' Agricultural land measuring 81 Kanals 19 Marlas was alienated by one Ali Sher to Jehangir and others through a Registered Sale-Deed, dated 5th April, 1980 for ostensible sale price of Rs, 1,30,000.
Fazal-ur-Rehman pre-empted the sale by filing a civil suit on 1st April, 1981 basing his superior right of pre-emption being owner in the estate. The suit was resisted by the vendees through written statement filed by them. Vendees defendants controverted the averments made in the plaint and denied that the plaintiff had any superior right of pre-emption qua the sale made in their favour.
Necessary issues arising for decision of the controversy were framed by learned trial Judge on 8th March, 1982 and thereafter the suit was adjourned for the plaintiff's evidence. It is stated that only one witness has so far been examined.
2. On 20th March, 1983 plaintiff-pre-emptor moved an application for amendment of the plaint under Order VI, rule 17, C.P.C. To add a new ground in support of his preferential right of pre- emption in the plaint. Permission was sought to incorporate a plea that the plaintiff had a superior right of pre-emption on the ground of being a co-sharer in the land sold also. This petition was seriously resisted by the defendants. Learned Civil Judge vide his order, dated 13th September, 1983 refused the prayer and dismissed the petition seeking amendment in the plaint for adding a new ground in support of right of pre-emption after expiry of period of limitation prescribed for a suit of pre-emption. Fazalur-Rehman plaintiff assailed the order of learned trial Judge in revision. Learned Additional District Judge, Kasur relying on enunciation of law in the case of Bahadur Shah etc. v.
Sharaf Ali and 9 others (I) in exercise of revisional jurisdiction allowed the prayer for amendment vide his order, dated 19th April, 1984.
3. Dissatisfied, the defendants (vendees) have assailed the revisional order in constitutional jurisdiction of this Court with prayer to declare it to have been passed without lawful authority. This constitutional petition was admitted on 13th May, 1984 to regular hearing to examine the contentions as to whether in a suit for pre-emption, plaintiff-pre-emptor can be allowed to amend the plaint to incorporate a new ground of pre-emption after expiry of period of limitation prescribed under law.
4. I have heard learned counsel for the parties and examined the record with their assistance.
Learned counsel for the petitioner has contended that the suit to pre-empt the sale was filed on 1st April, 1981. Written statement disputing the plaintiff's right to pre-empt the sale was filed by the defendants much earlier. Petition for amendment was moved after a lapse of about two years of time to add this new ground of pre-emption. This belated application for amendment could not have been allowed by learned Additional District Judge in exercise of his revisional jurisdiction.
Incorporation of a new ground in support of the right of pre-emption meant a preferment of a new claim which could not be allowed after the expiry of period of limitation. In any case, learned counsel has contended that there was no explanation for this inordinate delay in making an application for amendment to introduce a new ground. Had the plaintiff shown any vigilance or circumspection, it would have revealed to him through the relevant jamabandi of the suit land, the ground which is being sought to be introduced later. Keeping in view the nature of right of pre- emption, the plaintiff was not entitled to any indulgence from the Court. Learned Additional District Judge, therefore, acted with material irregularity in exercise of his jurisdiction in setting aside an order of the trial Court which proceeded on proper consideration of the law. Learned counsel has placed reliance on the case of Rulia Ram v. Ram Chandar Das and others (2) to support his view, point that in a pre-emption suit, amendment to incorporate a new ground of claim after expiry of limitation cannot be allowed. Reliance has also been placed on a judgment of learned Single Judge of this Court in case of Asad Ali Alvi v. Nazir (3) wherein it has been observed that" if a pre- emptor comes to Court and claims preferential right of purchase on two grounds, apprehending defeat he cannot ask for an amendment of his plaint to add another ground ; just like a soldier who goes to battlefield with two guns and fearing defeat cannot ask for quarter to bring for the missile.
