M.MAHBOOB AHMAD, J.-This Regular Second Appeal calls in question judgment and decree dated 25.9.1970 passed by the learned District Judge, Sialkot.
2. The facts necessary for the purpose of this appeal briefly stated are that land measuring 40 kanals and 7 marlas situated in revenue estate of Almiana, Tehsil Narowal, District Sialkot was purchased for a consideration of Rs.4000/- by Mst.Mukhtar Begum respondent No.1, since deceased and now represented by her legal representatives, from Muhammad Aslam and Mst.Khurshid Begum on 16.8.1965 through a registered sale deed executed on the aforementioned date. On 1.9.1966 the present appellants instituted a suit for possession of the aforementioned land through pre-emption of the sale thereof. The plaintiffs-appellants claimed the superior right of pre-emption as co-sharer in the Khata and as owners in the estate. It was also asserted in the plaint that the actual sale price was Rs.3000/- and the sale price of Rs.4000/- shown in the sale deed was fictitios.
3. The suit was contested by the respondent who filed written statement on 7.12.1966. The superior right of pre-emption was denied and in addition estoppel and waiver were also pleaded. The case was fixed before the trial Court for arguments on 21.10.1968 when an application was filed by the respondent-defendant for permission to amend the written statement so as to add the plea of partial pre-emption saying that in para 9 of the plaint which is the prayer clause relief has been claimed only in respect of para 1 of the plaint and not regarding para 2 thereof.
4. An additional issue regarding partial pre-emption was framed as issue No. 3-A on 20.1.1969. The parties were allowed to produce evidence on the additional issue. They, however, sufficed by making their own statements. Ultimately, the learned Civil Judge, Pasrur by his judgment dated 23.4.1969 decreed the suit of the plaintiff-appellants holding that the plaintiffs have a superior right of pre-emption and that it was not a case of partial preemption.
5. Feeling dis-satisfied with the aforementioned decree of the trial Court respondent No.1 went up in appeal before the learned District Judge, Sialkot who by his judgment and decree dated 25.9.1970 accepted the appeal holding under issue No.3-A that the suit was for partial pre-emption technically. In cosequcnce, the learned District Judge dismissed the suit of the plaintiffs-appellants leaving the parties to bear their own costs. The plaintiffs-appellants aggrieved of the judgment and decree of the learned District Judge have come up before this Court in this second appeal.
6. The learned counsel for the appellants contended: Fisrt, that it was erroneous to hold that the suit as initially framed was for partial pre-emption. He submitted that the appellants- plaintiffs had categorically claimed possession of the land through preemption of the sale thereof which engulfed the claim as to rights mentioned in para 2 of the plaint as well.
It was furhter contended by the learned counsel for the appellants in the above context that while allowing a relief the totality of the plaint has to be taken into consideration and if on a conjunctive reading of the plaint it can be found that the relief claimed amounts to a complete pre-emption including the rights of tarf. Patti. And shamlat although it is not so specifically mentioned in the prayer clause it cannot be held to be the case of partial preemption; Secondly, that the case of partial pre-emption is only established where some portion of land is omitted and not where only some rights appertaining are missed from being specifically stated.
Reliance in the above connection was placed on Jasmir Singh V. Rehmatullah & others reported as 7 Punjab Record 1896.
It was also urged that the aforementioned authority has been followed by this Court in a. Ghani V.
Muhammad Salim etc, reported as NLR 1986 Civil 617 and that the view finds support also from Wazir Muhammad v. Abdul Aziz reported as 1982 SCM R 189 and Ghulam Nabi V. Sardar Nazir Ahmad reported as 1985 SCM R 824; Thirdly, that one of the plaintiffs in his statement recorded after the framing of the additional issue had categorically stated on 18.3.1%9 that he has sued for all the rights appertaining to the land as mentioned in the registered sale deed. It was urged that in the context of this statement the learned trial Court had Very rightly and justifiably held that the suit was not of partial pre-emption as the plaintiffs had claimed in the statement all the right^ appertaining to the land. It was also submitted in this context that while allowing a relief all the relevant factors, viz. Plaint, documents of sale, statements of parties etc. Have to be read together and even if in the prayer clause any part of the relief which otherwise can be granted has been omitted from being claimed this cannot be termed as abandoning of a right.
