1. ' Land measuring 45 Kanals 1 Marla alienated through a Court decree was subjected to a pre- emption suit by Jindu Khan, Plaint was presented on 23-7-1979. Written statement by vendee- defendant was filed on 26-1-1980. In the written statement, several preliminary objections including the one relating to partial pre-emption were raised by the vendee. Before the issue could be framed, an application under Order VI, rule 17, C.P.C. seeking permission to make amendment in the plaint was moved by the plaintiff pre-emptor on 19-3-1980. It was stated in this petition that due to an inadvertent omission and through a clerical error, certain Khatas have been misdescribed and the area was also omitted. The area described in the plaint was 40 Kanals 1 Marla whereas in fact 45 Kanals 1 Marla was alienated through a Court decree. The defendant resisted the prayer for amendment. It was stated in the written reply that pre-emption being an artificial and a weak right, plaintff was not entitled to amend the plaint so as to remove the defect of partial pre-emption pointed out in the written statement. Learned Civil Judge vide order dated 26-7-1980 rejected the prayer for amendment. The order recorded in Urdu reads:-[URDU TEXT] ' Plaintiff assailed order, dated 26-7-1980 in revision before learned District Judge, Mianwali. Vide order, dated 2-3-1981, learned District Judge found no merit in the revision and dismissed it. Both the orders refusing permission to amend the plaint have been brought under challenge in constitutional jurisdiction. Writ petition was admitted on 13-7-1981 and has come up before me today for final hearing in the presence of learned counsel for the parties.
2. I have heard learned counsel for the parties and examined the available record. Learned counsel for the plaintiff/pre-emptor contended that the mistake sought to be removed and corrected through the amendment petition was merely of a formal nature which crept into the plaint due to a mere oversight. The plaintiff, is entitled to correct the error and to supply the necessary omissions in the plaint. The suit did not suffer from partial pre-emption and even if it did suffer from such a defect, the plaintiff was entitled to remove the defect through an amendment under Order VI, rule 17, C.P.C. The Courts below, in his view, have proceeded on erroneous considerations having no bearing in law in refusing the prayer for amendment. It was contended that bar of limitation did not apply to the powers to allow amendments enjoyed by the civil Courts under Order VI, rule 17, C.P.C.
2. The power to allow amendments in the pleadings can be exercised at any stage of the proceedings. Suit to enforce a right of pre-emption is not to be subjected to a different treatment, as compared to other suits. Petition seeking amendment was made without delay, even before the issues were settled. When the defect was pointed out in the written statement by the vendee, the plaintiff hastened to make a petition for correcting the error. Reliance was placed upon the case Mst. Fatima v. Sardara PLD 1956 (W.P.) Lah. 474, Bahadur Shah and 2 others v. Sharaf and 9 others PLD 1973 Lah. 513, Abdul Karim v. Mashal Khan PLD 1980 Pesh. 34, Lal Muhammad v. Additional District Judge etc. 1983 CLC 770, Muhammad Siddique Khan v. Allah Yar etc. 1982 CLC 513; Siddique Khan and 2 others v. Abdul Shakoor Khan and another PLD 1984 SC 289.
3. Learned counsel for the respondent/vendee resisted the petition. He contended that the suit instituted suffered from a serious defect of partial pre-emption. 45 Kanals 1 Marla of land was transferred through a Court decree. This fact was within the knowledge of the plaintiff and yet he deliberately omitted to sue for a lesser area. In this way he abandoned a part of his claim.
3. Omission on the part of the plaintiff to sue for the whole of the land created a valuable right in favour of the defendant/vendee of which he could not be lightly deprived of. Pre-emption suit on the date of proposed amendment had clearly become barred by time. Inclusion of an item of property though small omitted from the original plaint cannot now be allowed to be added after the expiry of period of limitation. Pre-emption being a weak right, the plaintiff must suffer for his own negligence or for that matter, of his counsel, who drafted the plaint negligently leaving out a portion of the property subject-matter of a Court-decree. Power to allow amendment is in the discretion of the Court. The Court, after survey of the circumstances and taking into account the peculiar nature of the right asserted in suit, refused the prayer. This refusal was further endorsed by learned District Judge in his revisional jurisdiction. This being a matter purely resting in the discretion of the Court cannot be subjected to interference in constitutional jurisdiction. Reliance was placed on Shah Muhammad v. Hayat and others PLD 1960 (W.P.) Lah. 975, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others AIR 1957 SC 363, Banwari Ram and another v.
4. Muhammad Yar Khan and another AIR 1941 All.
5. 49.
