' RAJA MUHAMMAD KHURSHID KHAN, C. J.-The facts relevant for the disposal of this appeal, by leave, are that one Hukam Dad sold the suit land measuring 10 Kanals 3 Marlas comprising field No, 419 situate in the area of village Majwal, Kotli, to three persons, namely, Khushi Muhammad, Muhammad Shafi and Nek Muhammad on 10-7-1964. The appellants Nos. 1 to 6 to this appeal are the heirs of Khushi Muhammad and Muhammad Shafi who have died after the execution of the sale-deed.
2. Shah Wali, respondent No, 1, pre-empted the suit land by way of a regular suit on 3-6-1965. In the plaint, while giving description of the suit land, instead of Survey No, 419, Survey No, 359 was entered. It was about seventeen years after the suit was filed that the respondent (plaintiff) moved an application on 27-2-1982 seeking permission to amend the plaint so as to substitute survey No, 419 for Survey No, 359. In this respect the plaintiff. Respondent claimed that since mention of Survey No, 359 in the plaint was due to inadvertence, he may by allowed to substitute it for the correct survey number which is 419. His case was and is that as the land in suit was mutated under No, 359, he and; the scribe under the mistaken belief entered in the plaint the same as the field number comprising the land sold.
3. The learned Sub-Judge, vide his order, dated 28-3-1982, allowed the amendment claimed.
Dissatisfied with the order of the Sub-Judge, the appellants moved a revision petition before the High Court to assail the said order which was dismissed vide order, dated 27-5-1982. The dismissal was recorded on the ground that since the mention of wrong qi7vey number was a clerical mistake, the -amendment was rightly allowed by the trial Judge, Hence this appeal, by leave, to call up and quash the said judgment of the Hig Court.
4. Raja' Muhammad Siddique, the learned counsel for the appellants, has argued that it is not a case where the mistake, as held by the High Court, could be regarded as clerical one. In his estimation the amendment has changed the whole complexion of the case and has also taken away a right accrued to the appellants by lapse of time. Elaborating his point of view he maintained that at the time the amendment was allowed the claim of the respondent to pre-empt the suit land had already become time-barred and, therefore, the amendment could not be allowed to bring it within time. The sum total of the arguments of the learned counsel is that it was not a clerical, error justifying amendment and even otherwise the amendment allowed by the trial Court, after the period of limitation, was an illegal exercise of the discretion. In support of his viewpoint regarding limitation the learned counsel has referred us to a case reported as Syed Khadim Ali Shah and others v. The Additional District Judge, Sheikhupura and others (1).
5. As against this Agha Ashiq Hussain, the learned counsel for the respondents, has contended that the entry of survey number in the plaint was purely a clerical error and insertion of the correct survey number would neither change the complexion of the suit nor it could be said that the amendment had taken away the right accrued to the appellants. It has further been contended that the amendment in the present case takes effect nuns pro tunc. In support of this proposition, the learned counsel has cited Krishna Naiad Singh and another v. Ma Aye and others (2) and Sodhi Lal Singh v. Firm Lala Bihari Lal-Lakshari Mal and another (3).
6. We have given our best consideration to the arguments addressed ft bar and have perused the authorities cited by the learned counsel for the parties. We are of the view that the order of the learned Judge in the High I4 is perfectly legal and needs no interference for the reasons to follow.
7. The most important point for determination in this case is as to whether the amendment allowing the plaintiff to substitute the survey number has taken away any existing right of the appellants? If that is so then, of course, the amendment may not be allowed. Otherwise there is no exception to the well-honoured principle that the Courts should be liberal and allow amendment of pleadings especially in cases where there has been clerical error or bona fide wrong description of the property. In the present case the amendment proposed does not change the character of the suit or cause of action., cannot be, therefore, said that the original suit, as contended, would be substantially changed by the amendment. The amendment simply rectifies a clerical error in substituting the correct survey number.
8. So far the point of limitation is concerned, there is ample authority for the proposition that when an a intendment has been allowed by the Court and a date has been fixed by the Court for filing the amended plaint and the amended plaint has been filed within the time allowed, the presentation of the amended plaint relates back to the original presentation of the plaint and the date of original presentation of the plaint has to be taken to be the date on institution of the suit for the purpose of section 3, Limitation Act, and this principle can aptly be applied to the amendment sought for to correct misdescription of the property as is done in the present case.
9.The two cases cited by Agha Ashiq Hussain, referred to above and especially the latter one Sodhi La! Singh v. Firm Lala Bihari Lal, are on all fours with this view of ours. In the latter case it has been observed :- "Where an original application for adjudication Is made in time but the Court allows the amendment to correct the misdescription of that property after expiry of limitation, such amendment neither alters there {{FOOT NOTE}}
(1) l9't,2 CLC 577 (2) AIR 1936 Rang. 508
(3) AIR 1937 Lab. 895 {{FOOT NOTE}} character of the claim nor introduces a new cause of action, and in such cases the amendment takes effect nunc pro tune. "
' This view was also owned in Jalal Din v. Qaim Din (11 and Bhagirathi Shukul v. Chandra Harihar Patak (2), where similar amendment correcting misdescription of property was allowed to be made even on appeal long after the period of limitation had passed. On this point we would also like to refer to the following case law which subscribes to our view :-
(1) Ram Lai v. Harrison (1880) 2 All.
