Manga, plaintiff, brought a suit for possession by pre-emption of suit land comprising Survey No AM, including the share of the vendors in Shamilat of the village. The sale-deed was executed on November 25, 1987 by Mst. Sahib Ji and others, 5 in number, in favour of Muhammad Yunus and Muhammad Bashir, in consideration of Rs.1,20,000. The sale was pre-empted by Manga. The suit was instituted on November 24, 1988. It was averred that the pre--emptor was a collateral of the vendors and co-sharer in the suit land, as such he enjoyed prior right of purchase. The written statement was filed by the vendees on March 12, 1989. They claimed waiver against the pre-emptor and supported the price of the land, entered in the sale-deed. The suit was dismissed for want of proof, on October 31, 1991. An appeal was preferred before this Court. During the pendency of the appeal, the defendant-vendees moved an application for amendment, to raise the plea of partial pre-emption. The application was not contested. In presence of the additional ground, in defence of the vendees, it was deemed expedient to allow the appeal and to remand the case for its disposal on merits. The order of this Court was passed on January 27, 1993. The amended written statement was presented in the Court of Sub-Judge, Dadyal, on March 13, 1993, wherein plea of partial pre--emption was added as preliminary objection. On March 20, 1993, an application for amendment pf the plaint was moved by the pre-emptor. It was prayed that the pre-emptor may be allowed to amend his plaint by including the share of the vendors in the Shamilat Deh land and trees standing on the land, as entered in the sale-deed. The application was opposed. The learned Sub-Judge allowed the application for amendment of the plaint, in view of the verdict of the Supreme Court recorded in Muhammad Iqbal's case (1992 SCR 190). The order was passed on August 21, 1993. This order is assailed in the present petition. .
2. Ch. Muhammad Sabir, the learned counsel for the petitioners contended that the omission to sue for whole of the alienated property was mala fide. The delay in moving the application after expiry of limitation postulated for a suit for possession by pre-emption, was fatal to the case of the plaintiff. He referred to (PLD 1987 AJK 170) and (PLD 1989 SC (AJ&K) 56) Ch. Lal Hussain, the learned counsel for the opposite side, controverted the aforesaid points and supported the impugned order, in the light of the verdict of the Supreme Court in Muhammad Iqbal's case (1992 SCR 190). It was emphasised that an omission to include the Shamilat land and fruit-bearing trees was bona fide. It was a case of mere carelessness and negligence. Therefore, the learned Sub-Judge rightly allowed the amendment in the case.
3. The rules of procedure applicable to the amendment of pleadings are postulated under Rule 17 of Order 6, C.P.C. The legislature has empowered the Court seized with the matter, to allow the amendment of pleadings, at any stage of the proceedings. However, the discretion is restricted as, according to the language of the Rule, it is imperative that the amendment of the pleadings may be allowed in such manner and on such terms as it may be just. It was further provided that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The second part of the rule postulates that the amendments which are found necessary in order to determine the real questions in controversy between the parties, have to be allowed by the Court. The intention of the legislature is evident that an amendment which is relevant and necessary to the proposition under consideration, has to be permitted.
4. The consensus is that an amendment may not be allowed when it was likely to change the nature of the suit or cause of action, or both. In cases where; on account of an omission to raise a plea in the pleadings, a valid right was accrued to the opposite party, in such cases the amendment was not permissible. Besides, it was enjoined upon the Court to ensure that the amendment was not mala fide. No other restrictions have been construed by the superior Courts of the Sub-Continent and England, to disallow the amendment of the pleadings of the parties in a civil action. The principle of law laid down in Muhammad Iqbal's case (1992 SCR 190) is identical. In Muhammad Iqbal's case (PLD 1987 Azad J&K 170), the principle of law laid down therein is that the amendment of pleadings should be allowed liberally and it may not be refused unless it is mala fide. In view of peculiar f4cts of that case, the proposition was found against the pre-emptor on account of mala fides. Raj Muhammad's case (PLD 1989 SC (AJ&K) 56) has been considered in Muhammad Iqbal's case. Therefore, it needs no further analysis of the principle laid therein.
5. In the present case, it is evident from the pleadings of the pre-emptor that he failed to sue for Shamilat and fruit-bearing plants, of the share of the vendors, as entered in the sale-deed. The vendees in their written statement, equally failed to raise the plea of partial pre-emption, in their written statement. It appears that it was at a very late stage of appeal in this Court when it came to the notice of the vendees that Shamilat and fruit-bearing trees were not included in the suit property. An application for amendment was moved in this Court during the hearing of the appeal.
It was accordingly permitted. The amendment of written statement was placed before the trial Court on the remand of the case. A week thereafter, an amendment in the plaint was sought by the pre-emptor. That leads to the conclusion that both the parties moved for amendment of the pleadings after the lapse of identical period. Therefore, the petitioners have no choice to plead `delay' against their opponent.
6. A perusal of the sale-deed reflects that the description of the share of the vendors in the Shamilat land and fruit-bearing plants was entered at an improper place, after recital of particulars of the vendees. These were described at an unusual place. Ordinarily, such recitals were made at the end of the description of the land under sale. This is an apparent reason resulting in the omission to sue for the property in question. An identical omission was noticed in the pleadings of the vendees who were well-conversant with the description of the property alienated to them through registered sale-deed, executed in their favour and in their possession. The negligence is, therefore, not on the part of the plaintiff-pre-emptor but on the part of clerk of the Counsel or the Counsel who drafted the plaint. Similar was the position of the vendees. No objection of part partial pre-emption was raised in the written statement due to carelessness of the Counsel who drafted the un-amended written statement.
7. The proposition under consideration is, therefore, fully protected by the verdict of the Supreme Court, recorded in Muhammad Iqbal's case referred to above. The petition merits no consideration.
It is dismissed. No order as to costs.