I propose to dispose of the petition for leave to appeal (No. 11/MR of 1982), and also Miscellaneous Application (No. 5/MR of 1982), by, this single order.
2. Land in suit measuring 3 kanals and 12 marlas comprising seventeen field numbers which all fall under Khata No. 437, Khewat No. 98, situate in the area of village Khanpur, Tehsil Mirpur, by way of a registered sale-- deed dated 4-10-1972, was transferred in favour of Jalal Din, petitioner (defendant). The sale-deed was sought to be pre-empted by Muhammad Aslam and Jewan, respondents herein, claiming that being joint owners in the `Khatas' and 'Khewat' they had a right of pre-emption superior to that possessed by the vendee.
3. The copy of the sale-deed, accompanying the plaint, reveals that the copying agency omitted to enter one field number, i. e., 1773. At the stage of arguments the respondents (plaintiffs), it appears, became conscious of this omission and moved an application for amendment to allow them to enter the omitted survey number in the plaint. The trial Court allowed the amendment and proceeded to decide the suit in passing a decree in favour of the respon--dents, on merits, on 30- 4-1977. The petitioner went up in first appeal before the District Judge, Mirpur, but without any success. The appeal was disallowed by the District Judge on 8-4-1981. The second appeal moved by him in the High Court also ended in rejection on 12-12-1981. The petitioner has moved the petition for leave to appeal to assail the said judgment of the High Court.
4. Leave was sought on various grounds but during the course of arguments the sole point which had been seriously pressed before me is that under Order VI, rule 17 of the Code of Civil Procedure, after the amendment of the plaint, it was imperative for the Court to provide the petitioner (vendee) an opportunity to file the additional written statement. The general scheme of the Code and the policy underlying the law of pleadings, it was contended, suggest that the new written statement can raise any new ground of defence and is not necessarily to be confined and restricted to the amended portion of the plaint. Elaborating his point of view the learned counsel maintained that if the petitioner would have had an opportuni--ty to file the additional written statement he would have raised the vital plea that the suit was liable to be defeated by virtue of two Notifications (No. 1-150/PS /76 dated 5th January, 1976, and No. 2901-3050/SL/76 dated 27th June, 1976). These notifications, he submitted, during the progress of the suit in the trial Court, had taken away the right of pre-emption in relation to the land sold from village Khanpur (as the case is before me) which falls within the municipal limits of Mirpur District.
5. After giving my considered thought I find little substance in the arguments advanced by the learned counsel for the following reasons:
(a) Regarding amendment in the pleadings, it is well settled that when the Court thinks that any reply to the amended plaint is necessary only then it calls upon the defendant to submit his additional written statement an not otherwise. But if the amendment of the plaint (as this case appears to be) is purely of a formal character the written statement may not be required at all as in such like cases there is nothing substantial to be replied.
(b) I have gone through the plaint as well as the copy of the sale-deed, filed with the plaint, and find that the `Khata' and `Khewat' numbers, under which the land falls, were correctly reflected in the plaint alongwith the actual acreage of the land sold. No doubt Survey No. 1773 was omitted to be entered in the plaint but this failure never occurred due to any fault on the part of the respondents. They filed the suit in terms of the copy of the sale-deed provided to them. I fail to understand as to how they can be held responsible for this omission and penalized for the fault of the copying agency. The learned trial Judge had, therefore, correctly exercised his discretion in allowing the formal amendment.
(c) Apart from the above, in my opinion, the present case, strictly speaking, is not a case of amendment of the plaint. It is, in effect, a case of correction of error of formal nature. Pre-emptors (respondents) were supplied with a copy of the sale-deed which omitted to enter one of the survey numbers i. e. 1773. They, in terms of the copy, entered in the plaint the entire land and no part of it was left out. It is thus manifest that the case did not suffer from any intentional omission on the part of respondents (plaintiffs). I am, therefore, of the view that since the pre-emptors sued to pre- erupt the entire land, their application for amendment was only meant to correct the error by adding a survey number. The learned trial Judge should have himself corrected such an error under section 153 of the Code of Civil Procedure.
(d) It is significant that the petitioner has failed to raise this point before any of the subordinate Courts. It has been raises before this Court for the first time. This cannot be permitted. The petitioner, it is conceded by Ch. Muhammad Taj, the learned Advocate, was well aware of the fact even before the trial Court that the land sold falls within the Municipal Committee of the Mirpur Town and as such not pre-emptible.
(e) Even otherwise, the question whether the suit land falls within the Municipal Committee is a question of fact and requires proof. The Supreme Court is not a full-fledged Court of appeal and as such this Court would ordinarily be very cold to reopen a case on factual aspect which has never been agitated before any of the subordinate Courts. In these circumstances, the point argued merits no consideration. The equity is also .In favour of the respondents ,(plaintiffs) because in the case of the nature where the application for amendment is made in good faith and cause of omission stands supported by unimpeachable document (here in this case the copy .Of the sale- deed proves the bona fide of the respondents), an amendment to correct any such unintentional omission should be allowed.
