' This petition for revision is directed against the judgment of the learned District Judge, Abbottabad dated 7-1-1982, whereby the appeal of respondent No, 1 was accepted and the judgment and decree of the Civil Judge, Abbottabad dated 25-10-1980, dismissing the suit of respondent No, 1 on the ground of partial pre-emption, was set aside.
2. Gulistan respondent No, 1 sought pre-emption of the land measuring 154 kanals 18 marlas comprised in seven Khasra Nos. Situated in village Bamochi Khurd, Tebsil Abbottabad. The sale having been effected by the decree of the Civil Court in Suit No, 156/1 decided on 10-10-1978 and subsequent Mutation No, 1035 attested on 2-11-1978. In the original plaint filed on 21-12-1978 although, the area sold was described as 154 kanals 18 marlas comprising of seven fields but instead , of mentioning all the seven Khasra Nos. Only Khasra Nos. 683, 687/1, 710, 868, 953 were mentioned and it appears that Khasra Nos. 869 and 686 were omitted. However, in the written statement filed by petitioner No, 1 on 20-2-1979 the specific plea of partial pre-emption was not raised by him. On 30-9-1980 the plaintiff-respondent applied for impleading certain subsequent transferees of the land as parties to the suit and having been allowed to do so by the trial Court, he put in the amended plaint on 19-5-1979 wherein again the land sold was correctly described as 154 kanals 18 mar/as comprising of seven fields and besides the five Khasra Nos. Already mentioned, Khasra No, 869 was also added. But again Khasra No, 686, which was also the subject-matter of the sale was omitted and instead Khassa No, 12 was mentioned. To this amended plaint no written statement was filed by Muhammad Ashraf petitioner No,
1. However, Gul Zaman petitioner No, 2 (who was subsequently impleaded as party) submitted his written statement on 5-3-1980 wherein he specifically raised the plea of partial pre-emption.
3. The evidence in the trial Court was yet to be recorded when Gulistan plaintiff-pre-emptor put in an application on 30-9-1980 seeking permission for adding Khasra No, 686 is the plaint as it was allegedly omitted because of clerical mistake and/or inadvertence. In the application it was stated that the plaintiff had correctly described in the plaint the area which was the subject matter of the sale and had also mentioned that it comprised of seven fields but by an oversight/clerical mistake only six Khasra Nos. Instead of seven were mentioned in the plaint. This application was contested by the defendants-petitioners mainly on the ground that period of limitation for pre-emption having been expired on 1-11-1979, the application able was not entertainable particularly when a valuable right had accrued in their favour. The learned trial Court refused the prayer for the amendment of the plaint on the ground that omission to mention Khasra No, 686 in the plaint was intentional and not by clerical mistake or inadvertence. Besides dismissing the application for the amendment of the plaint, the learned trial Court also dismissed the suit on the ground of partial pre-emption. However, on appeal the learned District Judge came to a different conclusion, and held that the emission to mention Kbasra No, 686 in the plaint was the result of inadvertence and the defect being of formal nature, the plaintiff should have been allowed to amend the plaint, particularly when the area sold and the number of the fields sought to be pre-empted were correctly mentioned in the plaint. The learned District Judge did not agree that it was a case of partial preemption with the result that the appeal of the plaintiff-pre-emptor was accepted and the judgment and decree of the trial Court was set aside.
4. The learned counsel for the petitioner urged that it was a case of deliberate omission and negligence on the part of the plaintiff and the finding of the learned District Judge to the contrary was erroneous and thus liable to be reversed. He referred to the statement of the plaintiff preemptor, recorded in the trial Court on 4-1-1979,wherein he stated that he restricted his claim of pre-emption to Khasra No, 686 only and did not wish to press his claim regarding the remaining Khasra Nos. Thus it is urged that Khasra No, 686 having not been included in the plaint at that time, the plaintiff's suit ought to have been dismissed because it was on 30-9-1980 that the application for inclusion of Khasra No, 686 in the plaint was put in by the plaintiff-preemptor, on which date the period of limitation for the pre-emption suit having been expired, the plaintiff-pre-emptor should not have been allowed to amend the plaint at that belated stage. The learned counsel relied on Hashmat Ali v. Sheikh Hafeezullah etc. but in the said case the plaint in a pre-emption suit set- forth only the land as the item of property to be pre-empted whereas the sale in question embraced besides the land, baghicha and houses as well, and thus in the circumstances it was held that the question of inadvertence was a question of fact, and as the onus to prove the fact of inadvertence was on the plaintiff and as he had failed to establish that fact, the Court should not have allowed the amendment in the plaint, The learned counsel then referred to the case of Shah Muhammad and others v. Hayat and another.
