Issues admittedly had been struck on 7-12-1977 and evidence of the respondents-plaintiffs concluded on 17-4-1978 and the application for amendment was made on 17-7-1978. The stage in the suit was therefore not much advanced because there was yet evidence of the petitioner-defendant which was to be led and also evidence of the respondents-plaintiffs in rebuttal. If the amendment had been allowed at that stage, it would not have caused any prejudice to the respondents-plaintiffs in that they would have had ample opportunity to meet the case as might have been set up by the petitioner-defendant through the amendment.
14. Another important factor which lends support to the case of the petitioner for allowing her amendment was the document Exh. P. 4 proved on record by the respondents-plaintiffs themselves. The suits had been filed on 31-10-1974 and 4-11-1974 respectively and mutation No, 523 Exh. P. 4, which is the basis in all the suits, had been entered on 18-2-1973 though sanctioned on 5- 11-1973. The recital while entering the mutation is to the effect that the total consideration had been received by the vendor and possession delivered. It has therefore been rightly pointed out by the learned counsel for the petitioner that in view of the recital in the mutation in question, it was the duty of the Court under section 3 of the Limitation Act to see whether the suit had been instituted within the period of limitation as this was a matter calling for serious consideration by virtue of the provisions of Article 10 of the Limitation Act as also section 30 of the Punjab Pre-emption Act, 1913.
15. The contentions raised on behalf of the respondents, suffice it to say, proceed on an erroneous assumption in that the amendment had not been disallowed for the reason that a new case would be set up if amendment is allowed. In fact the allowing of amendment will enable the Court to completely and effectually adjudicate upon the plea of limitation raised by the petitioner- defendant as based on the ground of having obtained possession prior to the sanction of mutation in question and obviously while resolving this controversy the nature of possession delivered and the conflict, if any, in the plea now sought to be raised qua the contents of the original written statement would also finally fall for determination by the Court below. The Supreme Court authority cited on behalf of the respondent, viz. Secretary to Government (West Pakistan) (Now Department of Agriculture N.-W. F. P. And Forests), Peshawar and 4 others v. Kazi A. Kafil (3) lays down the principle that an admission specifically made in the written statement cannot be allowed to be withdrawn through an amendment which is not the position in the case in hand. The amendment sought in the case in hand at the worst gives rise to inconsistent pleas in the written statement the effect of which, as already pointed out above, can be gone into by the trial Court at the time of disposal of the suit on the basis .Of the material that may be brought on record by the parties.
16. In view of the foregoing, I accept this revision and setting aside the impugned order dated 6-1- 1979 passed by the learned Senior Civil Judge, Sheikhupura, allow the amendment sought for by the petitioner-defendant subject to payment of costs of Rs, 100, in each case. Parties to bear their own costs in this petition. PLD 1963 SC 191 PLD 1962 Lah. 803 PLD 1971 Quetta 39 PLD 1978 SC 242 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.