7. Alternatively it was contended that even if it be taken that a part of the relief had been omitted from the claim, it was just can accidental omission/clerical mistake and an application for amendment of the plaint (C.M. No. 632-C/73) having been made the same merits to be allowed in the attendant circumstances of the case. In support of the above contention following authorities were cited to show that amendment of pleadings can be allowed at any stage: Mst Ghulam Bibi and others V. Sarsa Khan and others (PLD 1985 SC 345), Karamat Ali and another V. Muhammad Yunus Haji and others (PLD 1963 SC 1911. Noor Muhammad and 3 others V. Jahangir Ali and 8 others (PLJ 1987 Lah. 554 (DB), and Jindu Khan V. Faraza and 2 others (1985 CLC 634 (Lah.).
8. On the contrary, the learned counsel for the respondents only submitted that it is a case of partial pre-emption as only para 1 of the plaint was referred to in the prayei clause for the grant of relief and the rights mentioned in para 2 were not claimed. It was urged that the lower Appellate Court has rightly held it to be a case of partial pre-emption and the dismissal of the suit cannot be, therefore, validly objected to. In support of the above contention reliance was placed on Syed Muzaffar Hussain Shah V. Mir Alam and another (1983 CLC 655 (AJ&K), Secretary to Govt. (West Pakistani Now N.W.F.P. Department of Agriculture and Forests. Peshawar and 4 others V. Kazi Abdul Kafil (PLD 1978 S.C. 242) and Ghulam Muhammad and 3 others V, Khushi Muhammad and another (PLD 1973S.C. 444).
9. The learned counsel for the appellants in reply submitted that according to Order VII Rule 7, C.P.C.
Relief whatever available can be granted by the Court whether or not it has been specifically claimed. Reference in support of the above contention was made to Kala V. Board of Revenue and another (PLD 1985 S.C. 208,) wherein it was held that the Court while granting relief has to read the plaint as a whole and has to look to the substance of the relief claimed.
10. The learned counsel for the appellants next contended that since C.M. No.632-C/73 has been filed to seek amendment in the plaint so as to incorporate the plea regarding grant of relief qua the right mentioned in para 2 of the plaint there should be no impediment in the allowing of the said application especially when there is no contest to the above application and no reply thereto has been filed till date.
11. From the respective contentions raised on behalf of the parties the questions that emerge for determination may be summarized as below:
1. Whether in the attendant circumstances of the case the suit could be held to be for partial preemption?
2. Whether the omission to refer to para 2 of the plaint in the relief clause was intentional or just a clerical/accidental omission?
3. If the answa r to the first question be in the affirmative, whether the amendment of the plaint at this stage can be allowed?
12. The case of the plaintiffs-appellants is that there was no omission to claim relief as regards the rights given in pars 2 of the plaint in that the plaint has to be read in its totality and when seen in that perspective the claim of the plaintiffs pertaining to rights mentioned in para 2 of the plaint is clearly spelt out especially when the said rights are in'fact inbuilt rights attached with the land and shall be deemed to have been claimed when the land pre-emption of which has been sought for is clearly described in the plaint. Alternatively it has been urged that omission if any in the above connection being only accidental/clerical merits to be cured by allowing amendment in the plaint as prayed for through C.M. No.632-C/73.
13. Contrarily, the respondent has asserted that it is a clear case of partial pre-emption in that in para 1 of the plaint the land has been described properly whilst in para 2 of the plaint the rights attached to the land have also been described yet in the prayer clause, relief has been restrietd to para 1, which amounts to abandoning of claim in respect of the rights contained in para 2 of the plaint.
