ALI BAIG, J. I intend to dispose of these two revision petitions bearing C Rev. No. 04/2018 and C Rev. No. -05/2018 by this single judgment as identical question of law and facts are involved in both the revision petitions, parties are same and suit property is also same.
2. Through the Civil Revision Petition No. 04/2018, the petitioner has called in question the impugned judgment/decree dated 16-10-2017 passed by the Learned Additional District Judge Gilgit, whereby the learned 1st Appellate Court has dismissed an application filed under Order VI, Rule 17, C.P.C. by the present petitioner/plaintiff for amendment in the plaint. Whereas, through Civil Revision Petition No.05/2018 the petitioner/plaintiff has challenged the impugned judgment/decree dated 20-10-2017 passed by the learned Additional District Judge Gilgit whereby the learned 1st Appellate Court has dismissed the civil 1st appeal of the petitioner/plaintiff by maintaining the judgment/decree dated 02-9-2016 passed by the learned Civil Judge 1st Class Danyore. Both the above mentioned revision petitions shall be disposed of through this consolidated judgment.
3. Brief facts relevant for disposal of the instant revision petitions are that the present petitioner/plaintiff namely Doulat Nazir filed a pre emption suit against the respondents/defendants in the Trail Court qua sale of a shop under khasra No. 239 situated at Mouza Danyore Amphary Tehsil Danyore District Gilgit fully described in' ding of plaint claiming that the respondent No.1 has sold a shop under under khasara No. 239 constructed on the land measuring .1 maralas situated at Amphary Dinyoure to the respondent/defendant 2 through mutation No. 2401 attested on 02-2-2010. The plaintiff/petitioner has claimed superior right of pre-emption on the basis of contiguity and participation in the amenities/appendages attached to the same property.
4. The present petitioner being defendants in the suit contested the suit by way of filing of their written statement in the Trial Court wherein they have raised certain legal objections and have also repudiated the averments of plaint.
5. On the basis of divergent pleadings of the parties the learned trial court framed necessary issues and after framing of issues the learned Trial Court heard arguments on behalf of both the parties on the maintainability of suit and had rejected the suit/plaint of the petitioner under Order VII, Rule 11, C.P.C. vide order/ judgment dated 02-9 2016, which was challenged before the learned Additional District Judge Gilgit through a civil 1st appeal.
6. During pendency of civil 1st appeal before the 1st Appellate Court, the petitioner had filed an application under Order VI, Rule 17, C.P.C. for certain amendments in the plaint, which was dismissed by the learned 1st Appellate Court vide order/judgment dated 16-10-2017. The petitioner has challenged the aforesaid order of 1st Appellate Court before this court through Civil Revision Petition No. 04/2018 and later on the learned Additional District Judge Gilgit has also dismissed the civil 1st appeal of the petitioner/ plaintiff vide judgment dated 20-10- 2017, which has been challenged before this Court through a separate Civil Revision Petition No. 05/2018.
7. The learned counsel appearing on behalf of the petitioner contended that both the impugned orders/judgments passed by the learned 1st Appellate Court are contrary to law and facts on the record of the case as such the impugned judgments/orders passed by the learned 1st Appellate Court are not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that under the provisions of Order VII, Rule 11, C.P.C. suit can be rejected at initial stage after perusal of contents of plaint by the learned Trial Court but in the instant case the learned Trial Court has dismissed/rejected the plaint of the plaintiff after framing of issues which is not permissible under law. The learned counsel for the petitioner further argued that the learned Trial Court as well as the learned 1st Appellate Court have rejected/dismissed the suit/plaint of plaintiff on the ground that under the relevant provisions of Right of the Prior Purchase Regulations, 1938, no right of prior purchase shall exist in respect of sale of shop, serai, or market or some other property used as place for transaction of public business but the respondents/defendants had not taken this ground/plea in their written statement and Court cannot go beyond the pleadings of the parties while deciding the case/matter. The learned counsel for the petitioner further argued that the petitioner had sought some minor amendment in the suit through an application under Order VI, Rule 17, C.P.C. in the Court of learned Additional District Judge Gilgit by deleting word disputed shop and adding disputed land measuring 1.1/2 maralas in the plaint and the learned 1st Appellate Court has wrongly dismissed the aforesaid application of the petitioner.
8. Conversely, the learned counsel for the respondents Nos.1 to 3 and the leaned Additional Advocate General vehemently controverted the argument advanced by the learned counsel for the petitioners and supported the impugned judgments/orders passed by the learned 1st Appellant Court and Trial Court by contending that the suit of the plaintiff/petitioner and application filed under Order VI, Rule 17, C.P.C. were not maintainable in the eye of law, therefore, the learned Courts below have rightly rejected/dismissed suit of the petitioner and petition of the petitioner vide the impugned judgments/orders which may be maintained.
The learned counsel for the respondents further argued that the petitioner/plaintiff had filed the suit for possession of disputed shop through pre-emption and the petitioner wants to replace/substitute words shop by adding suit land through amendment to fill up the lacunas in the plaint which is not permissible under law.
9. I have given my anxious consideration to the arguments advanced by the learned counsel for parties and with their valuable assistance have gone through the record.
10. Admittedly the petitioner/plaintiff has instituted a suit for possession of suit shop through pre-emption on the basis of contiguity and participation in the amenities attached to the suit shop but Section 5 of Right of Prior purchase Regulation, 1938 provi des that no right of prior purchase shall exist in respect of the sale of a shop, serai or market or some other property use as a place for transaction of public business. The suit of pre-emption was filed under the relevant provisions of Right of Prior Purchase Regulation, 1938 and Section 5 of aforesaid Regulation debarred the plaintiff/petitioner to file a suit for possession of a shop through pre-emption therefore, the learned Trial Court has rightly rejected/dismissed the suit under Order VII, Rule 11, C.P.C. During pendency of civil 1st appeal before the learned 1st Appellate Court the present petitioner had filed an application under Order VI, Rule 17, C.P.C. in the Court of learned Additional District Judge Gilgit for amendment in the plaint with the plea that the petitioner intends to delete word disputed shop from the plaint and add the words disputed land measuring 1-1/2 marlas.
Through the aforesaid amendment the petitioner wanted to fill up legal defects/lacunas in the suit which is not permissible under law, hence the learned 1st Appellate Court has rightly dismissed the application of the petitioner filed under Order VI, Rule 17, C.P.C. as if the proposed amendment in the plaint is allowed, it will change the complexion of suit and a new cause of action would be introduced.
11. Moreover, both the parties are follower of Fiqa Jafaria and Section 249(2) of the Muhammadan Law by D.F. Mulla does not recognize the right of the pre-emption on the basis of vicinage, contiguity and participation in the amenities attach ed to the suit property as such the suit of the plaintif f was also not maintainable under Section 249(2) of the Muhammadan Law .
12. The epitome of above discussion is that I am of the firmed view that the order dated 2-9-2016, passed by the learned Trial Court and judgments dated 16-10-2017 and 20-10-2017, passed by the learned 1st Appellate Court are well reasoned and have been passed in accordance with law which require no further interference by this Court in exercising of its revisional jurisdiction. Thus these revisions petitions having no merits are hereby dismissed with no order as to costs. Certified true copy of this judgment be placed on the file of Revision Petition No. 05/2018. File.