This order will dispose of Civil Revisions Nos. 266/81, 267/81,'268/81, 269/81, 270/81 and 271/81, as these arise out in similar circumstances.
2. The petitioners purchased six small residential plots of land measuring about 3 marlas on 25-11- 1978. The respondent filed suits for possession by way of pre-emption claiming the right to do so being khewaidar and yakjaddi of the vendor, on 30-4-1979. The vendee petitioners filed written -- statements saying that the plaints did not disclose any cause of action. The written statements were filed on 6-6-1979. On the same day issues were fram--ed and plaintiff-pre-emptor was required to produce evidence. On 27-1-1980, the sale deed was produced and the affirmative evidence was closed by the learned counsel for the plaintiff pre-emptor. On 28-6-1980, an application was made for amendment of the plaint to add para. 2 (a) in the plaint to the effect that the suit land was urban situated in the sub-division of the town where custom prevailed and a ground for purchase through pre-emption was also sought to be added, i. e. that the plaintiff-pre- emptor was the owner of con--tiguous property. The application for amendment was rejected on 22-7-1980. Thereafter, on 31-7-1980, the learned trial Court rejected the plaint saying that since the amendment application had already been dismissed, the plaint was liable to be rejected because it did not disclose any cause of action and he ordered accordingly in terms of Order VII, rule 11, C. P.
C. This is vide judgment and decree dated 31-7-1980. The plaintiff-pre-emptor filed appeals and a learned Additional District Judge accepted the same on the ground that the amendment sought was only in the nature of explanation or amplification of the claim and even if the plaintiff- petitioner had omitted to allege custom that did not mean that the suit did not disclose cause of action. Reliance was placed on Mst. Hayat Begum v. Faiz Ahmad and another (1). It was further held that even it be assumed that the amendment amounted to new ground of attack still that did not change the nature of the suit and it could be allowed after the expiry of limitation. Reliance was placed on Bahadur Shah etc. v. Sharaf Ali and 9 others (2). Allowing the application for amendment, the learned - Additional District Judge accepted the appeal and remanded the case for further proceedings to the learned trial Court vide judgment and decree dated 1-4-1981. The vendees have come up in revisions.
3. The learned counsel for the petitioner has contended that the judgments relied upon by the learned lower appellate Court i. e. Mst. Hayat Begum v. Faiz Ahmad and another and Bahadur Shah etc. v. Sharaf Ali and 9 others are Single Bench decisions and the case in hand is governed by a decision of a learned Division Bench of the High Court Shah Muhammad v. Hayat and others (3) wherein it was held that if a suit was filed on a particular ground for claiming superior right of pre- cmptinn which was not recognized by law, amendment cannot be allowed to plead a new ground.
The con--tention of the learned counsel for the petitioner is that in the present case, in the plaints the grounds urged for claiming preferential right were being a khewaidar and yakjaddi recognized under section 16 of the Pre-emption Act with reference to agricultural land pre-emptible. Under section 6 of the Act. In the present case, the suit property was not agricultural land. It was urban immovable property covered by section 7 of the Act and law applicable was section 16 of the Act.
By the amendment sought the character of the suit property and law applicable would be altered which is not permissible.
(1) PLD 1966 Lab. 581 -(2) PLD 1973 Lab 513
(3) PLD 1960 Lah. 975
4. Learned counsel appearing for the respondent-pre-emptor has submitted that in the plaints the land in dispute was shown to be situated within the urban limits and adjoining to the house of the pre-emptor which would show that the respondent-pre-emptor bad a preferential right and the fact that custom prevailed in the area could be proved by way of evidence and, therefore, the amendment sought was only formal and did not change the nature of the suits and could be allowed. In any case notwithstanding the rejection of the amendment application the suits should have been tried as those were and the plaints could not be rejected on the ground that those disclosed no cause of action.
5. The judgments relied upon by the learned trial Court are distinguish--able on facts. In the first case of Mst. Hayat Begun v. Faiz Ahmad and another, the plaintiff claimed superior right of pre- emption. The vendees contended that the plaint did not disclose cause of action as the plaintiff had not alleged in the plaint that the custom of pre-emption existed in the area. The two Courts below rejected the plaint on the ground that it did not disclose a cause of action. On Second Appeals, the learned Single Judge held that pleadings need only disclose facts on which a party relies and not the law which the Court itself is to find applicable to the facts. In the present case, the plaints stated the facts of being khewatdar and yakjaddi and claimed preference thereupon.
These were denied to be applicable to the subject-matter of the suits. These . Two qualifications are applicable to agricultural land. The suits property was urban residential immovable property.
