This R.S.A. Arises out of a suit for pre-emption filed by the respondent on 2-9-1972 in the Civil Court, Chakwal, claiming pre-emptive right on the ground of being owner in the Shamlat Deh. The, disputed land measuring 18 Kanals 12 Marlas comprising Khasra No,307, Khewat No,87, Khatuni No,203 situated in village Tajbal, Tehsil and District Chakwal was sold through Mutation No,432 dated 31-9-1971. The appellants resisted the suit and filed their written statement in the Court stating therein that the respondent's alleged ownership in Shamlat Deh could not form basis of pre-emptive right. The trial Court framed the following issues:--
(1) Whether the suit is not maintainable in the present form? OPD
(2) Whether the plaintiff has got the superior right of pre-emption? OPP
(3) Whether Rs,3,000 was fixed or paid in good faith as the price of the suit land? OPD
(4) Market value? OP Parties.
(5) Whether the defendants are entitled to special costs under section 35, AC. P. C .? OPD
(6) Relief.
2. After the lapse of about two years, the respondent filed an application for amendment of the plaint in order to add some new grounds therein. The new ground was that' he was owner in the estate. The appellants opposed the application but it was allowed by the trial Court vide order dated 24-1-1974. After recording evidence of the parties and perusing the same the trial Court dismissed the suit vide judgment and decree dated 3-12-1974. The respondent preferred an appeal before the learned District Judge, Jhelum which was allowed by the District Judge vide judgment and decree dated 2-6-1975.
3. The appellants' learned counsel contends that the trial Court illegally allowed amendment of the plaint after expiry of the period of limitation. He submits that the Appellate Court wrongly held the respondent to be co-sharer and allowed the appeal. In support of his contention, he relies on the judgment in the case of Shah Muhammad and others v. Hayat and others PLD 1960 (W.P.) Lahore 975.
4. On the other hand, learned counsel for the respondent submits that the trial Court had rightly allowed the amendment for adding a new ground regarding the respondent's ownership in the Khata. In this connection he relies on the judgment in the case of Bahadur Shah and 2 others v.
Sharaf and 9 others PLD 1973 Lahore 513. He further submits that by virtue of the document Exh.P.3 respondent became a co-sharer in the disputed land. He submits that a vendee or a co-sharer of a specific Khasra number in the Khata becomes a co-sharer in the entire Khata. Reliance is placed on the judgment in the case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9.
5. The arguments raised by the appellant's learned counsel have considerable weight. The suit was instituted almost on the last day of limitation. The appellants filed their written statement in the Court on 25-10-1972 in which they specifically took an objection that a co-sharer in Shamlat Deh had no right of pre-emption but the respondent did not promptly take steps to seek amendment of the plaint and instead insisted in the replication that the averments already made in the plaint were correct. It was only after the lapse of about two years that the respondent realised his blunder and filed an application on 24-7-1973 for amendment of the plaint in order to add a fresh ground for claiming pre-emptive right on the basis of his being a co-sharer in the Khata. The only reason stated in the amendment application was that the ground regarding ownership in the khata was inadvertently omitted from the plaint as originally filed. Obviously, it was not true because the respondent, despite an objection in the written statement, reiterated in the replication the averments already made by him in the plaint. However, the trial Court allowed the amendment application vide order dated 24-1-1974 on payment of Rs,25 as costs. The argument of the appellants' learned counsel that the trial Court illegally allowed the amendment application long after the expiry of the period of limitation which had the effect of prejudicing the appellants' rights, carries great weight. In Shah Muhammad's case the facts and circumstances were similar to those of the present case. In the precedent case, the plaint originally filed did not embody any legal ground showing superior pre-emptive right of the plaintiff. On an objection raised by the defendant, the plaintiff sought amendment of the plaint to add a new ground regarding his ownership in the Khata. The prayer for amendment of the plaint was turned down by the trial Court and the suit was also dismissed as the plaint did not disclose any superior pre-emptive right of the plaintiff. The order and judgment passed by the trial Court were maintained by a Division Bench of this Court in the above-referred case. It was held that although the Court's discretion to allow amendment was very wide but amendment was not to be allowed if it was going to change the entire complexion of the suit. It was further held: " I am clear in my mind that if, in a suit-for pre-emption a plaintiff wants to amend his plaint in order that he may be able to plead that he had a superior right of pre-emption, while in the original plaint his plea was not to that effect, the Court will be slow to allow the amendment unless the omission, in the first instance, was either accidental or due to a slip of the pen."
' It was further held: "As I have already mentioned, the vendees had pleaded in their written statement dated the 9th of April, 1953, that the right of pre-emption could not be claimed on the ground mentioned in the plaint, and if the plaintiffs had been vigilant, they could have put in an application for amendment soon after the written statement was put in, but they waited for over eight months before putting in the application under Order VI, Rule 17 of the Code of Civil Procedure."
In the present case, as observed above, the omission of the ground, sought to be added through amendment of the plaint, was neither accidental nor due to a slip of the pen. Had it been so, then on an objection raised in the written statement that mere co-sharership in the Shamlat Deh did not furnish a valid ground for pre-emption, the respondent-plaintiff should have at once conceded the correctness of the objection and sought amendment of the plaint. However, he insisted through his replication that the averments already made in the plaint were correct. He came forward with an application for amendment of the plaint after the lapse of about two years when valuable rights in the disputed property had accrued in favour of the appellants. Under the above circumstances, the trial Court clearly acted illegally -and with material irregularity in allowing amendment of the plaint. The respondent's learned counsel has relied on the judgment in the case of Bahadur Shah in support of his contention that an amendment application can be allowed at any stage. There is no cavil with the said proposition of law but each case has to be decided in the light of its own peculiar facts. In Bahadur Shah's case the amendment merely related to the area of the plot in dispute which was otherwise correctly described in the plaint with reference to Khata numbers of the land. The amendment was relatable to a slight error/omission occurring in the plaint in respect of Khasra numbers and was considered by the Court to be merely of formal nature. However, in the present case the amendment was not of formal nature and was meant to add a ground without which the suit certainly merited dismissal. The other judgment in Muhammad Muzaffar Khan's case relied upon by the respondent's learned counsel merely shows that a vendee from co-sharer of specific Khasra number in joint Khata becomes a co-sharer in the Khata. This proposition of law becomes relevant only after the order allowing amendment of the plaint is upheld. However, I have held above that the trial Court had acted illegally and with material irregularity in allowing amendment of the plaint in the circumstances of the present case. Therefore, the order dated 24- 1-1974 passed by the trial Court allowing amendment of the plaint is set aside.
6. For the foregoing discussion, the appeal is accepted, the findings of the Appellate Court on Issue No,2 are reversed and the judgment and decree dated 2-6-1975 passed by the learned District Judge are set aside. The findings of the trial Court on issue No,2 are restored but on a different ground that is to say that the plaintiff-respondent's claim of having superior pre-emptive right on the ground of ownership in the Shamlat Deh is not recognized under the Punjab Preemption Act.
Maintaining the findings of the trial Court on issue No,6 relating to relief, the decree of the trial Court dismissing the respondent's restored. The parties are left to bear their own costs.