14. Having given my anxious consideration to the controversy, I am of the view that in the attendant circumstances of the case the suit of the appellants cannot be thrown out on the ground of partial pre-emption. The appellants have given complete description of the land sale of which was sought to be pre-empted by them, they have brought on record the sale deed in question along with the mutation pertaining thereto and not only that in the statement of the attorney of the plaintiffs made after framing additional issue No.3-A above, he has clearly stated that the plaintiffs had all along the intention to claim pre-emption as regards the sale in its totality along with all rights appertaining thereto as spelt out in para 2 of the plaint. The above position taken by the appellants is fully borne out from the record and, therefore, mere non-mentioning of para 2 of the plaint in the prayer clause would not make the suit as one for partial pre-emption. The rights mentioned in para 2 of the plaint to my mind shall be deemed to be inbuilt in the claim of pre-emption especially when no part of the property as sueh has otherwise been left out from being mentioned. I am also inclined to agree with the submissions of the learned counsel for the appellants that strictly speaking a case of partial pre-emption would only be made out if some portion of the land sale of which has been sought to be pre-empted has been omitted from the claim and that the omission to mention share in the shamlat or for that matter any other rights pertaining to the land would not make the case as that of partial pre-emption especially when the omission to specifically mention the share of shamlat in the plaint has been consistently held to be merely a clerical and accidental omission and amendment partaining thereto always allowed liberally. Reference in this regard may usefully be made to 7 Punjab Record 18% and 62 Punjab Record 1914. Not only that in Wazir Muhammad etc. V. Abdul Aziz and another reported as 1982 SCM R 189 even omission of certain Khasra numbers from the title of the plaint has been treated as clerical and inconsequential.
15. The lower Appellate Court itself while accepting the .Appeal of the respondent and dismissing the suit of plaintiffs-appellants has held that the suit of the appellants is only technically for partial pre-emption and thus liable to be dismissed. This obviously implies an erroneous approach of the lower Appellate Court to the question involved which has resulted in a finding not sustainable in law. In the face of the findings of the trial Court that according to well settled principles of law a plaint is to be read as a whole together the intention of the plaintiffs; that perusal of the plaint makes it abundantly clear that the plaintiffs by giving full details of the land intended to pre-empt the sale thereof in totality and that the accidental omission to mention rights attached therewith just in the prayer clause would not be a sufficient basis to hold that the suit was for partial pre- emption, there was no justification for the lower Appellate Court to have reversed the finding of the trial Court more so when the plaintiffs' attorney in his statement had clarified without ambiguity the claim of the plaintiffs and stated categorically that they have claimed all rights as mentioned in para 2 of the plaint as well. In fact the lower Appellate Court as is apparent from its judgment made a fetish of a technicality which position cannot be approved in the light of the well settled principle of law that technicalities should not be allowed to be an impediment in the proper and effectual adjudication of the causes.
16. In the light of the above discussion I have no hesitation in holding that the suit of the appellants could not be dismissed on the ground of the same being for partial pre-emption. I am also clear in my mind that the omission in para 9 of the plaint to refer to para 2 of the plaint while claiming the relief was only accidental/clerical and the defect pertaining thereto stood cured through the statement of the plaintiffs' attorney and in any case is curable even at the present stage of second appeal wherefor the appellants have made an application (C.M. No.632-C/73).
17. Before parting with the case 1 may also observe that power of the Court as vested in it by Section 153, C.P.C. Read with Order VI Rule 17 is intended for determining the real question in controversy between the parties if need be by allowing amendment in the pleadings wherever called for liberally. The express terms in which the said provisions are couched empower the courts at any stage of the pendency proceedings arising out of a cause to allow amendment. The nature of the alleged error in claiming rights attached to the property sale of which was sought to be pre- empted as already observed obove was only an omission and appears to have crept in accidentally. No part of the property was intentionally omitted from being included in the plaint and reading the plaint in its totality, it is quite clear that the suit was brought in order to pre-empt the sale as a whole which position was corroborated by the appellants during evidence by producing a copy of the registered sale deed, the mutation pertaining thereto, both of which documents included the rights as mentioned in para 2 of the plaint. The respondent was therefore, on notice as to the claim of the appellants that it engulfed the entire property including the rights mentioned in para 2 of the plain! And not only that the respondent himself had not initially raised any objection in the written statement asserting that the suit was liable to bo dismissed on account of partial pre-emption and pointed out the omission only through an application at the late stage when the suit was to be argued before the trial Court.
18. That being so, the aforementioned accidental omission in the light of the above narration of facts merits to be cured as by allowing the amendment no new case will be set up. The application of the plaintiffs (C.M. No.632-C/73) made in this Court is, therefore, allowed in order to achieve the much coveted desire of the Courts to do effectual and proper adjudication of causes.In view of the foregoing discussion, allowing this appeal the judgment and decree of the lower Appellate Court dated 25.9.1970 is set aside and that of the trial Court dated 23.4.1969 is hereby restored. There will, however, be no order as to costs.