This writ petition challenges the order of Mr. Sibtain Raza Naqvi, Addi--tional District Judge, Sheikhupura by which he allowed a revision petition of the respondents against the dismissal of their application for amendment of the plaint.
2. Five vendors sold an area of 523 kanals and 5 marlas to Khadim Ali Shah, Syed Shabbir Hussain Shah, Syed Munir Hussain Shah and Syed Murad Ali Shah sons of Syed Asghar Ali Shah by a registered sale deed dated 15-4-1974. A suit for pre-emption was filed on the 4th of April, 1975 by respondents Nos. 2 and 3. This suit was filed against (1) Syed Khadim Ali Shah, son of Syed Munir Hussain Shah (2) Syed Munir Hussain Shah, (3) Murad Ali Shah sons of Syed Asghar Ali Shah. The name of the 4th vendee, namely Syed Shabbir Hussain Shah was totally omitted and the parentage of Syed Khadim Ali Shah was given incorrectly as Syed Munir Hussain Shah. The defendants-petitioners filed their written statement on the 8th of July, 1975 in which they pointed out the error in the parentage of Syed Khadim Ali Shah and the omission of the name of Syed Shabbir Hussain Shah from the array of defendants. It was almost after about 3J months that an application was submitted by the said respondents for amendment of their plant under Order VI, rule 17, C. P. C. It was explained that the mistake in the parentage of defendant No. 1 was on account of the word. It further appears from the application that the respondents' case was that they had incorrectly written the name of Syed Shabbir Hussain Shah as father of Syed Khadim Ali Shah.
Claiming that it was a case of clerical error, permission was sought to correct the plaint so as to correct the parentage of Syed Khadim Ali Shah and to put serial No. 2 against the name of Syed Shabbir Hussain Shah. Again another application was filed on the 17th of January, 1976 in which further permis--sion was asked for to correct the name of Shabbir also by putting dots. This application appears to have been given since the name of Syed Shabbir Hussain Shah was not at all recorded in the plaint. It was the name of Syed Munir Hussain Shah which was written in the place reserved for parentage of Syed Khadim Ali Shah.
3. The two petitions were resisted by the petitioners and were dismissed by the learned trial Court by its order dated 20-9-1976 on the grounds that (1) valuable right had accrued to the defendants and (2) the plaintiffs who were claiming a right of piratical nature, should have come, to the Court with open eyes and it was an improbability that they could in--advertently omit the name of one of the vendees and give erroneous parentage of the defendants. The learned Court, therefore, held that this was not due to sheer clerical mistake but it was a case of negligence. He further held that the equity does not help an indolent but could help only the vigilant.
4, The learned Additional District Judge in revision found that the name of Munir Hussain Shah was written as a parent of defendant No. 1. From it follows that he had come to the conclusion that the name of Syed Shabbir Hussain Shah was not at all written. However, in the facts given in para. 4 of the order he held that Syed Hussain Shah was written incorrectly in place of Syed Shabbir Hussain Shah which was required to be corrected. He criticized the judgment of the learned trial Court on the ground that unintentional omissions could be made by human beings and such omissions could not be called irresponsible acts. He held that the pre-emptor---s had acted in a vigilant manner as they came forth with the application for amendment "at the initial stage of the trial". He also observed that there could be no discrimination between the proce--dure in a suit of pre- emption or any other suit. Ultimately he found that the learned trial Judge had exercised his discretion with material irregularity "in disallowing the amendment prayed for by the pre-- emptors".
5. The point in this case is whether in the circumstances given above the learned Additional District Judge had acted within the ambit of section 115, C. P. C. And found any jurisdictional defect in the order of the learned trial Court. The learned counsel for the respondent justified the revisional order on the basis of Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (PLD 1973 Lah. 513) and Bahadur Shah and 2 others v. Sharaf and 9 others (PLD 1973 Lah. 513). He further argued that the High Court cannot interfere with the order of the learned Additional District Judge unless it is found that the order is without lawful authority, which means that it suffers from any jurisdictional defect. On merits also he tried to justify the order of the learned Additional District Judge.
6. Section 115, C. P. C., provides that the order can be set aside or interfered with by the High Court only, (1) if the Court below had exercised jurisdiction not vested in it by law ; (2) to have failed to exercise jurisdic--tion so vested and to have acted in the exercise of the jurisdiction illegally and with material irregularity.
7. The first two grounds will certainly not apply to the facts of the present case. So far as the third ground is concerned, it was necessary for the learned Additional District Judge to find out whether the learned trial Court had acted illegally or with material irregularity in the exercise of it jurisdiction. Simple material irregularity is not sufficient since it is in case o only a jurisdictional defect that the Additional District Judge could inter--fere with the order of the learned trial Court.
The order was not, therefore, within the ambit of section 115. C. P. C, and consequently it can be inferred without any shadow of doubt that the learned Additional District Judge has acted without any jurisdiction and his impugned order was passed without lawful authority.
8. The learned Additional District Judge has in fact acted as an appellate Court. He found that the name of Syed Shabbir Hussain Shah was not at all recorded in the plaint. What was recorded, was the name of Munir Hussain Shah as parent of Syed Khadim Ali Shah. In these circumstances it was clear case of omission of the name of Syed Shabbir Hussain Shah. Under section 22 of the Limitation Act, the amendment if allowed would not be effective retrospectively but will take effect from the date on which the amendment is permitted to be made. In these circum--stances if the name of Syed Shabbir Hussain Shah is allowed to be added, the suit of the plaintiff against him would be barred by time. This aspect of the case has not been considered by the learned Additional District Judge also, although there is an indirect approach to that effect in the order of the learned trial Judge, wherein reference is made to valuable rights acquired by the defendants.
9. The learned Additional District Judge has drawn an inference of variance merely from the fact that the application for amendment was made before the issues were framed. He has, however, missed the point that although the objection was raised specifically in the written statement, but it was 3J months after the written statement was filed, that the application for amendment was submitted. If the plaintiffs had been vigilant they would have at once tried to correct any clerical error in the plaint. They should be considered to be aware of the legal position that Shabbir Hussain Shah not being party, the suit against him had already become barred by time and if they did not rush immediately to the Court after their attention was drawn to the alleged error in the plaint, the discretion under Order VI, rule 17, C. P. C., could not be exercised in their favour.
10. The observation of the learned Additional District Judge about the difference between a suit based on a right of piratical nature and any other suit is unexceptionable. The learned trial Court had disallowed the amendment petition not on the ground that it was a matter pertaining to the right of piratical nature, but because the respondents had no right to seek the amendment. The learned trial Court had merely made an observa--tion that persons who were coming to the Court on the basis of such .a right, are expected to be more vigilant. Seen in this view of the matter, this observation was also uncalled for. The learned Additional District Judge had not acted within his jurisdiction in interfering with the order of the trial Court.
11. The authorities relied upon by the learned counsel are distinguish--able. In the Supreme Court case, the parties had waited to see whether the suit under section 42 of the Specific Relief Act was competent or not. It was after that they were expected to file an application for amendment. It was in these circumstances that it was held that there was no delay in the submission of application for amendment. The facts of the Lahore case are also distinguishable since in that case it was found that though there was some omission of Khasra numbers, actually the entire property had been included in the plaint. These authorities are, therefore, not applicable to the facts of this case. I allow this petition with costs and declare the order of the learned Additional District Judge as having been passed without lawful authority with the result that the order of the learned trial Court will hold the field.