' This regular second appeal is directed against the judgment and decree of the learned Additional District Judge, Gujranwala, dated 6th of February, 1976 whereby the appeal filed by the respondent from the judgment and decree passed by the learned Civil Judge, Wazirabad on 17th of December, 1974 decreeing against him the pre-emption suit instituted by the appellant was accepted and the suit was dismissed.
2. Agricultural land measuring 16 Kanals situate in Mauza Sadanwali, Tehsil Wazirabad, District Gujranwala was purchased by the respondent from one Fateh Muhammad by a registered sale- deed, dated 17th of July, 1972 ostensibly for Rs,12,000. The appellant instituted a suit to pre-empt the sale. He claimed his right of pre-emption on the ground that he was an owner in the estate which qualification, according to him, was not available to the respondent. He further asserted that the land had actually been sold for Rs,8,000 but excessive sale price had been mentioned in the sale- deed to defeat his right of pre-emption.
3. The respondent resisted the suit. He simply denied the allegation of the appellant that he possessed a preferential right of pre-emption. As regards the sale price, he pleaded that the land had been sold for Rs,12,000 which amount was in fact paid by him. He also raised preliminary objections that proper court fee had not been paid, that the appellant had waived his right of pre- emption and that he had spent a sum of Rs,2,000 on the improvement of the land.
4. The trial Court after appraising the evidence adduced by the parties for and against the issues decreed the suit of the appellant on payment of Rs,12,000. The respondent in his evidence examined witnesses to prove that he was the nephew (sister's son) of the vendor and as such the appellant could not pre-empt the sale in his favour. No objection was raised on behalf of the appellant that since the respondent had not taken a plea in the written statement that he was the nephew of the vendor, he could not lawfully produce any evidence in this respect. Rather the witnesses of the respondent were cross-examined on this point. The trial Court disbelieved this plea.
5. Feeling aggrieved, the respondent preferred an appeal which was heard by the learned Additional District Judge, Gujranwala who reversed the finding of the trial Court and held that the respondent was the nephew of the vendor and in view of this relationship, the appellant did not have superior right of pre-emption qua him. Consequently, he accepted the appeal, set aside the judgment and decree of the trial Court and dismissed the suit of the appellant. Hence this regular second appeal.
6. In this Court, the respondent has filed an application under Order VI, Rule 17 read with section 151, C.P.C. For amendment of the written statement so as to raise a specific plea that he is the nephew of the vendor and, therefore, the appellant does not possess a right of pre-emption against him.
This application has been opposed by the appellant. It is argued by learned counsel for the respondent that the respondent in his written statement denied the averment of the appellant that he possessed a superior right of pre-emption on account of being an owner in the estate on the ground that he was a nephew of the vendor although he did not specifically mention this relationship. According to them, the basis of the denial of the respondent was known to the appellant as otherwise when the respondent led evidencing support of the relationship the appellant would have raised an objection to the admissibility of the evidence on the ground that the plea of relationship had not been taken. Rather the appellant by cross-examining, the witnesses of the respondent on the question of relationship impliedly waived the objection. This argument is quite sound and, therefore, ire the circumstances, I allow the amendment subject to the payment or Rs,500 (Five hundred) as costs.
7. Learned counsel for the appellant has pointed out that in view of the amendment, the appellant would have to produce evidence rebuttal to show that the plea of the respondent that he is the nephew of the vendor is baseless. He requests that for this purpose, the suit may be remanded to the trial Court for its decision afresh after affording the appellant an opportunity to lead further evidence in rebuttal on issue No,6. Learned counsel for the respondent has no objection.
8. In the result, this appeal is accepted and setting aside the impugned judgment and decree the suit is remanded to the trial Court for its decision afresh after allowing the respondent to file amended written statement on payment of Rs,500 (Five hundred) as costs and affording the appellant a reasonable opportunity to produce further evidence in rebuttal on issue No,6.