1. KHAWAJA MUHAMMAD SAEED, CJ.- This appeal has been filed against the judgment and decree passed by District Judge Bagh on 28th May, 1995, whereby the appeal field by the appeal against the judgment and decree recorded by Sub Judge Dhirkot on 11th November 1994, was dismissed.
2. Briefly stated the facts of the case are that the land comprising Survey No. 636, measures 5 kanals and 17 marlas situated in village Dhirkot was transferred by Ali Akbar Khan in favour of contesting respondent Raja Shakeel Ahmad Khan vide Sale deed dated 5th June, 1989. The plaintiff-appellant filed a pre-emption suit in the Court of Sub Judge Dhirkot on 12th May, 1990, claiming his superior right of purchase on the ground that he was co-sharer in the suit land with the vendor. The defendanprespondent appeared in the Court and denied the averments made in the plaint through his written statement on 21st August, 1990. Later on, on 29th May, 1993, he moved an application for the rejection of the plaint under Order 7 Rule 11 of Civil Procedure Code by contending therein that the pre-emption right was exercised against him on the ground that the plaintiff was co-sharer with the vendor. The vendee, vide Mutation No. 1362 attested on 24th May, 1993, has become co-sharer in the suit land, therefore, the suit is liable to be dismissed. The trial Court vide its judgment and decree dated 11th November. 1994. Dismissed the suit on the ground that during the pendency of the same, the vendee has acquired his status equal to that of the plaintiff-appellant. The plaintiff- appellant assailed this judgment and decree before the District Judge Bagh on 10th December, 1994, but his appeal was dismissed by the first Appellate Court on 5th May. 1995. Hence the present appeal.
2. Mr. Zahoor Ahmad Khan, learned counsel for the appellant raised the following objections on behalf of the plaintiff-appellant:-
(1) that the plaint of his client was rejected on miscellaneous application of the vendee without seeking amendment in the written statement;
(2) that the application moved for amendment by his client after the change of law, was wrongly dismissed by the trial Court. Therefore, on amount of these two objections the judgment and decree under appeal is liable to be set aside. He prayed that the application moved bv his client for amendment be allowed and the case be remanded to the trial Court for decision on merits in accordance with law.
3. On the other hand leamed Counsel for the respondents has supported the orders passed by the Courts below.
4. I have considered the respective contentions of the learned Counsel for the parties in the light of the record.
5. So far as, first objection of the learned Counsel for the appellant is concerned no doubt, it is correct that rejection of the plaint under Order 7 Rule 11 of Civil Procedure Code could have been seeked through amendment of the written statement, but there was no bar under the provisions of Civil Procedure Code for invoking the powers of the Court under this provision of law through a miscellaneous application. The leamed Sub Judge Dirkot, therefore, as committed no error in law, which could justify the interference of this Court in exercise of its Appellate jurisdiction.
6. The second objection is also without substance. An application was submitted on behalf of the plaintiff-appellant during the pendency of the case before the trial Court on 6th January, 1993, seeking amendment in the plaint on the ground that section 14 of the Right of Prior Purchase Act, 1993 (hereinafter to be referred as Act) has been amended and he being Shaft-ul-Khalil and Shaft- ul-Jar) has been entitled to claim, decree of Prior Purchase on these two grounds.
7. On this application objections were invited which were accordingly filed by the vendee. The vendee rebutted the claim of the plaintiff-appellant by claiming himself to be the co-sharer in the land with vendor, besides having common boundaries with him. He prayed for the rejection of the application on the ground that the same has been moved beyond the period allowed for exercising the right of pre-emption. This application was rejected by the trial Court on the ground that it w as brought beyond the period of limitation. It was further observed by the trial Court that new grounds cannot be allowed to be incorporated through amendment in the plaint as these were inconsistent to the original stand, taken in the plaint.
8. The amendment in the Right of Prior Purchase Act, 1993, was made and given effect from 13th March, 1993. Under the amended Act, "Subject to the provisions of section 13, the following were held entitled to have the Right of Prior Purchase in respect of agricultural land and village immovable property:-
(a) Firstly in Shafi-Sharik;
(b) Secondly in Shaft-Kali, and
(c) thirdly in Shaft Jar.
9. It is settled proposition of law that in pre-emption cases the Court has to decline the prayer for amendment, if fresh suit on the amended ground would be barred by limitation on the date when application for amendment was moved. It is so. Because the vendee cannot be deprived from a legal right which has accrued was executed on 5th June, 1989. The suit for pre-emption was filed by the present appellant on 12th May. 1990. The application for amendment, claiming Superior Right on the ground of Shafi-ul-Klialit and Shafi-ul-Jar was moved much beyond the prescribed period of limitation on 6th June, 1993. The trial Court, therefore, was justified in refusing the prayer for amendment.
10. Both the Courts below, in my view, have committed no error in law while dismiss in the suit under Order 7 rule 11 of Civil Procedure Code, because during the pendency of the suit the vendee had improved his status, as he had become co- sharer with vendor on account of Registered Gift-deed, executed by his father in his favour on 23rd May, 1993, on the basis of which. Mutation No. 1362 was attested in his favour on 24th May. 1993.
11. In view of above, there is no force in the appeal. The same, therefore, stands dismissed with costs.