1. ' This is the plaintiff's second appeal arising out of a pre-emption suit. The trial Court had decreed the pre-emption suit in his favour, on 26-6-1969, subject to payment of Rs,5,000 as sale price of the land to be paid before 26-7-1969. In appeal by the vendee-defendants, judgment of the learned trial Court was reversed and the pre-emption suit was dismissed by learned Additional District Judge of Gujranwala District, on 11-11-1971. Thereupon, the plaintiff came up in second appeal to this Court. It was admitted, on 13-9-1972. Plaintiff-appellant died during the course of second appeal.
2. His legal-representatives were substituted for him on record. They are represented by Ch. Muhammad Yaqoob Sidhoo, Advocate.
3. ' Necessary facts bearing on the decision of this appeal briefly set out are: Inayat Ullah sold 17 Kanals, 3-1/2 Marlas of land, at Mauza Ferozewala, in Tehsil and District Gujranwala to Mst. Saleema Begum, Mst. Rafiqa Begum, Mst. Rashida Begum, Mst. Umat-ul-Salam, Mst. Bushra daughters of Muhammad Saeed for a sum of Rs,5,000 by a deed of sale registered on 31-5-1966. Ch. Sultan Ahmad as plaintiff claimed pre-emption in respect of the above sale. He asserted his superior right of pre-emption on account of being a collateral of the vendor and owner of the revenue estate.
4. Pre-emption suit was instituted on 29-5-1967, in the Court of Administrative Civil Judge, Gujranwala. In the cause title of the plaint, description of the plaintiff and defendants was given.
5. Similarly, in para 1 of the plaint, the names of all the five vendees were mentioned.
6. ' Defendants submitted their written statement and contested the preemption suit filed against them. Principal defence was that name of Mst. Rashida Begum, who was one of the vendees of the land in dispute, was initially omitted from the cause title and was later interpolated in it unauthorisedly for saving of the pre-emption suit from failing on account of partial pre-emption. A separate application for pointing out tampering with the record of the Court was also submitted on behalf of the defendants. The trial Court deemed it expedient to take notice of it after determination of the points at issue between the parties and, consequently, settled issues on merits. These were:--
(1) Whether the plaintiff has a superior pre-emptive right as against the vendee defendants? OPP.
(2) Whether the sale price of Rs,5,000 was fixed in good faith or actually paid? OPD.
(3) Whether the vendee defendants spent an amount of Rs,288 over the registration of the sale- deed and if they are entitled to its recovery from the plaintiff? OPD
(4) What is the market value of the suit land? Onus on parties.
(5) Whether Mst. Rashida Begum, the defendant No3 was collusively inserted in the plaint, as such after filing of the plaint and as such the plaintiff's suit is time-barred as well as for partial pre- emption? OPD.
(6) Whether the plaintiff is estopped to sue through his conduct? OPD.
(7) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? OPD.
(8) Relief.
7. ' After settlement of the issues, the suit was adjourned for plaintiff's evidence on 27-2-1968. Before evidence could be taken, defendants addressed a miscellaneous application to the trial Court for shifting of onus of proof in respect of issue No,5 to the plaintiff. He resisted it. By an order of 20-3- 1968, learned Administrative Civil Judge dismissed the application. It shall be a profitable exercise to quote this order in extenso. It reads:- "This is order to dispose of the application of the defendants filed for the change of the onus of issue No,5. It is alleged that the name of Rashida Begum was inserted subsequently in the heading of the plaint. A copy of the plaint supplied to the defendants misses the mention of the name of Rashida Begum in its heading. On the date of the framing of the issues this Court had called for the register of civil suits. No overwriting in the entries to the effect was observed. Rashida Begum was entered into as one of the defendants in the register. The body of the plaint too finds a specific mention of Rashida Begum as one of the defendants. The act of Ahlmad to incorporate the entries of civil suits in his register was in the performance of his official duties and presumption of correctness is attached to it. On the date of filing of written statement Rashida Begum's name was found already inserted in the heading of the plaint. At first, the summonses were not issued in her name. Fard process service fee annexed to the plaint was meant for four persons as defendants. It had later on transpired that Umatul-Salam and Bushra impleaded as defendants 4 and 5 are for one composite name as Umat-ul-Salam Bushra. The defendants are alleging collusion on the part of the plaintiff, while plaint is prima facie found correct in its entries. Hence, it be the defendants to prove the issue framed as issue No,5. Application is rejected."
