' CH. MUHAMMAD IBRAHIM ZIA, J.---This appeal by leave of the Court arises out of the judgment of the High Court dated 15.12.2014 whereby the writ petition filed by. Respondent No, 1, herein, has been accepted.
2. The brief and necessary facts for disposal of this appeal are that the appellant, herein, filed a suit for preemption in respect of the land comprising survey No, 153/154, Khewat No, 38, Khata No, 53 measuring 10 kanal 1 marla, in the Court of Civil Judge; Hajira. During pendency of suit, the appellant, herein, filed an application seeking amendment in the plaint regarding prayer for possession, which was objected by the other side. The learned trial Court, rejected the said application vide order dated 8.4.2011, Against the order dated 08.04.2011 a revision petition was filed before the Additional District Judge, Hajria, which was accepted and consequently application for seeking amendment was allowed vide order dated 29.02.2012. Respondent No, I challenged the wires of the said order through the writ petition before the High Court. The learned High Court vide impugned order while accepting the writ petition, set-aside the order dated 29.02.2012 and restored the order passed by the' Civil Judge, Hajira, hence this appeal by leave of the Court.
3. Sardar Sharnshad Hussain Khan, Advocate, the learned counsel for the appellant after detailed discussion of the facts submitted that the impugned judgment of the High Court is unwarranted.
According to the nature and peculiar facts of the case there is no justification for exercising extraordinary writ jurisdiction. An amendment in the plaint according to the statutory provisions of Civil Procedure Code, has been allowed by Additional District Judge, Hajira. As neither the Additional District Judge passed the order without jurisdiction nor in violation of law, thus, against such like order the writ petition was not competent. Even otherwise, after amendment the forum of Civil Courts was available for the parties, hence, in view of availability of alternate remedy the exercise of writ jurisdiction is also violation of law. He further submitted that according to the peculiar facts as during pendency of the suit the parties' position regarding the possession of the suit land was challenged, hence, the prayed amendment was felt advised. Even otherwise, in the pre-emption suit the prayer of possession is not necessary as on granting decree, it is the duty of the Court to direct for delivery of the possession. Thus, the impugned judgment of the High Court is not maintainable. He also submitted that on this legal proposition this Court his already enunciated the principle of law which is fully applicable. Hence, while accepting this appeal the impugned judgment is recalled.
4. Sardar Muhammad Suleman Khan, Advocate, the learned counsel for the respondent at the very outset very graciously submitted that this Court has already handed down an authoritative judgment in this regard, therefore, he concedes on the law point.
5. We have considered the arguments of learned counsel for the, parties and examined the record made available. Admittedly, the appellant filed a preemption suit and thereafter due to alleged change regarding the possession of suit property, it was felt advised to seek amendment and pray for decree of possession. The amendment was initially refused by the trial Court, however, subsequently the Additional District Judge, Hajira, allowed the same. According to the peculiar facts of this case, the argument of learned counsel for the appellant have substance, as neither the Additional District Judge has passed the order in violation of law nor travelled beyond his jurisdiction, thus, in such situation exercise of writ jurisdiction is uncalled and unwarranted.
6. So far as the nature of the prayed amendment is concerned, it appears mere formability as in pre-emption suit the ultimate relief is delivery of possession of the pre-empted property.. The statutory provision of Order XX, Rule 14 of the Civil Procedure Code, 1908 clearly postulates that on grant of decree of preemption the Court has to direct for delivery of the possession of the property to the plaintiff from the date of payment of the decretal amount. This principle of law has already been enunciated by this Court in an unreported latest judgment titled Shameem Akhtar and others v. District Judge and others (Civil Appeal No, 246/2015 decided on 15.04.2016) wherein it has been observed that:-- "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 regard, 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 C.P.C.
It is the duty of the Court to grant decree of possession on establishment of rights of pre-emption.
Clause (b) of sub-Rule 1 of Rule 14 speaks that on payment of decretal amount (purchase- money) along with 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 v. Ch, Muhammad Azam and others (Civil Appeal No, 59 of 2012 decided on 29.01.2014) 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 pre-emption suit. Mere insertion of words "URDU TEXT" 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 v. Mst. Bilqees Begum PLD 1985 SC 393, 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.)"
' The learned counsel for the respondent has rightly conceded on this proposition in view of the principle of law enunciated by this Court in the referred judgment.. Therefore, while accepting this appeal and setting aside the impugned judgment of the High Court the writ petition filed by the respondent stands dismissed.
' This appeal stands accepted with no order as to costs.