This Constitution petition has been directed against the order dated 3-4-1982 of the learned Civil Judge, Kasur rejecting the application seeking amendment of the written statement and the judgment dated 5-9-1984, whereby the revision petition filed against the aforesaid order of the Civil Judge was dismissed. The petitioner in para.1 of his written statement dated on 25-9-1981 stated, "that para.1 is correct to the extent that house was owned by Chiragh Din, but it is incorrect that plaintiff is son of Chiragh Din". He then moved an application dated 19-1-1982 for substituting the afore-noted para. 1 written statement as under:- This substitution was sought to be made with the plea that the original registered sale-deed in respect of house in dispute executed on 6-8-1939 and registered on 7-8-1939 has become available now and as such permission to `amend the written statement be granted in the interest of justice. It was added that proposed amendment will neither change nature of the suit nor that of the written statement rather the documentary evidence would lead to establishing true facts. This amendment was disallowed by the learned Civil Judge observing that the plea taken in the para. Sought to be substituted being inconsistent with the contents of the para. Of the written statement, the para cannot be allowed to be substituted and that the sale-deed in favour of Mst. Rajan Bibi is in respect of the land measuring 5/1-4 Marlas while the suit is in respect of house which has been admitted to be owned by Chiragh Din. This order dated 3-4-1982 of the learned trial Court was not interfered with in revision by the learned Additional Judge, Kasur. The revision, was dismissed vide order dated 5-9-1984 with the observation that the document relied upon by the petitioners prima facie does not show that the house in dispute was exclusively owned by Mst. Rajan Bibi and that the petitioners have not shown any bona fide for the said alleged mistake.
2. I have heard learned counsel for the parties. Learned counsel relying on Sh. Alauddin v. The Central Exchange Bank Limited, Lahore (under liquidation) (PLD 1960 (W.P.) Lahore 446), submitted that though inconsistent pleas cannot be taken, but this general proposition is subject to the proviso that if the original plea was due to misapprehension, if may be withdrawn. However, it must be shown that there was a misapprehension. Learned counsel urged that both the Courts below by making the refusal have exercised the jurisdiction arbitrarily and illegally and that in the context of the pleas taken in the plaint itself and the fact that the registered sale-deed pertained to the land underneath the house in question, the mistaken admission should have been allowed to be withdrawn. It was added that at best the petitioners should have been put to prove that the admission contained in the para. Was mistaken and whether the sale-deed in question pertains to the land under the house in dispute. As regards bona fides, it was pointed out that the application was made within six months of the filing of the written statement when the sale---deed became available and that Mst. Rajan Bibi as well as her son Muhammad Tufail predecessor-in-interest of the petitioners, had died earlier to the filing of the suit.
3. Learned counsel for the respondent in reply did not dispute the proposition of law laid down in the afore-noted precedent but he opposed the application for amendment on the plea that the sale-deed pertains to a plot and not to a house.
4. I have considered the respective submissions of the parties. It is well---established that admission made on account of mistake of fact or misapprehension, can be allowed to be withdrawn. This principle was not kept in view by the learned Courts below while rejecting the amendment application and the revision petition. The application for amendment was not a belated application as it filed within about six months of the filing of the written statement. It is, therefore, apparent that the alleged mistaken admission was sought to be withdrawn at the very early stage of the suit. Moreover, as submitted by the learned counsel for the petitioners, the amendment could be allowed subject to proof of the plea that the admission as to ownership of Chiragh Din was mistaken one. Learned counsel for respondent expressed that he will have no objection to the allowing of the amendment subject to proving the afore-noted facts and that necessary issues may be framed for trial alongwith issues on merits. In this view of the matter the orders impugned in this petition are hereby set aside.
5. The not result of the above discussion is that application for amendment is allowed in the manner that the para. Sought to be substituted will be allowed to be added enabling the petitioners to establish that the admission contained in para.1 on merits of the written statement is mistaken and as such not binding on the petitioners. The necessary issue shall be framed in this respect and shall be tried alongwith other issues on merits.
6. The parties may now have proceedings in the suit revived. The suit shall be disposed of within six months.
7. The petition stands disposed accordingly with no order as to costs.