8. ' Defendants preferred a Revision--Civil Revision No,323 of 1968 from the order of the trial Court rejecting their application for shifting of onus on issue No,5. It was dismissed by Mr. Justice Fazal-e- Ghani, as he then was. He observed, "The learned trial Court has given cogent reasons for his conclusions that the suit was filed in the Court was duly registered by the clerk and the entries in the register of the suits did not disclose any overwriting etc. In these circumstances, the presumption drawn by the learned trial Court was perfectly justified that the Ahlmad who has made these entries has done so in the due discharge of his official duties and his action is presumably correct. In these circumstances, the onus of the above issue has rightly been placed upon the petitioners-defendants". With these observations, civil revision was dismissed in limine on 9-5-1968. The dispute was not agitated further.
9. ' On 13-6-1968, the counsel for the plaintiff produced copy of the sale-deed Exh. P.1, copy of Khautuni of the land-in-dispute Exh.P.2; copy of Shajra Nasb Exh.P.3 and copy of Khautuni respecting plaintiffs land Exh. P.4 and closed evidence by reserving the statement of the plaintiff to be recorded after close of defendants' evidence. Thereupon, the defendants entered upon their defence and commenced leading their evidence. Ch. Khurshid Ahmad, Reader of the trial Court gave his evidence as D.W. 1 and proved his report Exfi.D.1, wherein he had recorded in pencil about personal service of Saleema Begum, Rafiqa Begum, Umat-ul-Salam and Bushra. His report was based upon the report of process-server made on the summons issued for service of the defendants for 3-7-1967 marked Exh.D-2. It was clear that in the. Aforesaid summons name of Rashida Begum was not mentioned. It was also seen from Exh.D-3 that a process-fee of eight annas only was deposited for summoning of four defendants, though their names were not indicated in it. In cross-examination, the witness admitted that summons Exh. P.5 was issued to all the five defendants including Rashida Begum. Testimony of D.Ws. 2 to 4 was not relevant to the point at issue. Therefore, it was unnecessary to refer to it. D.W. 5 was Naib-Nazir. He deposed that in his register, service on Mst. Rashida was not mentioned. However, in cross-examination, the witness admitted that at serial No,7773, service on all the five defendants was mentioned in the register.
10. D.W.6 Muhammad Saeed admitted that Umat-ulSalam Bushra was one name and she was his daughter. She appeared as D.W.7 and produced carbon-copy of the plaint Exh.D.6 in evidence. It was marked an exhibit, subject to an objection. Exh.D.6 did not contain the name of Mst.Rashida Begum in the cause title of the plaint. The names mentioned therein were: (1) Mst. Saleema Begum,
(2) Mst.Rafiqa Begum, (3) Umat-ulSalam, (4) Bushra daughters of (name is not legible). In a further bracket, name of Muhammad Saeed was mentioned. The carbon copy Exh. D.6 produced in the testimony of D.W.7 was tendered in evidence, on 7-12-1968. Prior to it, it was not brought on the record of the trial Court. There was no guarantee of its accuracy, nor was its correctness proved in accordance with law. The plaintiff and his witnesses were not confronted with it. Copies of the plaint received by other defendants were not placed in evidence. Therefore, it could not be said with certainty that carbon-copy Exh. D.6 was a true copy of the plaint initially presented in the trial Court. In rebuttal, the plaintiff produced Inayat Ullah, Stenotypist to the Administrative Civil Judge, Gujrat. On 29-5-1967, he was working as Ahlmad Diwani in the Court of Administrative Civil Judge, Gujranwala. He deposed that an order for registration of the suit was made by the Court on 30-5- 1967 and he entered the particulars of suit in the relevant register on the same or the following day wherein he had entered the names of all the five defendants, namely, Saleema Begum, Rafiqa Begum, Rashida Begum, Umat-ul-Salam and Bushra. He had taken their names and description from the plaint. He also deposed that summons Exh.P.5 was issued by him. He conceded that summons Exh. D.2 was also in his hand which did not contain the name of Rashida Begum. He described it as an act of overlooking. In cross-examination, the witness admitted that a process- fee of eight annas only was deposited for four defendants and that he had not noticed that there were five defendants in the case and process-fee had been deposited in respect of four only. He also admitted that the name of Rashida Begum was written above the main line of the defendants.
11. The plaintiff appearing as P.W.2 did not depose on the point at issue nor was he cross-examined on it. The Advocate who had drafted the plaint or his clerk associated with him were not produced in evidence regarding the alleged interpolation in the cause title of the plaint.