He must fight to finish for good or bad. In the present case the respondent-pre-emptor claimed preferential right on the basis of being khewatdar and yakjaddi which qualifications are applicable to suits for pre-emption of agricultural land. The suit property is not agricultural land. It is urban immovable property. The amendment sought to add a new ground of
(1) PLD 1973 Lah. 513 (2) AIR 1933 Lah. 774 (1)
(3) PLD 1982 Lah. 358 ' contiguity so as to make it applicable to the suit property will change the character of the suit. The contention that from the heading of the plaint, nature of the property as urban and its contiguity with the house of the respondent-pre-emptor can be discerned, has no force as in the body of the plaint no statement as regards the nature of property or character of the claim on the basis of contiguity was mentioned. Rather assertions were made differently. Secondly, in the present case it will be seen that the written statements were filed on 6th June, 1979 and issue on the point was framed the same day. The respondent-pre-emptor after producing the sale-deed closed his evidence on 27th January, 1980. It was after six months that the respondent-pre-emptor thought of applying for amendment of his plaint filed a year and half earlier and after more than a year of the written statements filed by the defendant-vendees objecting to the maintainability of the respondents' suits on the ground that on the plaint, no cause of action was shown in respect of the land in dispute because the same was urban residential and was being claimed as if it were agricultural land. The application for amendment was too delayed and the applicant-respondent was negligent. So on merits the application could not be allowed and was rightly rejected by the learned trial Court. The learned lower appellate Court erred in setting aside the order". In this case reliance was placed on a Division Bench Judgment of this Court reported in the case of Shah Muhammad v. Hayat and others (1) and the case of Bahadar Shah etc. v. Sharaf All and 9 others was observed to be distinguishable. This is the latest pronouncement of the Lahore High Court in which the law relating to amendment in a pre-emption suit has been thoroughly discussed.
Learned counsel contended that the learned Additional District Judge acted wholly wrong in placing reliance upon the case of Bahadur Shah etc. v. Sharaf All and 9 others. Learned counsel has also placed reliance upon the rule of law enunciated in the case of Sardar Khan v. Ghulam Sarwar etc. (2) wherein it was observed that in a suit for pre-emption an amendment seeking to introduce a new ground either for substituting or supplementing the qualification of preferential right of pre-emption cannot be allowed after expiry of the period of limitation fixed for filing a pre- emption suit. It is profitable to place on record an abstract from the said report which is as follows : "It is correct that amendment can be allowed at any stage, but this general principle is subject to many just exceptions. It has been averred in the amendment application that it was due to mistake that appellant could not take up the plea that of being co-sharer in the suit land. This cannot be accepted as a valid reason for allowing the amendment because it looks fallacious on the very face of it. The matter with regard to subsequent transfer by gift was at issue between the parties in the trial Court as well as in the lower Court. It cannot be believed that said omission escaped the notice of the appellant in both the subordinate Courts. Obviously, the amendment is sought to avert the consequence of the gift deed which non suited the appellant. The reason assigned for belated amendment application being incorrect, the application is not bona fide. Even otherwise, in a suit of pre-emption, an amendment seeking to introduce new ground either for substituting or supplementing the qualifications for preferential right of pre-emption cannot be allowed after lapse of period
(1) PLD 1960 Lah. 975 (2) PLD 1982 Azad J K 128 ' of limitation prescribed for filing the suit of pre-emption. Because, such an amendment would deprive the defendant of a valuable right which accrued to him by lapse of time. I find support from a case reported as AIR 1933 Lah. 774, wherein an amendment application for introducing a new ground on which the right of pre-emption was claimed, was rejected. It was held in the said case that as the effect of the amendment of the plaint would be to change the ground on which the applicant had claimed his right and would take away from defendant a legal right which had accrued to him by lapse of time, the amendment could not be allowed. In the aforesaid view of the matter, I dismiss the 'amendment application."
5. Learned counsel has contended that the observation of a learned Single Judge in the case of Bahadur Shah and 2 others v. Sharaf Ali and 9 others stating that "I have not been able to find out any authority for the proposition that a pre-emptor cannot be allowed to add a new ground of superiority of his right of pre-emption in the plaint after the expiry of period of limitation. In fact there is authority for proposition that a new ground in support of the relief claimed cannot be said to alter the character of suit and will as a general rule be allowed. It is also established that where in such a case the amendment is allowed it takes effect from the date when the suit was instituted.
The learned trial Judge has exercised its jurisdiction illegally and with material irregularity in this case by exercising its discretion in a capricious and contrary to the principle established by the precedent of the High Court", speaking with greatest respects for deep learning in law of the learned Single Judge are contrary to pronouncements in the cases of Rulia Ram v. Ram Chandar Das and others and Shah Muhammad v. Hayat and others which were not placed before his Lordship for consideration. In both the judgments i.e. In the case of Rulia Ram v. Ram Chandar Das and Shah Muhammad v. Hayat and others, it has been observed that a new ground in support of right of pre-emption after the expiry of period of limitation for a suit of pre-emption cannot be allowed.
6. In view of the precedent case-law referred to in the preceding paragraphs, learned counsel for the petitioner has contended that revisional order passed by learned Additional District Judge runs contrary to the law declared by the superior Courts of the country and as such is without lawful authority. Learned counsel for the respondent (pre-emptor) has placed reliance upon the following cases :
(1) Bahadur Shah and 2 others v. Sharaf Ali and 9 others PLD 1973 Lah. 513 ;
(2) Bashir Khan v. Qaisar Ali Khan and 2 others PLD 1973 SC 507 ;
(3) Muhammad Siddique Khan v. Allah Yar Khan and 1 others 1982 CLC 513.
