ORDERABDUL MAJEED MALLICK, CJ.-The petition is addressed against the order of the learned Sub Judge, Bhimber, passed on December 31,1990, whereby an application for amendment of the pleadings of plaintiff-petitioner, was dismissed.
2. Alam Din respondent alienated the land measuring 16 kanals 18 marlas out of Khewat No.83, Khatas No.419 and 429, along with built-up property consisting of his residential house etc.And Shamlat-deh, situate in village Kaschanatar, Tehsil Bhimber, for a consideration of Rs.1,50,000/-, in favour of Muhammad Saleem, through a registered sale deed executed on July 25, 1984.
Muhammad Shaft pre-empted the sale on account of his relationship with the vendor. The suit was instituted on August 10, 1986. The pre-emptor brought the suit in respect of the suit land to the exclusion of built-up property as well as the proportionate share in the Shamlat. In his written statement, the vendee raised the Hit by partial pre-emption, as such it was not maintainable. An application was moved by the plaintiff for amendment of his pleadings on November 30, 1989. It was opposed by the vendee-defendant, among of others, on the ground of limitation. In view of the provisions of limitation Act applicable to a suit for possession by pre-emption, the application was turned down.
3. Mr.Muhammad Yunus Arvi, the learned Counsel for the petitioner raised the following objections:- i. That the plaint was drafted by the petition-writer who by inadvertence omitted to include the entire property under alienation. The plaint was not signed by the plaintiff, as such, the plaintiff- petitioner was entitled to the concession of amendment in question; and ii. That the pre-emptor is prepared to pay full price of the property including the property which was left out of the suit.
The contentions were opposed by the learned Counsel for the opposite side.
4. In a suit for possession by pre-emption, it is enjoined upon the pre- emptor to sue for whole of the property under alienation. The pre-emptor is not given the option of pick and choose. The principle underlying therein is that if a vendee is to be excluded by virtue of his being a stranger, he has to be kept ousted from the entire property. Otherwise, the object of the provisions of the Preemption Act is likely to be defeated. It is by virtue of this rule of law that a pre- emptor who seeks to substitute the vendee in a property under alienation, is enjoined to opt for the entire property under sale or transfer. Whenever a departure is ipade, the consensus is that such a suit is unsustainable by virtue of rule of partial pre-emption. In the present case, it is accepted to the learned Counsel for the petitioner that the pre-emptor brought the suit for part of the property though in his view, it was done by mistake. This proposition was settled in Ghulam Muhammad's case (PLD 1973 S.C. 444).
5. The proposition of amendment of pleadings, in pre-emption suit received attention of Division Bench of this Court, in Muhammad Iqbal's case (PLD 1987 AJ&K 170) wherein it was held as :- "-The general principle of amendment described above is applicable to all pleadings in civil actions. Ordinarily, no pleadings are excepted to the rule postulated in the Code. This is what has been observed throughout by superior Courts in the Sub-Continent. But the principel of amendment is, of course, susceptible to be construed strictly in preemption matter. This is so as the superior Courts have frequently held that law of pre-emption being predatory, piratical and threat to free transactions, is to be applied strictly. On this premises, the rule of amendment of pleadings in a pre-emption suit is construed in the same line and direction.
The right of pre-emption is, in fact, a right of substitution, the pre-emptor, therefore, is enjoined to offer for taking over whole of the property irrespective of difference in quality on payment of whole price. He is not left to make choice by a division of the bargain. The right of pre-emption is defeated when pre-emptor leaves out part of the property or fails to pre-empt the whole transaction. This restriction, of course, is not enforceable in other transactions. It is for this reason that a vendee may defeat a pre-emptor seeking preemption of part of property. The proposition of amendment of pleadings in a pre-emption suit, to include the property left out at the time of institution of the suit, is to be determined keeping in view the effect of partial pre-emption. The essential controlling element to partial pre-emption, again, is the period of limitation. An amendment to include whole of property desired within period of limitation, may be allowed liberally as at the time opposite party is not placed in an advantageous position. Conversely, once the limitation under law expires, the Court is not empowered to allow amendment of plaintiff's pleadings, to include the property left out at the time of institution of the suit, in routine. The bona fide and genuineness of the amendment has to be ascertained from the circumstances under which plaintiff omitted to pre-empt whole of the property, and reasons for constituting negligence or omission, if any, to bring forth the case of plaintiff within the ambit of exception. By referring to the aforesaid grounds, it is not meant to propose that amendment in pleadings in a pre-emption suit after the expiry of limitation cannot be allowed at all. Refusal to amendment after limitation is, of course, not absolute but at the same time, heavy onus is placed on plaintiff to satisfy the bona fide of his action".
6. The limitation applicable to a suit for possession by pre-emption is one year from the date of delivery of possession of property under alienation or the date of registration of the instrument of sale as contemplated under Section 29 of the Right of Prior Purchase Act, and Article 10 of the Limitation Act. Therefore, ordinarily, the suit has to be instituted within limitation as described above. When a portion of a property under sale is left out and it is sought to be included in the suit, such inclusion by amendment must be sought within the limitation, otherwise the suit has to fail by virtue of rule of partial pre-emption.
7. It is well accepted that in Shamlat-deh of the village each proprietor enjoys proportionate share.
Therefore, every member of proprietary class carries a right in the Shamlat-deh of the village. In the present case, in addition to Shamlat-deh, it is acceted that the vendor alienated his built-up property well, the built-up property as well as Shamlat-deh was left out of the suit. In such a situation, unless the application for amendment was moved within statutory period, it was not permissible to allow amendment after the lapse of the limitation. The importance of inclusion of Shamlat-deh in the suit for possession by pre-emption was considered in Muhammad Latifis case (PLD 1979 S.C. AJ&K 123) by the Supreme Court, in the following manner:- We are, therefore, of the view that 'Shamilat Deh' is a property for all practical purposes and intent.
The 'share' or 'right' in Shamilat Deh land as said earlier being synonymous has a separate entity and it is not a 'right' attached with some land or with some individual".
8. The learned Counsel for the petitioner argued that the plaintiff failed to include whole property under alienation, on account of mistake committed by the petition-writer who drafted the plaint.
The application for amendment moved before the lower Court carries the aforesaid explanation, but it is not supported by ( any affidavit of the petition-writer who allegedly drafted the plaint and the Counsel under whose instructions the plaint was drafted, verified and signed. In , this view of the position, the statement of facts, in absence of definite proof, finds] no favour of the Court.
9. It is interesting that the application for amendment was moved on] November 30,1989 despite the fact that the objection of partial pre-emption was | raised at very early stage, in the written statement of the vendee. After filing of the j written statement, issues were raised and evidence of the parties was also led. The ] pre-emptor produced his evidence on October 17, 1988 and August 29, 1989.] During all this period, no need was realised to move for amendment of the! Pleadings.
This suggests that the pre-emptor was not diligent in prosecution of hisl case. Be that as it may, the fact remains that the impugned order does not suffer] from legal defect.
There is no force in the petition. It is, therefore, dismissed with costs.