' Mashal Khan (hereinafter referred to as the vendee) purchased field No, 238 measuring 9 kanals and 15 marlas and the sale was pre-empted by Abdul Karim (hereinafter referred to as the pre- emptor). In the plaint the area of field No, 238 was shown to be 9 kanals and 5 marlas though it was not specifically stated by the pre-emptor that he was pre-empting only 9 kanals and 5 marlas out of the field number which measures 9 kanlas and 15 marlas. It appears that the copy of annual record for the year 1972-73 (Exh. P. W.-1/1) which was furnished to the pre-emptor by the Patwari, by a clercial error, mentioned the area of field No, 238 as 9 kanals and 5 marlas. At the time of giving the evidence, however, the Patwari admitted his mistake by saying that he had inadvertently recorded the area of Field No, 238 as 9 kanals and 5 marlas in Exh. P. W.-1/I and that in fact the area was 9 kanals and 15 marlas. Incidentally in the remarks column also the Patwari had mentioned the area, which was the subject of mutation of sale in favour of the vendee, to be 9 kanals and 5 marlas.
2. The written statement filed by the vendee gave rise to several issues one of them being that the suit was bad for partial pre-emption. The issues were struck on 15-5-1975, the statement of Patwari was recorded on 29-7-1974 and for determining the value of the property the report of the Commissioner was placed on record on 9-5-1975. The case was fixed for arguments on 26-1-1976 but on that date the pre-emptor made an application for the amendment of the plaint to enable him to correct the area by substituting "9 kanals and 15 marlas" for "9 kanals and 5- marlas". This application was rejected by the trial Judge by his order dated 23-2-1976. By a separate judgment of 26-4-1916 the pre-emptor's suit was dismissed by the trial Judge on the finding that the suit of the pre-emptor was for partial pre-emption.
3. The pre-emptor appealed against the order dated 23-2-1976 and judgment and decree dated 26-4.1976 to the District Judge who dismissed both the appeals by his order dated 8-12-1976 confirming the conclusion of the trial Judge that the suit was bad for partial pre-emption and that amendment of the plaint could not be allowed after the expiry of the period for bringing a suit for pre-emption.
4. The pre-emptor has filed two revision petitions, one being C. R. No, 67 of 1977 and the other C. R.
No, 59 of 1977, before this Court challenging the orders, judgments and decrees of the two Courts below whereby permission to amend the plaint was refused and the suit of the pre-emptor was dismissed.
5. 1 have heard the learned counsel appearing for the parties and have gone through different authorities relied upon by them. The learned counsel for the pre-emptor has based his arguments on the case of Charan Das v. Amir Khan (1). In this case it was held as follows :-- "Where the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner, and to amend the plaint so as to express the rights which it has been really their intention all along to establish, although the amendment of plaint is sought to be made at a time when the suit itself if instituted then would be time-barred. And though such a power should not as rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circumstances of the case."
' From the above authority it is clear that in certain cases the amendments can be allowed where there are considerations which outweigh the special circumstances of the case even though some right had accrued to the other party.
6. The learned counsel for the respondent, on the other hand, relied on the case of Shah Muhammad v. Hayyat (2), wherein it had been held that by way of amendment a pre-emptor cannot introduce new basis for enforcing his right of pre-emption. He also relied on the case of Trans-Oceanic Steamship Company Limited v. Tayoob Moosa & Company (3), wherein it was held that inordinate delay and negligence on the part of a party to amend the pleadings disentitles the concerned party to obtain an order of amendment. This was a case which was instituted in 1952 and the amendment was sought in 1958. These cases are not at all relevant for in the first case the entire basis of claim was changed and in other there was inordinate delay of six years which could not obviously be condoned.
7. In my opinion, however, it is not necessary to examine the above authorities in detail: for the present case is not a case for amendment of the pleadings but it is a case of correction of error.
The pre-emptor was supplied with a copy of the annual record which wrongly disclosed the area of the field number to be 9 "kanals and 5 marlas" whereas in fact it was "9 kanals and 15 marlas". The pre-emptor included the entire field number and not a part of it. Obviously he had pre-empted the entire sale made in favour of the vendee but the area was wrongly recorded. This was thus a case of inadvertence and not of intentional omission. There was a conflict in the description of the subject-matter of suit and in its area. The subject-matter of to dispute had been correctly given but the area had wrongly been recorded. In such cases, in my view, the claim giving the descriptions of the property should (1) AIR 1921 P C 50 (2) PLD 1960 Leh. 975(3) PLD 1959 Kar. 399 prevail and not the area given in the plaint. I would, therefore, without any hesitation, hold that since the pre-emptor sued to pre-empt the entire field number which was the subject of sale, his snit was not bad for partial pre-emption for the sole reason that the area was inadvertently shown to be less than the actual area. When the application for amendment was made the learned trial Judge should have himself corrected the error by substituting "15 marlas" for "5 marlas" which he could do in view of the powers vested in him under section 153, C. P. C.
8. The learned counsel for the respondent has referred to some authorities on the point that in revision petition the concurrent finding of fact cannot be interfered with. These authorities are not on point because in the present case there is a misinterpretation of the evidence on record and the failure of B the trial Judge to exercise his jurisdiction under section 153, C. P. C. And as such this Court can interfere under section 115 ibid.
9. In view of the above discussion, the petitions are accepted, the impugned orders, judgments and the decrees are set aside, and since the District Judge has not given his finding on the other issues, the case is remitted back to him for giving findings thereon after correcting the clerical error in the plaint as directed above. The cost shall follow the event. . Case remanded.