832.
(2) The New Fleming Spinning & Weaving Co. Ltd. v. Kessowjinaik (1885) 9 Bona.
373.
(3) Patel Mafatal Narandas v. Bai Parson (1894) 19 Born.
320.
(4) Burkatun-nissa v. Muhammad Assad Ali (1895) 17 All.
288.
(5) Saminatha v. Muthayya (1892) 15 Mad.
417.
(6) Naba Kumar Cho wdhury v. Higheazany 51 Cal.
885.
For the above-stated reasons we hold that in the present case the Court was competent to allow the amendment to correct the misdescription of property after the expiry of limitation because such amendment neither alters the character of the claim nor introduces a new cause of action and in such cases amendment takes effect nunc pro tune. The amendment only aims at correcting a clerical error which does not, in any way, change the character of the suit or the cause of action.
10. The case Syed Khadim Ali Shah and others v.. The Additional District Judge, Sheikhupura and others 1982 CLC 577, cited by Raja Muhammad Siddique, is distinguishable. In that case the land was sold to four persons namely, Khadim All Shah, Syed Shabbir HuS-sain Shah, Syed Munir Hussain Shah and Syed Murad All Shah sons of Syed Asghar All Shah by a registered sale-deed, dated 15-4-1974. A suit for pre-emption was filed on 4th of April, 1975. This suit was filed against (1)
Syed Khadim All Shah son of Syed Munk Hussain Shah, (2) Ssed Munir -Hussain Shah and (3) Murad Ali Shah sons of Syed Asghar All Shah. The name of the 4th vendee, namely, Syed Shabbir Hussain Shah was totally omitted and the parentage of Syed Khadim Ali Shah was also given incorrectly as Syed Munir Hussain Shah. The defendants 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 34.
Months after the written statement that an application was submitted by the plaintiffs for amendment of their plaint under Order VI, rule 19 of the Code of Civil Procedure. It was claimed that it is a clerical error and permission may be granted to correct the plaint so as to correct the parentage of Syed Khadim All Shah and to put serial No, 2 against the name of Syed Shabbir Hussain Shah. Another application was filed on 17th January, 1976 in which further permission was sought to enter the name of Syed Shabbir Hussain Shah also as his name, as said earlier. Was not at all recorded in the plaint and it was incorrectly stated in the first application that his name was entered in the plaint The learned trial Court disallowed the application and held that the equerry does not help an indolent .But helps only the vigilant. The learned District Judge, in revision, held that the learned trial Judge has exercised the discretion with material irregularity in disallowing the amendment prayed for by the pre-emptor and allowed the amendment. However, on appeal before the Lahore High Court, {{FOOT NOTE}}
(1) AIR 1214 Lab, 263 (2) AIR 1922 All. 81 {{FOOT NOTE}} Justice Aftab Hussain, J. (as he then was) restored the judgment of the trial Court with the following observations :- "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.
' 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 3i months alter 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."
' It would thus appear that the facts of the case decided by Aftab Hussain, J., are altogether distinguishable and have no similarity to the facts of the instant case. In that case by omitting one of the vendees to be impleaded as a party the plaintiffs instituted the suit which was not tenable at all and even after plaintiffs had been made conscious of the defect, they allowed the period of limitation to expire which fact has allowed a valuable right to reside in the defendant (vendee omitted) and obviously such a right could not be snatched away by way of an amendment after the period of limitation. But, here in this case no such situation is available.
11. We may be here permitted to repeat that in the instant case no alternative case which is inconsistent with the original plaint has been set up by the respondents on account of the amendment. The amendment allowed only substitutes the correct survey number and cannot, by any logic, be said to change the character of the suit. The copy of the mutation, it is submitted, is indicative of the fact that the property which is subject of the dispute was mutated under No, 359 and this fact, in our view, has put the respondent on wrong track not to enter the correct suvery number, i,e, 419. It is significant that para. No, 1 of the plaint contains correct description of the property sold. The name of the vendee and the name of the vendor are also correct but it only incorporates incorrect survey number. The defendants admitted the execution of the sale-deed of the suit land in their written statement. The mistake being a formal defect removal of it by an amendment has rightly been allowed. In somewhat similar circumstances Kaikaus, J., in Mst.
Fatima v. Sardara (1) observed as under :- "Incorrect reproduction in plaint of the Kh'asra numbers, which were the subject of the suit, was a defect of a very formal nature, while correct Khasra numbers had been set out in the deed of gift, the basis of the {{FOOT NOTE}}
(1) PLD 1956 Lab. 474 {{FOOT NOTE}} suit, and while the Khatta numbers were correctly mentioned in the plaint itself. Such a defect should be allowed to be corrected in Court without an adjournment."
' For the above-stated reasons this appeal fails with costs.