4. Admittedly, land measuring 45 Kanals and 1 Marla comprised in several Khatas was transferred through a Court decree. Plaintiff pre empted the transfer through a suit by pre-emption. Defendant in written statement objected to the maintainability of the suit, amongst other grounds, on a plea of partial pre-emption. Within a period of two months when the written statement was filed in Court and before settlement of issues by the Court, petition for amendment was made. Learned Civil Judge disallowed the prayer principally on two grounds period of limitation prescribed for a pre- emption suit had expired;
(i) it would change the nature of the suit. Learned District Judge agreed with the trial Court and in para. 3 of the order observed:- "It is admitted before me that the suit land was sold from three Khatas, Khata No.66 was not mentioned in the plaint at all and instead Khata No.4 was mentioned, land measuring 4 Kanals and 11 Marlas had been sold from Khata No.67 but in the plaint only 4 Kanals was mentioned and in total 40 Kanals and 1 Marla of land was desired to be pre-empted but actually the land sold was 45 Kanals and 1 Marla. Learned counsel for the petitioner has contended that the possessibn of the land had not been delivered; so the limitation was 6 years and that the amendment should have been allowed. Learned counsel for the respondent has asserted that if the factual position was as contended by the learned counsel for the petitioner then he may withdraw the suit with permission to file a fresh suit on the same cause of action. Whatever may be the case the fact remains that the suit would be bad for partial pre-emption prima facie and if the petitioner wants to bring in a suit for the whole cf the land then the learned lower Court may allow him permission to withdraw the suit with power to bring a fresh suit on the same cause of action but no illegality is apparent in the impugned order. Hence the revision petition is dismissed."
6. 'Pre-emption right no longer is frowned at by the Courts on the assumed ground of piracy, in view of the pronouncement of this Court in a Division Bench judgment Malik Jan Muhammad v. Shukar- ud-Din and 6 others 1980 CLC 186 and the weighty pronouncement of the august A Supreme Court of Pakistan in case of Siddique Khan and 2 others v. Abdul Shakoor and another. It has been observed by this Court in Malik Jan Muhammad's case:- "Right of pre-emption has been recognized in one form or another in almost all settled societies from times immemorial and is a prominent part of the Islamic Law laid down nearly fifteen centuries ago and has been applied in the Sub-Continent for many centuries. It has been enacted by the Legislature into an Act in the Province of Punjab. To call this law, 'predatory', which means, according to Concise Oxford Dictionary, addicted to, plunder or robbery' is rather too strong. The fact that it constituted a drawback on the recognized principle of freedom of contract and that is its blemish would hardly hold water because the principle of freedom of contract--itself a product of the laissez faire era--has lost its vitality in a short span of time."
7. ' Similar observations were made by the Supreme Court in case of Siddique Khan and 2.others v.
8. Abdul Shakoor Khan and another. Supreme Court observed: "Pre-emption right, therefore, could no longer be described as piratical right. So long as the right is recognized by a statute it has to be enforced by the Court irrespective of its notion with regard to the nature of the right. This statutorily recognized right, asserted in a suit, cannot, therefore, legally be differentiated from other enforcible civil rights. In this view of the matter, same considerations for allowing or refusing amendment in pleadings which apply to the other suits must apply to a suit instituted to enforce a right of pre - emption. Considerations flowing from the right treating it as piratical right no longer hold the field in view of the statement of law in Siddique Khan and 2 others v. Abdul Shakoor Khan and another.
