' The dispute relates to landed property which was originally owned by one Sher Muhammad son of Wahab, caste Awan of village Mardowal, Tehsil Khushab. The said Sher Muhammad died before the establishment of Pakistan and the land left by him was mutated under custom in the name of his widow Mst. Naik Bakhat as a limited female holder, In 1975, through Mutation No, 2529 the land left by Sher Muhammad was mutated to the extent of /4th share in favour of Mst. Naik Bakhat aforesaid, his widow and the remaining 3/4th in favour of his brother Fateh Khan alias Fatta (petiti ner herein), according to Muslim Personal Law (Shariat).
2. In February, 1980 Mst. Sahib Khatun and Sat Bharai who claim themselves to be the daughters of the aforesaid Sher Muhammad filed a declaratory suit seeking a declaration to the effect that being daughters of Sher Muhammad, the last male holder, they (Sahib Khatun and Sat Bharai) were owners in possession of the land left by Sher Muhammad to the extent of 2/3rd share and Mutation No, 12529, dated 21-10-1975 was wrong, illegal and based on fraud. As a consequential relief, a decree for perpetual injunction was also sought to the effect that Fatta etc. Should not interfere with the ownership and possession of the plaintiffs over the land in dispute.
3. In paragraph 2 of the plaint, it has been pleaded that Mutation No, 12529, dated 21-10-1975 was wrongly attested as incorrect pedigree-table was produced and that the plaintiffs viz. Sahib Khatun and Sat Bharai who were daughters of the last male-holder were not shown as such and certain other heirs were also not shown and thus mutation was got attested wrongly as a result of fraud and collusion which was illegal, void and ineffective qua the rights of the plaintiffs. In paragraph 3 of the plaint, a pedigree-table has been shown according to which Mst. Sahib Khan of and Sat Bharai have been shown as daughters of Sher Muhammad son of Wahab. Fatta etc., the defendants, who are petitioners herein, filed written statement dated 6-2-1981 whereby they resisted the suit of Sahib Khatun etc. In para. 2 of the written statement, it has specifically been pleaded that Mst. Shahib Khatun and Sat Bharai were not daughters of Sher Muhammad son of Wahab and were daughters of another Sher Muhammad who was son of Bahar All alias Ali, who died in June, 1947. It was also contended that inheritance mutation of the said Sher Muhammad son of Bahar Ali was attested on 31-7-1947 vide No, 7609. It was thus urged that Sahib Khatun and Sat Bharai were not heirs of Sher Muhammad son of Wahab whose only heirs were Mst. Naik Bakhat and Fatta.
4. In paragraph 3 of the written statement, however, the pedigree-table as shown, in paragraph 3 of the plaint, has been accepted as correct.
5. On 4-7-1981, the petitioners herein, submitted an application before the learned trial Court under Order VI, rule 17, of the Code of Civil Procedure, seeking amendment in the written statement so as to incorporate in paragraph 3 of the written statement that the pedigree-table as shown in paragraph 3 of the plaint was incorrect. It was pleaded in the application for amendment of the written statement that actually the petitioners had instructed their counsel to allege the pedigree- table as shown in paragraph 3 of the plaint was not correct but on account of clerical mistake instead of writing the words it was recorded " {{URDU TEXT}} ' The word `01' was omitted. The petitioners who were illiterate thumb-marked the written statement. The moment they learnt about this clerical error, they filed application for amendment in the written statement before the commencement of the evidence of the parties before the learned trial Court.
6. Petitioners' application for amendment of the written statement was vehemently opposed by the respondents and the learned trial Court vide its impugned order dated 7-9-1981 rejected the petitioners' application for amendment of the written statement on the ground that the amendment as prayed for by the petitioner amounted to deletion of an admission of facts which was not permissible.
7. The petitioners went in revision before the learned District Judge, Khushab. He too vide his judgment dated 11-11-1982 upheld the order of the trial Court and dismissed the Revision Petition of the petitioners.
8. The aforesaid orders passed by the learned Civil Judge, Khushab and the learned District Judge, Khushab, have now been assailed by invoking the writ jurisdiction of this Court.
9. It has been contended on behalf of the petitioner that the amendment in the written statement which has been refused through the impugned orders was sought for at a very early stage and prior to the commencement of the parties evidence. The proposed amendment was based on bona fides and aimed at correction of a clerical error. The amendment as prayed for is likely to alter the character of the suit in any manner. It has thus been urged that such an amendment should have been allowed by the learned trial Court in exercise of its jurisdiction under Order VI, rule 17, C. P. C. As it was necessary for the purpose of determining the real question in controversy between the parties.
10. On behalf of the respondents, it has been argued that in paragraph 3 of the written statement, the petitioner has admitted the claim of the respondents inasmuch as he has accepted the pedigree-table as shown in paragraph 3 of the plaint wherein Mst. Sahib Khatun and Sat Bharai have been shown as daughters of sher Muhammad son of Wahab deceased. It has, therefore, been averred on behalf of the respondents that the proposed amendment, if allowed, would take away the admission of the petitioners which has come on the records and the respondents would be deprived of the benefit which has acrued to them on account of this admission. Such amendment cannot lagally be allowed.