Mst. Fatima v. Sardara (PLD 1956 Lab. 474) supports me. It has been observed in this case:------ "The only formal defect which according to learned counsel for the respondent existed in the suit is that some of the Khasra numbers mentioned in the plaint are incorrect. This defect was of a very formal nature which did not have any effect on the suit at all. The Khata numbers had been correctly stated in the plaint and a jamabandi of the land in suit had been filed alongwith the plaint. The gift deed itself had also been filed. There could, therefore, be absolutely no doubt as to the identity of the land in suit even if an application was made to the Court at the end of proceedings for allowing a correction of the clerical mistake, there would be no objection to the Court allowing an amendment there and to adduce any fresh evidence. In the circumstances of this case, there was no need of any further adjournment.
Same view prevailed in Bahadur Shah and others v. Sharaf and others (PLD 1973 Lah. 513), wherein it has been observed:------------ "I have gone through the copy of the plaint as well as the sale-deed which is on the record and found that description of the land was not only given according to number of Khatas and Khasras but the area of the land was also given. The numbers of the Khatas and area in the two documents coincided with one another and only a slight error or omission is in respect of Khasra numbers.The learned trial Court, has, therefore, acted illegally and with material irregularity in the exercise of its jurisdiction by refusing to allow the amendment which was only a formal one."
6. Arguments in the petition for leave to appeal were concluded on 18-4-198 and the judgment was kept reserved. But on the same day Ch. Muhammad Taj, the learned counsel for the petitioner, probably realising the weakness of his case, moved an application for amendment of the written statement. He seeks the amendment- in the written statement to allow him to enter the following: "That the land in dispute is situate in the Municipality Area, Mirpur, therefore, the pre-emption suit is not maintainable against the petitioner-defendant."
7. I have heard the learned counsel for the parties regarding the amendment. The powers of the Courts to allow amendment of pleading are given under Order VI, rule 17 of the Code of Civil Procedure. No limitations are placed on the powers of a Court to allow amendment of the pleadings of any party, but it is well settled that the Court will not allow a amendment in a plaint or a written statement if the amendment would chang the whole complexion of the case. In the present case the suit was instituted on 26-11-1972 and decided on 30-4-1977. It would appear that during the pendency of the suit in the trial Court the notifications, allegedly taking away the right of pre-emption, mentioned above were issued. It may be stated here that even after the notifications, for well over six years, at no time the vendee, who was defendant in the suit, did make any attempt to get the order for amendment of his written statement with the object of showing that the land in suit was situated within the municipal area of Mirpur and, therefore, this sale could not be challenged by a suit of pre-emption because such sales have been ex--empted from pre- emption by the aforementioned notifications issued under the -relevant provisions of the Azad Jammu & Kashmir Right of Prior Purchase Act. If a party has not been vigilant enough the Court will not come to its help. As already observed whether the land is situated in the municipal area of Mirpur is a question of fact and if the vendee was not vigilant to amend the written statement raising the plea that the sale was not open to a suit for pre-emption by reason of the fact that the land is situated in the municipal area of Mirpur, he cannot be shown leniency of being allowed to take up the plea about six years after the notifications. I do not think that I would be justified in allowing the petitioner this facility of amendment at this late stage. I am afraid the prayer for amendment, in the circumstances, is not justified as it would not be proper exercise of the discretion to allow an amendment which would involve the setting up of a new case.
8. Ch. Muhammad Taj, the learned counsel, has argued that the Court has full powers to grant an amendment at any stage. He has referred me to Keramat Ali and another v. Muhammad Yunus Haji and others (PLD.1963SC191), Siddiq Ahmad v. Abdul Ghafur and another (1974SCMR180), Muhammad Akram v. Kaka' (PLD 1977 Lah. 1347) and Sardar Mir Usman Tareen v. Syed Muhammad Hassan & Sons and others (1980 SCMR 871).
9. I have gone through these citations. I am in total agreement wit the broad principles of law enunciated in the aforementioned cases that powers of the amendment conferred by the Code are very were and amendment can be allowed even in the Supreme Court but such powers can be exercised in accordance with the legal principles and I cannot allow an amend--ment which would involve the setting up an altogether a new defence. The judgment of Lord Buckmaster in Na Shwo Mya v. Maung Mo Hanaung (AIR 1922 P C 249), is directly in point.
10. In view of the above, I am afraid the prayer for the amendment of the written statement, in the circumstances, is not justified. A party must know the consequences of its negligence and no concession can legally be allowed to a party sleeping over its rights. For the above stated reasons, the petition for leave to appeal as web as the prayer for amendment of the written statement is disallowed.