' MIAN SAQIB NISAR, J.---The land measuring 8 Kanals and 18 Marlas, was purchased by the six vendees; the appellant had challenged this sale by filing a suit for the pre-emption on 17-1-1979; in the plaint, all the six vendees were arrayed as defendants, but the very next day, an amended plaint was filed, because initially the plaintiff has omitted to pay the proper Court fee and also "Naqshah Dhalbash". In the amended plaint, Mukhtar Ahmed, one of the defendants, was, however, not shown to be a defendant; anyhow, the suit was contested and the learned trial Court dismissed the same on 22-2-1982, by applying the provisions of Order XVII, rule 3, C.P.C., and for the lack of the plaintiff/appellant's evidence; this was challenged by the appellant through an appeal. Which was accepted and the case was remanded. In this appeal, Mukhtar Ahmad, however, was arrayed one of the respondents. Anyhow, after the remand, the appellant did not implead Mukhtar Ahmad as a party and the suit was decreed on 5-5-1986; the respondents preferred an appeal, which was accepted, therefore, the suit was dismissed. The appellate, Court, took notice of the fact that Mukhtar Ahmed, was not a defendant to the suit, therefore, it concluded that the suit is hit by the rule of partial pre-emption; and against Mukhtar Ahmed and was barred by time. However, the Court was also of the view that the case comes within the purview of said Kamal's case and therefore, found no need to further proceed with the matter; the appellant assailed this judgment and decree, through the C.R. No,676 of 1987, which was accepted and the matter was remanded; the view of the Court is that "The decree impugned in appeal was passed on 5-5-1986, which was admittedly before the target date, therefore, in view of rule laid in PLD 1988 SC 287, the suit could proceed and will have to be decided in accordance with old law as valuable rights had already created in favour of the appellant". It was further held that "The findings on the other issues including superior right of appellant and price recorded in favour of appellant were affirmed by the learned Additional District Judge and also not challenged in the present proceedings, need not be interfered with and affirmed". But the revision was still allowed and the matter was remanded to the trial Court to resolve, if the suit was barred by time, against Mukhtar and it was hit by the rule of partial pre-emption. On account of the above, this Court held, "this revision petition is allowed, the impugned judgments are set aside to the extent of dismissal of suit on the plea of partial preemption and the case is remanded to the learned trial Court for framing of issue on the partial pre-emption and for its decision after recording evidence and hearing of the parties."
2. In the post remand proceedings, the learned Civil Judge, framed the following two additional issues:-- 1-A Whether the suit is barred by time to the extent of Mukhtar Ahmed? OPD 1-B Whether the suit is hit by doctrine of partial pre-emption, if Issue No,1-A, is proved in the affirmative? OPD ' As the onus of above both issues was on the shoulder of the respondents/defendants, they led some evidence in this behalf, but again the evidence of the appellant was closed under Order XVII, rule 3, C.P.C. Be that as it may, the learned Civil Judge, on Issue No,1-A, has come to the conclusion as under:-- "6 The learned counsel for the defendants argued that the suit was instituted for the first time on 18-1-1979, against the defendants including the said Mukhtar, thereafter, the amended plaint was submitted on 12-2-1979, in which, the name of Mukhtar was missing. Again the amended plaint was submitted on 7-10-1998 in which the name of Mukhtar was inserted. This amendment was inserted by the order of the Court.
"7 In pre-emption suit the pre-emptor is never given any leniency specially in case of limitation. The said Mukhtar remained absent from the picture only because of the mistake of the plaintiff. My learned predecessor has not given the benefit of limitation, while Accepting the petition for amendment. Moreover, the plaintiff has failed to produce the evidence on this issue in rebuttal. This is the sufficient material to understand that the suit is badly barred. This issue is decided in affirmative."
' On Issue No,1-B, the Court has given its finding that "It is not possible to allow the plaintiff to replace Mukhtar in the combination of the defendants. As such the suit is hit by principle of partial preemption. Therefore, the issue is decided in the negative." On the basis of these findings, the suit of the appellant was dismissed. This judgment and decree, has been challenged by the appellant through an appeal and the learned appellate Court, vide judgment and decree dated 15-12-2003, has held "I am of the view that pre-emption right being piracy right particularly in these days when pre-emption suits are instituted merely for the sake of bargain, the point of limitation was much crucial to decide such like suits/matters of pre-emption, since one of the vendees was not impleaded as party to this suit nor he was made to participate in the trial of this case, the suit filed by the appellant/plaintiff in the absence of said Mukhtar would be rendered as one barred by time as well as one for partial preemption as from the sale-deed Exh.P.1 it is evident that the impugned transaction could not split up as the same was finalized through single document of title and the price of the disputed land had been paid by all the vendees in lump sum to the vendor."
3. Learned counsel for the appellant argued that right from the beginning i.e, in the original suit, the appellant had arrayed Mukhtar Ahmed as a defendant to the suit; the whole land sold to various vendees, was pre-empted; it is only due to some clerical error that when the amended plaint was filed, Mukhtar's name slipped and does not find mention therein. However, when the appeal was filed, against the first decree, he was added as a respondent, and subsequently, when the appellant had applied to add him as a defendant before the trial Court, after the decision of this Court in C.R. No,676 of 1987, he was permitted to be made as a party, therefore, in such circumstances, as Mukhtar Ahmed was very much party to the suit right since its inception, resultantly, any inadvertent and accidental omission, would not render the suit bad for the misjoinder of the parties, thus attracting the bar of limitation, or the partial pre-emption. It is also submitted that the technicalities should not be allowed to impede the interest of justice.
' In this behalf, reliance has been placed upon the judgment reported as Shaaban and others v.
Mst. Shamim Akhtar and others 2005 SCM R 1706.
4. Heard. The proposition in hand is almost akin to the facts of the above noted judgment of the Honourable Supreme Court of Pakistan, where it was held that "The above resume demonstrates that it was an inadvertent omission on the part of the respondents for not impleading the second set of vendees at the initial stage as they were claiming the entire sale by offering total sale price.
Such-like technical objection should not come in the way of substantial justice as this Court has held time and time that technical knock out should sparingly be resorted to as procedures are meant just to foster the cause of justice and not to thwart the same" In the present case, as mentioned earlier, Mukhtar Ahmed was originally party and if on account of some clerical omission, was left out, when the amended plaint was filed, it cannot be held that he was never a party at the inception of the case; rather when the application to implead him as a party was filed by the plaintiff/appellant and this was so allowed by the Court below, it means that his original impleadment was restored with retrospective effect, resultantly on this score, the suit of the plaintiff/appellant, could not be dismissed, as being barred by limitation or hit by the rule of partial preemption.
' In the light of above, by allowing this appeal, the judgments and decrees of the Courts below are set aside, with the result that as no other question is involved, the suit of the plaintiff/appellant stands decreed; the plaintiff is directed to deposit the balance amount of sale consideration, if not so far been deposited within a period of three months from today, otherwise, his suit shall be deemed to have been dismissed.