KHAWAJA MUHAMMED SAEED, J:- Through the present revision petition, the order dated February 4, 1990, passed by the learned Additional Sub Judge Muzaffarabad, has been assailed, by which the application of the petitioner moved under Order 6 Rule 17, C.P.C., seeking amendment of the plaint, in order to add prayer of possession in his suit, has been rejected.
2. Necessary facts briefly stated are that respondent No.2 vide sale deed dated August 21,1984 sold the land measuring 91 kanals and 15 marlas, situate in village Chattar Kales, Tehsil and District Muzaffarabad to respondent No. 1. The plaintiff-petitioner claimed right of pre-emption in respect of this sale vide his suit filed on March 17, 1985. In para 5 of the suit, he claimed that out of the suit land, land measuring 23 kanals and 7 marlas comprising survey number 511 was under his possession since 1972. Later on, he moved an application seeking amendment in the plaint in order to add prayer of possession. In his suit vide application dated October 6, 1980. Objection to this application were filed by defendant-respondent No. 1 on March 27, 1988. After lapse of a considerable lime, the application for amendment was rejected by the trial Court vide impugned order dated February 4, 1990 inter alia on the grounds that application for amendment has been moved after the period of limitation and that a valuable right has accrued by lapse of time to the defendant-respondent. This order of the trial court is the subject of controversy in the instant revision petition.
3. I have heard the learned Counsel for the parties and have gone through the record of the case.
4. The learned Counsel for the petitioner argued that inadvertantly, the remedy of possession was not sought for in the original plaint. According to him, the proposed amendment put forth through the application of amendment by the plaintiff-petitioner, will not change the nature of the suit and cause of action. Moreover, by this inadvertant omission, no valuable right has accrued to defendant- respondent, as such the order impugned in this revision petition is bad in law.
5. As against this, the learned Counsel for the respondents contended that the proposed amendment shall change the nature of the suit and cause of action and that the application for amendment was moved beyond the prescribed period of limitation, as such by lapse of time a legal right has accrued to defendant-respondent. Furthermore, a discretionary order has been passed by the trial Court. This revision petition, under the circumstances, therefore, is liable to be dismissed.
6. Order 6 Rule 17, C.P.C, postulates that amendment could be allowed at any stage in the interest of justice. Under Order 6 Rule 2, C.P.C, the pleadings must contain material facts which arc n tied by a parly for its claim. Thus, under Order 6 Rule 7 of the Code, no new thing for the claim can be raised or to other grounds could be proved except by seeking amendment under 0.6 rule 17 C.P.C.
Under order 6 rule 17 of the Cost, the Court is empowered to allow amendment in all cases where it may be just and proper to do so. No doubt all the superior Courts of sub-Continent held unanimously that amendment whereby altogether a new case is set up or where the effect of amendment is to take away from the defendant a legal right which has accrued to him by lapse of lime or whereby the cause of action is changed such amendment should not be allowed. The suit of the plaintiff-petitioner is primarily based on right or pre-emption. Suits for preemption arc .Impliedly considered the suits for possession. By making amendment in the suit neither cause of action shall change nor any other right accrued to the defendant-respondents shall be taken away from him. The learned Counsel for the respondents relied on 1980 C.L.C.1866. Wherein right of preemption be exercised on the basis of relationship. In second appeal, it was argued that right of pre-emption on the basis of relationship was declared repugnant to the injunction of Islam by the Supreme Court, as such the suit of the respondents should be thrown away as it was based on relationship. The High Court in that case held that decree has been passed in favour of the respondent and a valuable right has accrued to him under decrees of the Courts below, as such the authority of the Supreme Court would not apply retrospectively to set at haught the rights accrued under the decrees. So this case is distinguishable from the facts of the case under consideration. The learned Counsel also relied on P.L.D. 1972 AJ&K 22. The facts of that case were that name of the vendee was correctly given in the plaint but the name of his father was not correctly given in the plaint. He moved an application seeking amendment to correct the name of the father of the vendees in the plaint. Prayer was allowed by the trial Court. A revision petition was taken against that order to the High Court which was later on dismissed and the order of the trial Court for amendment was kept intact. No doubt it was held that amendment that put forth a new cause of action or a new relief or change the cause of action, or take away a legal right that had accrued to a party by the lapse of time should not be allowed. This authority is also distinguishable.
Another authority cited by the learned Counsel for the respondents was P.L.D. 1985 AJ&K 32. The facts of that case were that during the hearing of the appeal in the Court of District Judge Mirpur, the defendant-appellants moved an application for amendment under Order 6 Rule 17 of the C.P.C, seeking amendment in the written statement to the effect that they were in adverse possession of the suit land. This application was rejected by the learned District Judge Mirpur. In second appeal, this point was again agitated before High Court. The learned Judge in the High Court held that the proposed amendment would amount to setting up of quite an inconsistent defance with that of original pleadings in the written statement. The limitation for exercising right of pre-emption has been prescribed in limitation Act and impliedly & suit for pre-emption is also considered a suit for possession against the vendees. It means substitution in all respects. So, in my view the proposed amendment shall not change the cause of action or nature of the suit.
Under these circumstances, the revision petition is accepted. The petitioner is allowed to amend his plaint in the light of his application moved on October 6, 1985 keeping in view the circumstances of the case. I pass no order as to costs.