12. ' Upon scrutiny of the material on record, learned trial Court found that the name of defendant No,3 (Rashida Begum) was not subsequently added. "She was as good a party at the time of the institution of the suit as the plaintiff and the other defendants were. The suit is neither time-barred nor for partial pre-emption". As the plaintiff was possessed of superior right of pre-emption and plea of estoppel was not established against him, his pre-emption suit was decreed in his favour.
13. In appeal, upon re-appraisal of the record, learned Additional District Judge concluded, "It would thus appear beyond any manner of doubt that Rashida Begum as a defendant did not figure in the original plaint, and her name was subsequently added when the error was discovered. The fact that her name was mentioned as one of the vendees in the body of the plaint does not make any difference, and does not go to show that her name also existed in the title of the plaint when it was originally filed. For purpose of description of detailed facts, several names, even of those who .Are not parties to the litigation are generally mentioned in the text of the pleadings, but that does not ipso facto imply that all of them have been named as parties to the proceedings. Only those who have been arrayed as plaintiffs and defendants would be deemed to be parties to the suit.
14. Particularly as it was a pre-emption suit, this omission on the part of the plaintiff pre-emptor would not be considered to be of no material consequence. Obviously, when the suit was instituted, Rashida Begum was not a co-defendant. The sale that was preempted had been effected in favour of the defendants, including Rashida Begum. It would be deemed that the sale in favour of the other three defendants only and not the sale in respect of Rashida Begum had been assailed. It would thus become a suit for partial pre-emption, which cannot proceed. As Rashida Begum was impleaded as a party to the suit after 3-7-1967, the suit against her had become patently time- barred also, as the sale dated 31-5-1966 had been pre-empted. Evidently the suit was untenable and was liable to dismissal on the ground of partial pre-emption as well as limitation. The finding of the learned lower Court respecting issue No,5 is reversed, with the result that the suit stands dismissed".
15. ' Seen from the above, only point surviving for decision in the second appeal was, whether Mst.
16. Rashida Begum was a defendant in the pre-emption suit, when the plaint was first presented before the trial Court. Related to it was the point touching on the question of alleged interpolation of her name in the cause title of the plaint. It was urged on behalf of the appellants that interpolation in the plaint was not proved; the cause title synchronized with the number of vendees given in para 1 of the plaint and even if there was some omission respecting a defendant in the cause title of the plaint as originally presented, mention of all the vendees in para 1 of the plaint shall cure the defect and supply the omission. In support of this contention, learned counsel relied on Deolal and others v. Tularam Ramsukh AIR 1928 Nagpur 319; Ramprasad Chimanlal v. Hazarimull Lalchand AIR 1931 Calcutta 458; Bhawarjit Chetri v. Kedarmal Banarasilal AIR 1954 Assam 111; Budho and others v. Ghulam Shah PLD 1963 SC 553; Ghulam Mohyayyuddin and another v. Sher Khan and 4 others 1970 SCMR 200; Sarfraz and others v. The State 1991 CLC Note 214 (at page 168). Upon the above premises, it was urged by learned counsel for the appellants that neither the pre-emption suit was barred by time nor did it suffer from the vice of partial pre-emption.
17. ' Mr. CA. Rehman, Advocate, learned counsel for the respondents argued that the plaintiff was guilty of forging Court records, and, therefore, he was not entitled to any assistance from it. Upon reference to the evidence, learned counsel tried to show that name of Mst. Rashida Begum was interpolated in the cause title of the plaint subsequently. He relied on cases reported in Agent, Bengal Nagpur Ry. v. Behari Lal Dutt AIR 1925 Calcutta 716; Jawala Das and others v. Gopal Lal (Pre- emptor) and Des Raj and others AIR 1925 Lahore 343; Ahmad Khan v. Muhammad Afzal etc. PLD 1979 Lahore 647; Abdul Rehman and another v. Faiz Bakhsh and others 1989 CLC 2338.
18. ' A careful look at the plant would indicate that initially Mst. Saleema Begum, Rafiqa Begum, Umat- ul-Salam, Bushra daughters of Muhammad Saeed were impleaded as defendants Nos. 1 to 4 in the cause title of the plaint. Saleema Begum was defendant No,1; Rafiqa Begum was defendant No,2; Umat-ul-Salam was defendant No3 and Bushra was defendant No,4. Their names were written in one line and in the same hand. Thereafter, the serial numbers of defendants were altered and Mst.
19. Rashida Begun was entered above the line at serial No,3. Consequent changes were made as regards serial numbers of Umat-ul-Salam and Bushra. The alteration in the cause title of the plaint was signed. It was not known, whose signatures it bears. Initially, a process-fee of eight annas for four persons was deposited in the trial Court. It was so written at two places on the Fard Talbana.