Therefore, there was no question that the plaints had disclosed material basic facts and it was only law, custom, which was sought to be pleaded by way of amendment. Facts were not pleaded to which law was applicable. In the second case of Bahadur Shah and 2 others v. Sharajand 9 others (at p. 520), the learned Single Judge observed that "in a suit for pre-emption the plaintiff-petitioner had made an application for amendment in order to enable him to add a new ground of attack i.e, that he was a collateral of the vendor and this was dismissed on the ground that anew ground could not be allowed to be ridded after the expiry of the period of limitation., I have not been able to find out any authority for the proposition that a pre-emptor cannot be allowed to add a new ground of superiority of his right of pre-emption in the plaint after the expiry of the period of limitation. In fact, there is authority for the proposition that a new ground in support of the relief claimed cannot be said to alter the character of the suit and will as a general rule be allowed. It is also established that where in such case the amendment is allowed, it takes effect from the date when the suit was instituted. The learned trial Court has exercised its jurisdiction illegally and with material irregularity in this case by -exercising its discretion in capricious mariner and contrarily to the principles established by the precedents of High Court". Learned counsel for the petitioner submitted that attention of the learned Single Judge was not drawn to the decision of the learned Division Bench of the same High Court reported in PLD 1960 Lab. 975 whecein the ground claimed in the plaint for superior right of purchase in a pre-emption suit was not recognized by law and an amendment was sought to plead such a right recognized by law, the amend--ment was not allowed. It is submitted that in the present case, the right claimed in the plaint was not recognized in relation to the subject-matter of the suits. Therefore, amendment of the plaints to plead such a right could not be allowed. The Division Bench Judgment by two eminent Judges of this Court, Mr. Justice Shabbir Ahmad and Mr. Justice B. Z. Kaikaus not only binding on me sitting singly but I agree whole-heartedly, if I may say so with respect, .That if a pre-emptor comes to Court and claims preferential right of purchase on two grounds, apprehending defeat he cannot ask for an amendment of his plaint to add another ground ; just like a soldier who goes to battlefield with two guns and fearing defeat, cannot ask for quarter to, bring for the missile. He must fight to finish for good or bad. In the present case the respondent-pre-emptor claimed preferential right on the basis of being khewatdar and yakjaddi which quali--fications are applicable to suits for preemption of agricultural land. The suit property is not agricultural land. It is urban immovable property. The amendment sought to add a new ground of contiguity so as to make it applicable to the suit property will change the character of the suit. The contention that from the heading of the plaint nature of the property as urban and its contiguity with the home of the respondent-pre- emptor can be discerned has no force as in the body of the plaint no statement as regards the nature of property or character of the claim on the basis of contiguity-was mentioned. Rather assertions were made differently. Secondly, in the present case it will be seen that the written statements were filed on 6-6-1979 and issue on the point was framed the same day. The respondent-pre-emptor after producing the sale deed closed his evidence on 27-1-1980. It was after six months that the respondent -pre-emptor thought of applying for amendment of his plaint filed a year and half earlier and after more than a year of the written statements filed by the defendant vendees objecting to the maintainability of the respondents' suits on the ground that on the plaint, no cause of action was shown in respect of the land in dispute because the same was urban residential and was being claimed as if it were agricultural land. The application for amendments was too delayed and the applicant-respondent was negligent. So on merits the application could not be allowed and was rightly rejected by the learned trial Court. The learned lower appellate Court erred in setting aside the order. The contention of the learned counsel for the respondent that the plaint could not be rejected even if the amendment were not allowed and the suit should have been decided on merit is specious but in the circumstances of the case after rejection of the application for amendment, there was nothing left in the plaint to proceed. The pleas raised had no relevance or application to the land in suit. Thus, the plaints had no cause of action in relation to the subject-matter of the suits. Moreover, the respondent-- plaintiff had after producing the sale-deed closed his evidence on 27-1-1980. Neither he appeared in support of his plaint nor produced any evidence to substantiate his claim. If the defendant-vendees had said, after the close of evidence by the respondent pre-emptor, that they want to walk out and the Court may decide the matter on the record as it is, the Court would have had no option but to dismiss the suits because there was no evidence produced by the respondent-pre-eniptor in support of his claim. The sale-deed did not prove his claim. Rather it showed that the land dealt with was not pre-emptible according to the plaints of the respondent--pre-emptor.
6. In view of all the circumstances of the case, the judgments and decrees of the learned trial Court were perfectly right and the learned lower appellate Court erred in setting these aside. Therefore, the revisions are accepted and the judgments and decrees of the lower appellate Court are set aside. In the circumstances of the case, the parties are left to bear their own costs.