(4) Ali Hussain v. Ali Ahmad Khan Warsi 1982 CLC 2616.
(5) Muhammad Yousaf and others v. District Judge, Gujranwala and others PLD.1982 Lah.
690. ' to support his contention that powers of amendment vested in civil Court under Order VI, rule 17, C.P.C. Are very wide and are not circumscribed in any manner by considerations arising out of period of limitation fixed for a pre-emption suit. There is no dearth of law on the point that as amendment can be allowed even after period of limitation prescribed for a suit. In the instant case, learned counsel has contended that the omission in the plaint was unintentional and came to light when the statement of the village Patwari was recorded in Court. Therefore, if the learned Additional District Judge has in exercise of his supervisory corrective jurisdiction in revision, allowed amendment to add a new ground in support of the claim already pending, the order cannot be described to be suffering from any illegality or infirmity warranting interference in constitutional jurisdiction. The precedent case law cited on behalf of respondent proceeds on distinguishable facts. The only judgment which comes nearest to the case under consideration is Bahadur Shah and 2 others v. Sharaf Ali and 9 others which has already been referred to in the case of Asad Ali Alvi v. Nazir and was distinguished. Direct authorities on the point under consideration are Rulia Ram v. Ram Chandar Das and others, Shah Muhammad v. Hayat and others, Asad Ali Alvi v. Nazir and Sardar Khan v. Ghulam Sarwar etc. The consensus of judicial opinion therefore, is that in a suit for pre-emption based on certain preferential qualifications plaintiff-preemptor cannot be allowed to add a new ground in support of his preferential right of pre-emption after the expiry of period of limitation fixed under law A for filing a pre-emption suit. Learned Additional District Judge, therefore, without attending to the law laid down by the High Court has in revisional jurisdiction allowed amendment in the plaint which could not have been allowed in view of the latest pronouncement of this Court in the case of Asad Ali Alvi v. Nazir. Learned counsel for respondent then contended that constitutional jurisdiction was not available to the petitioner. The ground taken in support of his contention was that an order passed in revision by learned Additional District Judge under section 115 of the Code of Civil Procedure has attained finality and no second revision lay against this order in the High Court. This being so to entertain writ petition against the revisional order of the Additional District Judge would tantamount to circumvent the law. He asserted that if an order passed by a Court of competent jurisdiction cannot be directly challenged in the High Court in the revisional jurisdiction the same cannot be permitted to be indirectly assailed in the writ jurisdiction except under very exceptional circus Instances.
7. Jurisdiction bestowed on this Court by Constitution stands on a Much higher pedestal and cannot be allowed to be curtailed by subordinate legislation. It is axiomatic that a provision embodied in a sub-Constitutional legislation making orders passed thereunder as final does not take away the constitutional jurisdiction of the High Court. It follows, therefore, that no consideration flowing from the provisions of a Sub-Constitutional law bearing upon the finality of orders passed thereunder even in the absence of B express provision in that behalf can prevail to exclude the constitutional jurisdiction or to inhibit its exercise. Answer to the question whether constitutional jurisdiction should be exercised in case falling within the purview of the powers of the High Court would depend upon the circumstances of each case. The Constitution envisages that a writ can issue against any decision of a Court and while so providing it has or shall be deemed to have the knowledge that Courts function under a regular procedure and moreso civil Courts. The jurisdiction of the High Court under Article 199 of the Constitution is of widest amplitude and simply on the premises that revisional jurisdiction under the Code of Civil Procedure h been conferred at the District level on the District Judges and the Additional District Judges an immunity cannot be attached to their orders from being agitated in this jurisdiction if otherwise they are amenable thereto. If the order passed runs contrary to the provisions of the statute law or has faile to follow the law relating thereto as laid down by superior Courts interference in constitutional jurisdiction is readily available. Revisional order therefore, passed by learned Additional District Judge which as state above, has not taken note of the last pronouncement of this Court in the case of Asad Ali Alvi v. Nazir is liable to be struck down, on the ground of illegality, in constitutional jurisdiction.
9. In view of the foregoing discussion, writ petition is accepted, order, dated 19th April, 1984 passed by learned Additional District Judge, Kasur allowing amendment in the plaint is set aside and is declared to have been passed without lawful authority. Pre-emption suit, therefore, shall proceed to its decision on the preferential qualifications already stated in the plaint.
10. In the circumstances of the case, parties are left to bear their own costs.