Relevant facts for the disposal of this Constitutional petition are that one Muhammad Hayat sold some land in favour of Muhammad Hanif, Muhammad Rafiq and Muhammad Latif sons of Fateh Din through a registered sale deed dated 27-10-1977. The petitioner obtained a certified copy of the registered sale deed in which names of the vendees were shown as Muhammad Hanif, Muhammad Latif, Muhammad Latif sons of Fateh Din. In the suit filed by the petitioner for pre- emption on 26-10-1978, he cited the defendants as given in the certified copy of the sale deed but added a note that one name is wrong. When original sale deed would be produced (by the defendants) application for correction would be made. The reason for saying so was obviously that the name of Muhammad Latif had appeared twice in the copy. However, before the original sale deed was produced, the petitioner submitted an application on 27-3-1979 before the learned trial Court for correction of name of one of the two Muhammad Latif's to Muhammad Rafiq. The learned trial Court passed an order on the same day as follows :- "In view of no objection made by the parties' counsel the application for amendment for the correction of name of the defendant No. 2. Is allowed subject to payment of Rs. 100------ On 24-4-1979, an application was filed on behalf of Muhammad Hanif, Muhammad Latif and Muhammad Rafiq saying that the statement of the counsel on behalf of Muhammad Hanif and Muhammad Latif was made without their instructions and consent, and that as Muhammad Rafiq was riot Cited as a defendant in the plaint, the same ,was liable to be dismissed and this was not to be affected by the consent of the counsel for the other two. After contest, the application was rejected by the learned trial Court on 2-7-1979. On a revision petition, the learned District Judge relying on Jawala Das and others v. Gopal Lal (i) and Des Raj and others' case (2) (in fact the latter is the same as the form.-r) set aside the orders of the learned trial Court. This is vide order dated 12-1-1980. The petitioner has filed the above titled Constitutional petition.
2. Learned counsel for the petitioner has referred to a number of decisions but the relevant one is Abdus Sattar Khan v. Hafiz Muhammad Bakhsh acrd another (3) wherein a learned Division Bench after referring to a number of judgments decided that where mis-description of suit land in a plaint had come about due to mistake in the certified copy of the sale deed supplied by the copying agency, the mistake can be corrected even at the stage of execution of the decree. He also referred to Sultan alias Sultan Ahmad v. Mehr Nawazish Ali and another (4) to contend that when the amendment had been allowed on payment of costs and costs were received, the party concerned was estopped to challenge the amendment.
3. Learned counsel appearing for the contesting respondents has reiterat--ed the submissions earlier made on their behalf. It was submitted that Muhammad Rafiq having not been impleaded as a party in the plaint, after the expiry of limitation he could not be allowed to be impleaded and the decision of the learned District Judge, even if erroneous though not conceded, is not liable to be interfered with in exercise of Constitutional jurisdiction.
4. I have heard the learned counsel for the parties at length. Second submission of the learned counsel for the petitioner may be disposed of first. This was that as the amendment was allowed without objection by the counsel for the defendants on payment of costs, no exception could tie taken to the order. There are two flaws in the argument. Firstly, the counsel at the time was Muhammad Hanif and Muhammad Latif. His statement cannot hind Muhammad Rafiq: Secondly, there is no proof adduced of payment and receipt of costs. Therefore, the authority relied upon by the learned counsel for the petitioner is not applicable.
5. The other point in the controversy is delicate and crucial. On the one hand, there is a plaintiff who had filed the suit on the basis of a document whose certified copy supplied to him by the public copying agency carried a mistake. He noticed it. He mentioned it in the plaint and stated that he would seek correction when original was produced. He acted bona fide and deligently. No blemish is attachable to him. On the other hand, there is a defendant. He was not sued within the prescribed time of limitation. By efflux of time, further right has accrued to him that he cannot be sued thereafter. He has done nothing either that his rights may be put in the jeopardy of litigation.
After hearing both sides, the learned trial Court armed his decision to allow the correction though called amendment. Relying on Tek Singh and others v. The Crown (5), the learned District Judge set aside the orders of the learned trial Court. In the case relied upon, the then learned District Judge after observing that there was carelessness on the part of the plaintiff had none--theless allowed the amendment after time, holding that the mis-description of the defendants was on account of error in the certified copy and he had relied on Jogendar Narain Roy v. Ferbes (6), but the decision was reserved on second appeal by a learned Single Judge in the High Court on the ground that there was not the mis-description but non-impleading of party.
