' CH. MUHAMMAD IBRAHIM ZIA, J. -- This appeal by leave of the Court has been addressed against the judgment of the High Court dated 22.4.2015, whereby the writ petition filed by the appellants, herein, has been dismissed.
2. The brief facts of the 'case are that the predecessor-in-interest of appellants, Khadim Hussain, filed a suit for pre-emption against father of private respondent, regarding land comprising survey No, 1015 measuring 4 kanals situated in village Banjosa, in the Court of Civil Judge, Rawalakot, on 5.8.1989. The predecessor-in-interest of appellants and father of private respondent during proceedings died, hence, their legal heirs were impleaded as parties. The suit was dismissed on 22.4.1996. Against the judgment and decree dated 22.4.1996 an appeal was filed before the District Judge, Poonch. The learned District Judge set aside the judgment and decree of the Trial Court and remanded the case for fresh trial and decision upon amendment application. The appellants moved an application before respondent - No, 2, for deciding the application for amendment in the plaint dated 21.5.1996. The application was dismissed by the Trial Court vide order dated 12.7.2010. The said order was challenged by the appellants through revision petition before District Judge, Poonch which was also dismissed through the order dated 29.12.2010. Feeling dissatisfied, the appellants filed a writ petition before the High Court for quashing the impugned orders dated 29.12.2010 and 12.7.2010. The learned High Court after necessary proceedings dismissed the writ petition and directed the learned Trial Court for deciding the matter within two months, hence this appeal by leave of the Court.
3. Mr. Humayun Nawaz Khan, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the Courts below have fell in error of law and facts while passing the impugned orders. He submitted that the appellant's original suit was for preemption, thus, even there was no necessity of prayed amendment but despite this the plaintiff applied for amendment in the prayer for seeking decree of possession. It is evident from the findings of facts recorded on merits of the case by the Trial Court that preferential rights have been fully established, thus in this state of affairs in case of grant of decree on the basis of right of prior purchase neithr' the amendment seeking decree of possession is necessary nor it is requirement of statutory law. The Courts have not considered the statutory provisions in this regard which resulted into miscarriage of justice. Therefore, the impugned orders are not maintainable.
4. Conversely, Mr. Maqsood Ahmed Sulehria, Advocate, the learned counsel for the respondent No, 3 strongly opposed the appeal on the ground that the possession of the suit property is lying with the respondent, therefore, without seeking relief of decree of possession the plaint of the appellants was not maintainable. The suit has been rightly dismissed by the Court. The application for amendment of the plaint is on the face of record contradictory and makes the suit self-destructive.
Such-like amendment cannot be granted. Therefore, there is no illegality in the impugned judgment and this appeal has no substance.
5. We have considered the arguments of learned counsel for the parties and also examined the record made available. We have also gone through initial judgment recorded by the Trial Court and subsequent judgments regarding the issue of amendment. The perusal of pleadings of the parties clearly reveals that basically it was the suit on the basis of right of prior purchase and mere phrase of declaratory right does not make it declaratory suit. In this regards, the title of the suit and specially the prayer clause is very much clear wherein the plaintiff has prayed for grant of decree on the basis of right of prior purchase. The Trial Court only framed two issues; one whether the plaintiff has right of prior purchase; and whether the market price of the land is Rs, 12,000/- and the same has been paid or not. The issue regarding right of prior purchase has been decided in favour of plaintiff, however, admittedly the suit has been finally dismissed on the ground that under Section 42 of the Specific Relief Act, the prayer of consequential relief of possession has not been made. Subsequently, an application in the first Appellate Court for amendment in the prayer for seeking decree of possession was also filed and the case was remanded. In second round of litigation, from the Trial. Court upto the High Court, the issue of amendment in the plaint has been attended by the Courts and all the Courts have declined to grant the permission of amendment in the plaint. Regrettably, all the Courts below have fell in error of law and have not bothered to appreciate the statutory provisions regarding the pre-emption suit. Under Order XX, Rule 14 of CPC it is the duty of the Court to grant decree of possession on establishment of rights of preemption.