11. Reliance on behalf of the respondents has been placed on Secretary to Government of West Pakistan, Department of Agriculture and Forest and 4 others v. Qazi Abdul Kafil (1). In this case, the Supreme Court approved the decisions of the High Court and the trial Court whereby permission to amend the written statement was refused which sought to enable the applicant to withdraw the admission made in the written statement. In Executive Engi. Neer 5th Provincial Buildings, Lahore v.
Messrs Combined Trader, Lahore (2), it was held that the question whether the respondents could be permitted to amend their pleadings was within the discretion of the trial Court, exercise of such discretion cannot be interfered with unless discretion has been exercised perversely.
12. In the circumstances of the under consideration case, the contents of paragraph 3 of the written statement cannot be considered to be an admission made on the part of the petitioners particularly when such contents are appreciated in the light of what is contained in paragrah 2 of the written statement. As already stated above, in paragraph 2 of the written statement, the petitioner specifically pleaded that Mst. Sahib Khatun and Sat Bharai, respondents were not daughters of Sher Muhammad son of Wahab but were daughters of some other Sher Muhammad who happened
(1) PLD 1978 SC 242 (2) 1980 SCMR 1961 ' to be son of Bahar Ali alias Ali and had died in June, 1947. Thus in paragraph 2 of the written statement, the petitioners fully controverted the allegations of the respondents that they were daughters of Sher Muhammad son of Wahab. In paragraph 3 of the written statement of course pedigree-table, as shown in paragraph 3 of the plaint, has been admitted to be correct but it has been explained in the application for amendment of the written statement submitted by the petitioner that they instructed their counsel that the pedigree-table shown in paragraph 3 of the plaint was incorrect but on account of clerical error instead of writing that the pedigree-table shown in paragraph 3 of the plaint was not correct, it was written that the pedigree-table shown in paragraph 3 of the plaint was correct. The word `not' was thus omitted on account of clerical error.
It the contents of paragraph 3 of the written statement are seen and appreciated in the light of the contents of paragaph 2 of the written statement, the petitioners' plea of clerical error is fully supported.
13. In this view of the matter, it cannot be said that the proposed amendment aimed at taking away the admission already made by the petitioners in the written statement. In Bahadur Shah and 2 others v. Sharif and 9 others (1), it was held :- "In fact, the policy of law in allowing an amendment necessary for the determination of the rights of the parties, is very liberal."
' In this case, it was also held that such an amendment could be allowed at any stage of the proceedings and the plea that the application for amendment was belated has no force. In Mst.
Fatima v. Sardara (2) it was held that defect in the pleadings on account of clerical errors should readily be allowed to be correct under Order VI, rule 17, C. P. C.
14. In this case, as already observed, the proposed amendment did not aim at the withdrawal of the admission allegedly made by the defendants in the written statement but it proposed to rectify a clerical mistake. Such an amendment should have been allowed under Order VI, rule 17, C. P. C.
The learned trial Court and the learned District Judge were thus not justified in not exercising the jurisdiction in favour of the petitioners by allowing him to correct the clerical mistake through amendment in the written statement.
15. On the authority of Abdur Rehman Bajwa v. Sultan and 9 others (3) it has been contended on behalf of the respondents that in exercise of writ jurisdiction, this Court could not interfere even if the impugned judgments were found to be incorrect, In the precedent case, it was held that Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter, has the jurisdiction to decided it rightly or wrongly and the mere fact that the decision was incorrect or was such as to which High Court would not have arrived at, does not render the decision without jurisdiction. The authority relied upon on behalf of the respondents, is distinguishable on facts because in the under consideration case, the learned trial Curt and the learned District Judge have failed to exercise jurisdiction vesting in them under Order VI, rule 17, C. P. C. In case of such a failure, High Court can competently interfere in exercise of its constitutional jurisdiction. In Muhammad Siddique Khan v. Allah Yar Khan and 4 others (4) it was held :- "Since the proposed amendment neither changed the cause of action nor amounted to set up of a new by the petitioner, the learned trial
(1) PLD 1973 Lah. 513 (2) PLD 1956 (W. P.) Lah. 474
(3) PLD 1981 SC 522 (4) 1982 CLC 513 ' Judge and the learned Additional District Judge have failed to exercise jurisdiction under Order VI, rule 17, C. P. C. It is a fit case for interference by this Court in the exercise of its constitutional jurisdiction."
16. In the light of the foregoing conclusions, this Writ Petition is allowed, the impugned orders passed by the learned Civil Judge, Khushab and the learned District Judge, Khushab, are declared to have been passed without lawful authority and of no legal effect. The petitioners are allowed to amend the written statement as prayed for by them in their application dated 4-7.1981 on payment of Rs, 200 as costs. The amended written statement shall be filed before the learned trial Court within 30 days from today. No orders as to costs.
17. Copy of this judgment shall be dispatched to the learned trial Court immediately.