(1) AIR 1925 Lab. 343 (2) 1925 P L R 447
(3) PLD 1979 Note 51 at p. 35(4) 1971 SCMR 185
(5) AIR 1925 Lab. 373(6) (1916) 32 1 C 832
6. I felt reluctant District Judge in exercise of Constitutional jurisdiction because an erroneous decision is not amenable to interference. But three --because of increasing velocity called for attention. First that the learned District Judge was exercising revisional jurisdiction over the discretionary orders passed by the learned trial Court. He was not hearing appeal as the learned Judge in the High Court on whose decision he relied was doing, though that was second appeal but nonetheless an appeal. Scope of an appeal is different than that of a revision. The order of the learned trial Court was neither outside the jurisdiction vesting in him nor suffered from an illegality or material irregularity to attract revisional jurisdiction under section 115 of the Code of Civil Procedure. The learned trial Court had exercised his discretion and he was entitled to. Secondly, the case involves decision on two competing claims of contesting parties when none is at fault plaintiff, that he is entitled to adjudication of his claim when be is not at fault end done all what could possibly he done ; defendant, that he is not liable to be dragged in litigation after time when be had done nothing wrong either. There being no decision on all fours authoritative decision on the point appeared to be called for. Thirdly, there was a Division Bench Judgment of the High Court laying down a principle which was not taken into consideration by the learned District Judge, though in fairness to him, it may not have been cited before him. The judgment of the learned Division Bench in Abdus Sattar Khan and others v. Hafiz Mohammad Bakhsh and another, Although the case involved description of property and not of person but principle is discernible from what is laid down at p. 324(1) of the report which reads as follows;- "8. In the case in hand the material on record quite clearly gives out that the parties had entered into an agreement about the entire land situate in village Pallu Shah. There was, therefore, no mistake about identity of the property. The wrong description crept into the plaint not because of a mistake of any kind on the part of the plaintiff applicant but because of a mistake on the part of a public functionary which cannot be allowed. Rather, it is the duty of every Court in such a situation to undo the wrong as otherwise it may open a floodgate of another kind of corruption at the hands of delinquent public officials. The case o c the applicant is thus on a far better footing than the cases referred to above."
The ratio decidendi of the case is that mistakes of copying branch cannot be allowed to affect the decision on merit. The principle is sound, if I can say so with profound respect. The other side of the coin that the defendant is brought to Court after limitation without any mistake on his part is met by the consideration that the plaintiff too was without mistake and cannot be kept out of Court either. Both are - at par. Mistake of third party should affect none. 'A few cases which may have bearing on the question may also be referred to. One is Moti and another v. Sayed Ahmad Shafi and others (1896) 29 P R 80',wherein a suit for pre-emption was filed against the vendee Madrassa Tibbia in Delhi, through its Manager. When it was objected that the society was unregistered and could not be sued through its Manager, the District Judge returned the plaint for the names of the members of the society to be entered, which was accordingly done. It was contended on behalf of the added members that as they were brought on record after the expiry of one year the suit was barred by time. The contention was accepted and the suit dismissed. On appeal it was held by a learned Division Bench that the Manager was not the sole proprietor of the Madrass Tibbia and that inasmuch as that when the plaintiffs instituted their suit they intended to sue as the vendee, the Madrassa Tibbia as a body, and not merely its Manager. The society was sued though the names of its members were not specified. Those members were, however, comprised in the designation Madrassa Tibbia, and the subsequent specification of their names was either a correction of a mis- description or an amplification of an imperfect and insufficient description. Therefore, there was no question of limitation. In a certificated appeal in the case of Mura Mohideen v. Y. O. A. Mohomed and others (1), a learned Division Bench after referring to numerous cases from India as well as in England came to the conclusion that "if, however, imperfectly and incorrectly a party is designated in a plaint the correction of the error is not addition or substitution of a party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake, The question in such a case is one of intention of the party and if the Court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide vide Order I, rule 10, C. P. C. Such an amendment does not involve the addition of a party so as to attract section 22(l) Limitation Act." The case was followed by a learned Division Bench in Ismail Haji Suleman v. Messrs Hansa Line and another (2).
The same principle has been ennunciated by another learned D. B. In Muhammad Ali H. Allah Rakhya v. Piarali H. Lada Bhai and another (3). So the whole thing is intention and bona fide action.
Both stand satisfied in the case in hand as would appear from the statement of facts earlier made.
Therefore, in all the circumstances of the case, I come to the conclusion that the learned District Judge fell in error in not applying his mind to all the aspects of the case and omitting to consider the principle of law laid down by a learned Division Bench of the High Court. Therefore, the impugned order is without lawf4l authority and it is so declared. Since the point involved was complex, the parties are left to bear their own costs. The trial Court shall proceed with the suit as it was doing before the impugned order was passed which now stands vacated.
(1) AIR 1955 Mad 294(2) PLD 1961 Dacca 693
(3) PLD 1968 Kar. 345