Clause (b) of sub-rule (1) of Rule 14 speaks that on payment of decretal amount (purchase- money) alongwith costs (if any), the defendant shall deliver the possession of the property to the plaintiff whose title thereto shall be deemed to have accrued from the date of such payment. Thus, in our considered view, in view of this clear statutory provision the pre-emption suit cannot fail mere on the ground that in the plaint prayer for possession has not been made. This Court in the case titled Safdar Hussain Butt Vs. Ch. Muhammad Azam and others (Civil Appeal No, 59 of 2012, decided on 29.1.2014) while attending the identical proposition has observed as follows:-- "6. We have considered the arguments of the parties and also perused the record carefully. The first objection of the appellant regarding failure of the respondent-plaintiff to the pray for possession of the land appear to be misconceived for the brief reason as perusal of the plaints reveal that it has been clearly written in the title of the plaint:- ' Even otherwise, this objection has no substance as according to the statutory provisions of Order XX, Rule 14 of Civil Procedure Code, it is duty of the Court while granting decree in pre-emption suit the day on or before which the defendant was delivered possession of the property to the plaintiff.
Thus, this objection is totally unfounded and has no substance which stands repelled."
' The observation of the Trial Court that without seeking consequential remedy of possession the suit is not maintainable under the provisions of Section 42 of Specific Relief Act is uncalled as the instant suit is clearly of preemption suit. Mere insertion of words (URDU) does not bring it within the purview of Section 42 of Specific Relief Act. The term "pre-emption suit" is basically a suit for possession. In this regard reference may be placed on the judgment reported as Ilahi Bakhsh and others Vs. Mst. Bilqees Begum (PLJ 1985 SC 475), wherein the apex Court of Pakistan has held as follows:- "The term "pre-emption suit" is a suit for possession of a property in dispute on payment of its sale price or market value. A decree enforcing the pre-emption right must direct the vendee to deliver possession of the property to the pre-emptor plaintiff on condition and subject to the plaintiff paying the sale price or market value of the property in Court for the benefit of the vendee (vide Order XX, Rule 14, C.P.C.)."
6. Even otherwise, the judgments of the Courts below regarding the amendment are not strictly according to the statutory provisions as well as principle of law laid down by this Court. In the declaratory suit when initially the prayer of possession is not made subsequently seeking such amendment due to subsequent events does not make the suit self-contradictory or amounts to new cause. Neither mere delay in applying for amendment is a reason. This Court while dealing with the factual proposition of seeking amendment of possession in the suit which was of adverse possession in the case reported as Alam Din alias Alam Sher and others Vs. Alam Din (PLD 1990 SC
(AJK) 1) has almost attended all the aspects including the delay in applying for amendment, etc., and observed as follows:- "22. There is a host of case-law on the point. The critical survey of the case-law makes it clear that leave to amend the pleadings should always be granted at any stage in the proceedings but such amendment can only be allowed for resolution of the real question in controversy. There is no other embargo.
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25. After giving our dispassionate though 4 to the arguments advanced at the bar we feel that generally delay alone in applying for amendment after expiry of the period of limitation is not a ground for refusing an amendment in the plaint. Each case, however, depends upon the circumstances that it carries. Be that as it may, delay alone in applying for amendment cannot be a determining factor for deciding the application under Order VI, Rule 17, Code of Civil Procedure.
Use of expression "at any stage of proceedings in Rule 17 is not without significance. The word "proceedings" is to be interpreted in a liberal manner so as to give the proper scope to the rule in accord with its purpose, including the appellate stage and that too upto the Supreme Court.
26. We feel that the above interpretation is in accord with the mandatory language used in Order VI, Rule 17 to The effect that "all such amendments shall be made as may be necessary for the, purpose of determining the (real question in controversy". Therefore, our view is that once the Court decides that the amendment is necessary for the said purpose of determining the real question in controversy the amendment is to be allowed.
' What has been stated above, however, is subject to a very important condition that the nature of the suit insofar as its cause of action is concerned is not changed by the amendment.
27. Coming to the merits of the present case, as said in the application for amendment, the facts on which the respondent-plaintiff relied in the amendment application would not make any substantial change in the plaint. If it is held that the adverse possession has matured into title in the year 1983, then dispossession of the land can be restored to the plaintiff because the doctrine of lis pendens would apply with all force to the present case."
' For the above-stated reasons, the impugned judgment of the High Court and that of Courts below are not consistent with the statutory provisions of law as well as principle of law enunciated by this Court. Therefore, while accepting this appeal the impugned judgments are set aside and the Trial Court is directed to decide the suit on merit. In case the right of prior purchase is established the Trial Court shall decide the case on merit keeping in view the statutory provisions of Order XX, Rule,14 of CPC.
' This appeal stands accepted in the terms indicated above.