1. ' BASHARAT AHMAD SHAIKH, J.-- The High Court has found no justification for interference in the concurrent judgments of the Courts below and has dismissed the suit filed by the present appellants Anwar Hussain and others. The appellants were granted leave to appeal to challenge the judgment of the High Court mainly due to the reason advanced on behalf of the appellants that an application for amendment of the plaint, which has been filed by the appellants before the High Court, was not disposed of. Their contention was that the amendment application qualified for acceptance 'and if it had been accepted the result would have been different.
2. ' The suit was initially filed by four persons Muzafar Hussain, Anwar Hussain, Manawar Hussain and Abdul Zahoor sons of Abdul Hakeem but Muzafar Hussain subsequently withdrew from the prosecution of the case. The plaintiffs are sons of Mst. Sumandar Jan while the defendant Manzoor Ahmad is the grandson of Mst. Sumandar Jan. The suit, tiled on 26th February 1987, was a suit for declaration and perpetual injunction for cancellation of sale-deed, dated 16th March, 1986 in respect of the suit land. It was stated in the plaint that the suit land was jointly owned by the plaintiffs and the defendants. It was stated in the plaint that Mst. Sumandar Jan, now deceased, was over 100 years of age and was also infirm. Defendant Manzoor Ahmad, her grandson, took her to Muzaffarabad for her treatment but employing deceitful means got a sale-deed executed in his own favour which was to the effect that Mst. Sumandar Jan had sold her total share in the suit land for a consideration of Rupees twelve thousand. It was averred that the suit land originally belonged to Abdul Hakeem who was father of the plaintiffs, husband of Mst. Sumandar Jan and paternal- grandfather of defendant Manzoor Ahmad. It was averred that the land had already been partitioned by way, of Tinily arrangement in lifetime of Abdul Hakeem and that Mst. Sumandar Jan had also given away her share in the land to other heirs at the time of private partition. The sale- deed was described as one based on fraud, without possession and without consideration. It was alternatively stated that the plaintiffs were real sons of vendor Mst. Sumandar Jan while defendant Manzoor Ahmad was a grandson, therefore, the plaintiffs had a prior right of purchase.
3. ' The suit was dismissed on 23rd October, 1993. The learned Sub-Judge held that Mst. Sumandar Jan inherited 1/8th share of the estate of Abdul Hakeem and she had the legal right to sell her share to anyone. It was held that the plaintiffs had failed to prove any defect in the factum of sale.
4. So far as the alternative plea of pre-emption is concerned the learned Sub-Judge dismissed this plea on the ground that in Islam kinship is not a recognised ground for pre-emption. It may be pointed out here that the learned Sub-Judge misapplied law on this subject but section 14 of the Right of Prior Purchase Act was substituted on 13th March, 1993 so as to bring it in conformity with Injunctions of Islam. The learned Sub-Judge decided the suit on 23rd October, 1993 and applied the amended provision to the suit filed on 26th January, 1987 presumably under wrong impression that the amended provision would apply to pending cases. As is well-settled, it was not so.
5. ' The plaintiffs filed appeal before the learned Additional District Judge. It is stated in the judgment of the learned Additional District Judge that the appeal was only pressed to the extent of enforcement of right of prior purchase. The learned Additional District Judge held that it was beyond doubt that appellants Anwar Hussain and others decidedly had right of prior purchase but a decree could not be passed in their favour due to the reason that they had omitted to include in the plaint a house which formed part of the sale-deed and, thus, suit suffered from fatal defect of partial pie-emption. It was pointed out that there was a specific issue about partial pre-emption which had been decided by the trial Court against the plaintiffs. The view on this point expressed by the trial Court was upheld by the learned Additional District Judge.
6. ' The plaintiffs filed second appeal before the High Court. They also moved an application for amendment. They wanted to add the following new para. In their plaint by was of amendment:-- "9-A. That even if the plaintiffs fail to establish any right in light of the contents of the plaint even then it is an admitted position that plaintiffs are real sons of vendor Mst. Sumandar Jan whereas defendant No,1 Manzoor Ahmad is her grandson. Thus, the plaintiffs have a prior right of purchase as compared to defendant No,1. The plaintiffs are entitled to a decree of prior purchase. Therefore, land mentioned in the sale-deed on 16th March, 1986 alongwith rights of Shamlat Deh, house, grazing rights, Khalsa, Notor, rights of irrigation from 'Koohl', trees and path ways may be passed in favour of the plaintiffs. [Translated]."
7. ' The corresponding amendment was also sought in the prayer clause. It seems necessary to point out that plea of preemption was already there in the plaints, the only new thing was the house.
8. ' Arguing the case in this Court K.H. Muhammad Aslam Habib, the learned counsel for the appellants, submitted that the High Court proceeded to decide the case without deciding the amendment application which has rendered the decision of the High Court as contrary to law. He pleaded that this Court may allow the proposed amendment.
9. ' A perusal of the judgment of the High Court shows that it is not correct to say that amendment application was not disposed of by the High Court to find out the true facts. We may first reproduce the interim order passed by the High Court on 17th April, 1998 and 19th May, 1998:-- "17-4-1998. Appellant has filed an application for amendment. Copy of the application has been provided to the opposite-party who will file objections and will argue the matter on 19th May, 1998.