' Wherein it was observed that :- "Whether or not amendment of pleadings should be allowed must depend on the circumstances of each case and this is why discretion has been given to Courts to allow or disallow amendments. If, for example, the mistake to be rectified is of a technical character, Courts will not be slow to allow amendment in order that justice between the parties may not be defeated for a mere technicality.
Lf, however, the amendment will change the entire complexion of the suit, Court will be slow to allow the amendment unless such special circumstances exist which make the amendment necessary."
' It may be mentioned that this was a case in which the plaintiff sought to amend the plaint and to substitute new grounds in the suit, which he had earlier omitted to mention, and thus in the circumstances the prayer for amendment was refused. It is obvious that the precedent case is1 2 distinguishable and not applicable to the facts of the present case. The learned counsel also referred to Samar Qand and another v. Muhammad Yunis wherein it was held that :- "If in a suit for pre-emption the plaintiff intentionally sues for less land than is covered by the sale, he loses the right of pre-emption. ' Partial pre-emption is not at all allowed. The rule of partial pre- emption is so stringent that its non-observance is always fatal for the suit."
' But in the cited case the plaintiff had sued for possession by pre-emption of the suit land only without the share of Shamilat sold alongwith it. In the circumstances of the case it was held that share in Shamilat land is separate entity and is in itself landed property and as the plaintiff had not specifically sued for the share of Shamilat land also, his suit was incompetent and he deserved to be non-suited on that ground.
5. None of the authorities cited by the learned counsel for the petitioner lend support to the question in controvesy in the present case. It is obvious that it was not a case of deliberate omission or inadvertence on the part of plaintiff-pre-emptor but rather it was a case of misdescription of a Khasr No, i,e, instead of Khasra No, 686, by inadvertence Khasra No, 12 was inserted in the plaint. Although the area ought to be pre-empted was correctly mentioned and it was specifically stated in the plaint that land comprised of seven fields. Thus it can be said that it was a case o incorrect reproduction of a Kbasra No, in the plaint. It was clearly stated in the plaint that the pre-emptor intended to pre-empt the entire land which had been the subject matter of Suit No, 156/1 decided on 10-10-1978, and Mutation No, 1035 attested on 2-11-1978. In these circumstances the objection of the learned counsel that it was a case of partial pre-emptions obviously not tenable. In Mst. Fatima v. Mst. Sardara, it was held that "incorrect reproduction in plaint of the Khasra Numbers, which were the subject-matter of the suit, was a defect of a very formal nature, while correct Khasra Nos. Bad been set out in the deed of gift, the basis of the suit, and while the Khata No, were correctly mentioned in the plaint itself. Such a defect should be allowed to be corrected in Court without an adjournment." In the case of Bahadur Shah v. Sharaf it was held that :- "It is obvious that the trial Court has not considered the fact that the entire area sold has been shown in the plaint and Khata Nos. Have also been correctly shown and by way of abundant caution, the plaintiff has given the above note so that the suit may not, on account of any error, be deemed to suffer from the defect of partial pre-emption. The trial Court, has, therefore, acted illegally and with marerial irregularity in the exercise of its jurisdiction by refusing to allow the amendment which was only a formal one."
It is obvious that the sale sought to be pre-empted in the present case was effected by a Court decree in Suit No, 156/1 decided on 10-10-1978 which was also given effect subsequently in the revenue record by Mutation No, 1035 c attested on 2-11-1978. The plaintiff in the plaint has specifically mentioned that he intended to pre-empt the entire area thus. Sold and it was also stated that the area sold comprised of seven fields, but through inadvertence and/or clerical mistake Khasra No, 686 was omitted and instead Khasra No, 12 was inserted in the plaint. In these circumstances the principle of partial pre-emption I wholly inapplicable and the defect i,e,, the non-inclusion of Khasra No, 68 in the plaint, being of a formal nature could be allowed to be corrected. Under the provision of Order VI, rule 17, C. P. C., the Court is competent t allow amendment, at any stage of the proceedings for the purpose of determining the real question in controversy between the parties. The real purpose of allowing amendment is to secure proper administration of justice and it is of imperative necessity that the Courts should, as far as possible, try the cases on merits. It is obvious that the aforesaid rule fully covers the amendment sought in the present case.
6. In view of the authorities cited above, the application for amendment was rightly allowed by the learned District Judge, and no exception can be taken thereto. The judgment and decree of the3 4 5 trial Court, dismissing the suit for partial pre-emption, suffered from material irregularity in the exercise of jurisdiction, and has rightly been set aside by the learned lower ' Appellate Court. Thus in the circumstances, the judgment of the learned Lower Appellate Court is maintained and the revision petition is dismissed with no order as to costs. PLD 1956 B J 33 .
PLD 1960 Lah. 975 PLD 1972 Pesh. 115 PLD 1956 Lah. 474 PLD 1973 Lah. 517