9. In Syed Ikhlaq Hussain v. Water and Power Development Authority, Lah. 1977 SCMR 284 the Supreme Court dealing with powers of amendments in pleadings observed: "that leave to amend pleadings should be allowed liberally except when the amendment amounts to setting up of an altogether different cause of action." It further observed that "all rules of Court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate for that purpose so that full power of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has been given to enable one distinct cause of action to be substituted for another nor to change by an amendment, the subject-matter of the suit. The real question in deciding as to the propriety of allowing an amendment of the pleading is, to use the words employed in the relevant rule itself, whether the amendment is necessary for the purpose of determining the real question in controversy between the parties. If so, then leave to amend ought to be allowed liberally,. provided of course that it does not have the effect of setting up an altogether different cause of action." The amendment of pleadings can be allowed, at any stage regardless of the fact whether the limitation period for filing a claim at the time when the amendment is being made had expired or not. There is no dearth of authority in support of the statement that leave to amend pleading has been granted even at the stage of second appeal and at the level of the Supreme Court also. The only rider attached is whether the proposed amendment was really and genuinely essential for deciding the controversy arising between the parties. Delay per se was ground to operate as a bar on the powers of the Court to allow amendment. The proposed amendment to correct and include a small area left out in the pre-emption suit did not change the nature or character of the claim either before or after the proposed amendment. The prayer for amendment was also not in- ordinately delayed. The trial of the suit has not yet started. Even issues have not been framed. It is no doubt true that Courts would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should or should not be allowed and does not affect the powers of the Court to order it if that is required in the interests of justice. In Jalal Din and others v. Qaim Din and Mst. Umar Bibi and others 62 Punjab Record 1914 amendment in a pre-emption suit on account of an accidental omission of the part of prcperty was allowed more than once. The facts of the case were that on 7th of April, 1908, a property was sold consisting of 11 Kanals 18 Marlas of land, second floor of a house, a share in a well and a share of Shamilat. A suit for pre-emption was brought on 30th of March, 1909 but in the plaint, the property asked for was described merely as 11 Kanals 18 Marlas of land. On 12th of May. 1909 plaintiff applied for leave to amend saying that he had not intended to renounce any part of the claim but by a "Kitabi Ghalti" omitted the house. The Court sanctioned amendment and it was made. Still the share of the well and of Shamilat was left out. On 4-2-1910 this defect was pointed out by the vendees and the plaint was on the same day returned for amendment and put in finally fully amended on 16th of February, 1910. It was in these circumstances observed by the learned Judges of the Punjab Chief Court that this being a case of inadvertance and mis description of property claimed and not of an intentional omission, the amendments were rightly allowed. It was further observed that Order VI, rule 17 allows amendment of any part of a plaint provided the amendment does not alter the character of suit or introduce a different cause of action. In case of Charan Das and others v. Amir Khan and others AIR 1921 PC 50 their Lordships of the Privy Council, speaking on Order VI, rule 17 relating to amendment of pleadings after expiry of limitation for suit observed:- "Where the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner and to amend the plaint so as to express the rights which it has been really their intention all along to establish, although the amendment of plaint is sought to be made at a time when the suit itself if instituted then would be time-barred. And though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by the special circum stances of the case."
10. 'Precedent case incidentally also was a case relating to a pre-emption suit. Therefore, the consideration of limitation alone without attending to other circumstances having bearing on the question relating to, the propriety of allowing or refusing amendment should not prove to be a decisive factor standing in the way of Court to allow amendment. In the case under consideration, the intention appears to be to pre-empt the transaction effected through a Court decree. It does not appear from the reading of the plaint that the plaintiff had relinquished any part of the claim from the suit. This inference is further strengthened by his moving a petition for amendment, soon after the written statement containing such an objection was raised by the defendant-vendee.
11. Plaintiff, a poor litigant had placed all his papers in the hands of his counsel and if through his inaccurate drafting a small portion of land was omitted, that should not react on the rights of the plaintiff who had come to enforce his right of pre-emption in respect of the entire land said to have been alienated through a Court decree. The precedents cited by respondents to support the orders of the Courts below refusing prayer for amendment, proceed on distinguishable facts and are not helpful in the resolution of the controversy arising for decision before me. The petition for amendment has not been dealt with by learned trial Judge and learned District Judge in revision in accordance with law. They proceeded to reject the prayer for amendment on erroneous and irrelevant considerations. Had they not erred on a matter of principle, I would not have interfered.
12. The Courts below failed to exercise jurisdiction by refusing the proposed amendment which neither went to change the cause of action nor amounted to setting up a new case by the plaintiff.
13. Learned counsel for the respondent was correct in stating that power to permit or refuse amendment in pleadings rested in the discretion of the Court trying the suit subject to the correction by the revisional Court and the exercise of discretion one way or the other by the Courts below was not amenable to correction in writ jurisdiction. There cannot be any dispute with the legal proposition that the power to allow or refuse amendment is discretionary with the Court but then the discretion like all other powers of a Court is to be exercised on sound judicial principles and guidelines provided by the superior Courts. If in exercise of its discretionary powers the Court has proceeded on considerations irrelevant or has omitted to consider the considerations relevant for its proper exercise, the resultant exercise can validly be interfered by the High Court in its constitutional juris diction. The facts of the case as presented do show that the Courts below have failed to exercise their jurisdiction in accordance with law. Leave to amend has been wrongly refused on erroneous considerations. In view of the aforesaid discussion, writ petition is allowed, impugned orders passed by the Courts below are set aside, leave to amend the plaint is granted to the plaintiff subject to payment of Rs.1,000 as costs to the defendant. Parties to bear their own costs.
14. Order be transmitted to the trial Court without least delay.