20. Summons was also issued for the four defendants. It did not include the name of Mst. Rashida Begum. The report by the Reader Exh. D-1. Also shdwed that only four defendants, namely, Saleema Begum, Rafiqa Begum, Umat-ul-Salam and Bushra were personally served. There was no mention of Rashida Begum in Exh. D-1. Ahlmad of the trial Court gave evidence that he had entered names of five defendants in the register of institution of suits, either on 30-5-1967, or on the following day and that though he had issued the summons Exh. D-2 for four defendants but it was a case of oversight only on his part. Statement by the Reader of the Court, Fard Talbana and summons issued in the first instance greatly minimised the accuracy of his statement. The drafter of the plaint, the Advocate or the clerk, could have easily entered the witness-box for dispelling the doubts regarding later interpolation of the name of Mst.Rashida Begum in the cause title of the plaint. Surprisingly, the plaintiff did not consider it expedient or advisable to record their evidence.
21. Why was this simple course not adopted was not ascertainable from the present record. In the evidence of Muhammad Saeed, Umat-ul-Salam Bushra was the name of his one daughter.
22. Therefore, the sale was in favour of four vendees only, namely, Mst. Saleema Begum, Mst. Rafiqa Begum, Mst. Rashida Begum and Umat-ul-Salam Bushra. Record did not sufficiently exclude a possibility of a later addition of the name of Mst. Rashida Begum in the cause title of the plaint. But in my opinion, it shall not materially affect the decision of the pre-emption suit. Pleading means the plaint or the written statement. Order VI of Civil P.C. Deals with pleadings generally. Rule 3 of Order VI deals with forms of the pleadings. It provides that the forms in Appendix A, when applicable shall be used for all pleadings. Rules 14 and 15 of Order VI provide for signing and verification of the pleadings. Order VII, rule 1, provides for particulars to be contained in the plaint. It states that the plaint shall contain the name of the Court in which the suit is brought, the name, description and place of residence of the plaintiff; the name, description and place of residence of the defendant, so far as they could be ascertained; where the plaintiff or the defendant was a minor or a person of unsound mind, a statement to that effect; the facts constituting the cause of action and when it arose; statement of facts showing that the Court had jurisdiction; the relief which the plaintiff claimed; a statement about valuation of the suit for purposes of court-fee and jurisdiction and where the plaintiff allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished. In the titles of suits, in the form of pleadings in Appendix A, it provided for description of residence of the plaintiff and the defendant. Ordinarily, the name, description and place of residence of the parties must appear in the cause title of the plaint as a most convenient place for it and usually it is so. However, if there was any omission in this behalf in the cause title and the body of the plaint gave sufficient particulars of the defendants and their identity also against whom plaintiff filed the suit and claimed relief, the matter shall then be reduced to a mere irregularity of inconsequential nature. Looked at the plaint from this perspective, there was no dispute that the plaint sufficiently contained full particulars, of all the vendees including Mst.
23. Rnchida Begum and, hence, she could not be deemed to have been omitted from the pre-emption claim. She could then be very well-treated as a party to the preemption suit since its very inception. It was held in Mahboob Ullah v. Jwala Prasad Kajriwal and another AIR 1974 Allahabad 413 that "Cause title of the suit can never be treated as part of the plaint as, for one thing, it is not covered by the verification appended at the foot of the plaint". For a true discovery of the nature of lis between the parties, the relief claimed in it and the persons against whom it was claimed, whole body of the plaint must be looked at and thoroughly examined by the Court. No part of it should be excluded from the purview, for the task of administration of justice is sacred and difficult also. It demands an all-pervasive care and attention from the Court. The irregularity in properly preparing the cause title of the plaint was also condonable under section 99 of the Civil P.C. As it did not affect the decision of the pre-emption suit which otherwise was correct on merits.
24. ' View expressed in the case of Jawala Das and others was not followed in Muhammad Arshad Khan and another v. Murad Khan and others PLD 1965 (W.P.) Peshawar 225. Cases in Agent, Bengal Nagpur Railway, Ahmad Khan and Abdul Rehman (supra) proceeded on distinguishable facts and were not helpful. No case directly on point was brought to my notice. The case from Allahabad jurisdiction was parallel to the facts in the case. I have, therefore, taken it to provide a proper guideline to follow.
25. ' For the foregoing reasons, I allow the appeal and set aside the judgment and decree of learned Additional District Judge, dated 11-11-1971 and restore the decree of learned trial Court dated 26-6- 1969 by leaving the parties to bear their own costs throughout. Records be returned.