' Fazal Rehman plaintiff-respondent filed a suit for possession of a house situated in village Prang Yasinzai, Kandi Amokhel, Tehsil Charsadda through pre-emption on the payment of sum of Rs, 3,000 towards its price. The suit was contested by the petitioner and other defendants and the learned Civil Judge Charsadda vide his judgment dated 3-10.1979 decreed the suit of the plaintiff- respondent on payment of Rs, 3,001 This decree was challenged by the petitioner before the learned Additional District Judge Charsadda who through his order dated 1-4- 981 set aside the judgment and decree of the trial Court and remanded the case to the trial Court to frame issues according to the pleadings of the parties and decide the suit afresh. During the pendency of the appeal the petitioner on 3-4-190 had moved an application with a prayer that he should be allowed to amend the written statement so as to specifically raise the plea of exemption under section 5 (d) of the N.-W. F. P. Pre-emption Act. No, order seems to have been passed on this application excepting the order dated 1-4-1981. This order was impugned by Fazal Rehman plaintiff by way of revision petition in the High Court which was accepted by this Court on 6-2-1983 and the case was remanded to the learned Additional District Judge with the direction that he should first decide the application with regard to the amendment in the written statement and in case it is declined, to decide the appeal on merits on issues already framed. Acting on the directions of this Court the learned Additional District Judge took up and considered the application submitted by the petitioner for the amendment of his written statement and through this impugned order declined to accede to the request made therein. Hence the present revision petition.
2. The background of the whole case has been fully given in the impugned order of the learned Additional District Judge dated 12-10-1983 and since I am concerned with a limited question with regard to the allowing or otherwise of the application submitted by the petitioner regarding the amendment to the written statement, 1 need not repeat the facts.
3. The learned counsel for the parties heard. It is not denied by the learned Additional District Judge, in his order dated 12-10-1983 that the petitioner in his written statement submitted on 12-2- 1979 had stated that he had purchased the suit house for his personal use and also paid the full price from his own resources but he disallowed the application for amendment on the ground firstly, that it cannot be inferred from the written statement that the vendee (now petitioner) wanted to claim exemption and secondly, if the exemption is granted to the petitioner it would carry away valuable rights accrued to the respondent, that is, Fazal Rehman. This finding has been vehemently opposed by Mr. Z. Mahfuz Khan Advocate but has been fully supported by Syed Rafaqat Ali Shah Advocate who appeared for the respondent. He also contended that the petitioner is a subsequent vendee and therefore the plea of exemption under section 5 (d) of the N.-W. F. P. Preemption Act is not at all available to him
4. As to the question that since the petitioner had not specifically claimed exemption as required under section 5 (d) of the Pre-emption Act in his written statement, therefore, amendment cannot be allowed, I think as the record stands, the finding is erroneous. It is true that the petitioner in para. 6 of his written statement did not incorporate the exact words as laid down in section 5 (d) of the Pre-emption Act but he has not altogether omitted to claim the exemption envisaged in the said section either. In para. Referred to above he in very clear words stated that : {{URDU TEXT}} ' The construction of the above sentence may not be very artistic, may have not carried the words that he has purchased the suit house for his "own occupation" but his intention is very clear. The mere fact that instead of "own occupation" (as laid down in suosection (d) of section 5 of the Act) the petitioner has used the words "personal use" and therefore, he be refused permission to amend his written statement, would be against all the canons of justice. I have carefully examined the words 'required for own occupation' and the words 'required for personal use' and I do not find any difference whatsoever in the two phraseologies-the one laid down in the book and the other adopted by the petitioner in para 6 of his written statement. In fact I find that the words 'oven occupation' and 'personal use' have marked similarities and convey one and the same meaning and purpose. It is discernible from the impugned order that the learned Additional District Judge was more concerned with the inartistic construction of the written statement rather than the intent and purpose that it conveyed. It is well-trodden law that the Courts of law who are called upon to administer justice should not be swa yed by inartistic or defective construction of pleadings, they should rather follow the intention of the parties and the spirit of law. In this view of the matter the first ground advanced by the learned Additional District Judge in rejecting the application for amendment is overruled. As for the second ground is concerned, the same too has no basis because the right to claim exemption by the petitioner existed at the time of the institution of the suit and thus it would not affect the rights of the respondent pre-emptor.
5. The contention of the learned counsel for the respondent that the petitioner being a subsequent vendee is barred to take the plea of exemption will not prevail with me at this stage inasmuch as presently this Court is concerned with the application for the amendment of the writ petition. This plea will be available to the respondent and he can raise the same at the trial and get it thrashed out.
6. In the result this revision petition is accepted, the order of the learned Additional District Judge, Charsadda dated 12-10.1983 is set aside and the application of the petitioner dated 3-4-1980 for the a intendment of the written statement is allowed subject to the payment of cost of Rs, 500. The case is remanded to the trial Court with the direction to allow the petitioner to file the amended written statement, additional issues if necessary may be framed, the parties be permitted to adduce evidence if they so desire and the case decided on merits.