10. 19-5-1998. Case as a whole should be argued tomorrow. Amendment application can be considered as further and better particulars during the arguments because contents of the application are already present in the plaint. Only the same are not so clear as in the amendment application."
11. ' In the judgment under appeal the learned Judge, while dealing with the amendment application observed as follows:-- "So far as the reliance of the learned counsel for the appellant on the precedent cases of the superior Courts is concerned, the principles laid down therein are not applicable to facts of the present case. In particular Muhammad Iqbal v. Mirror Begum 1992 M LD 1257, 1992 SCR 183 is distinguishable. In Muhammad Iqbal's case the Shamlat land was omitted from the plaint due to which Courts below held that it was a case of partial pre-emption but the Supreme Court did not accept it as partial pre-emption and allowed amendment to include Shamlat Deh in the plaint. The present case is not one relating to omission to mention Shamlat Deh but the matter pertains to omission to mention a house which carries a separate entity. No application has been moved to amend the plaint in order to include the house in the plaint... "[Translated].
12. ' A perusal of the amendment application moved by the appellants shows that the learned Judge did not correctly read the application for amendment. The application, which is at pages 26 and 27 of the High Court file has already been partly reproduced. There is specific mention of a house in the new paragraph which the appellants wanted to be incorporated in the plaint. Thus, the observation that no application had been moved to include the house is not correct.
13. The law is clear on the point that amendment can be allowed at any stage. Reported cases are available in which amendment was allowed even in the Supreme Court. Muhammad Iqbal's case cited before the High Court is authority on this point. In that case. Sahmlat Deh was allowed to be added. It was vehemently argued by the learned counsel for the appellants that a house built on the suit land could similarly be allowed to be added by way of amendment. It was submitted that since the High Court has wrongly dismissed the amendment application, this Court may allow it.
14. ' We have seen the sale-deed. It is clear from its contents that the house under reference stands constructed in the land which was sold by Mst. Sumandar Jan. In this way we do not agree with the learned Judge in the High Court that the said house cannot be allowed to be included in the plaint by way of amendment. We are of the view that judgment of this Court in Muhammad Iqbal's case is fully applicable to the present case. Fact of the matter is that in the present suit the appellants pre-empted the whole bargain and were willing to price said to have been paid to Mst. Sumandar Jan. So, it can be safely said that the omission to separately mention the house was accidental and no part of the property was intentionally omitted from claim set up in the suit. It is also clear that the suit itself was brought in order to pre-empt the sale as a whole because copy of the registered sale-deed had been filed with the plaint. On this point we may first reproduce the following portion of the judgment in Muhammad Iqbal's case mentioned above:-- "As a result of this discussion I have formed the conclusion that where omission is not intentional addition of Shamlat land can be allowed even after prescribed period of limitation, and that an application for amendment cannot be rejected on the ground of limitation. I would also hold that negligence or carelessness is not a ground on which a prayer for amendment may be refused.
15. However, I may add, as a measure of abundant caution that a Court is not bound to accept a mala fide amendment application as was held in Jan Muhammad v. Muhammad Munsif PLD 1986 SC (AJ&K) 98.
16. ' So far as the facts of the present case are concerned, Mirza Begum instituted her suit to pre-empt the sale effected through the sale-deed, dated 27-12-1987, copy of which was attached with the plaint. She duly offered to pay the amount of Rs,1 lac which was the price paid for the total land sold through the sale-deed which included the share of Shamlat. It is, therefore, clear from these facts that the share of Shamlat was omitted from the body of the plaint merely due to inadvertence. In these circumstances the learned Sub-Judge rightly allowed the plaintiff to amend the plaint to rectify the mistake."
17. ' On parity of reasoning the house which forms part of the sale-deed executed by Mst. Sumandar Jan was omitted from the body of the plaint due to inadvertence and amendment should have been allowed.
18. ' In Wazir Muhammad v. Abdul Aziz 1982 SCM R 189 the plaintiff did not mention in his plaint five Khasra numbers out of the land which was sought to be pre-empted but the total area of the property to be pre-empted and the particulars of the sale were correct. This omission was treated to be a case of partial pre-emption and the relief was refused in spite of the fact that the plaintiff was found to have superior right of purchase. However the Supreme Court of Pakistan held that since the sale mutation which was sought to be preempted identified the extent of the property to be pre-empted and correctly mentioned the mutation number and price, therefore, omission of some Khasra numbers was clerical and inconsequential.
19. ' In Ghulam Nabi v. Sardar Nazir Ahmed 1985 SCM R 824. In a pre-emption suit one Khasra number was omitted from the claim of pre-emption and it was contended on behalf of the defendant that the suit was bad for partial pre-emption. This objection was raised and an issue was also framed in respect of this objection, but when arguments had been heard and the case had been fixed for judgment an application was moved by the plaintiff for amendment of the plaint to correct the description and bring it in accord with the description of the subject-matter in the sale-deed. The trial Court rejected the application on the ground of delay and carelessness and dismissed the suit on the same ground, namely, that the suit suffered from defect of partial pre-emption. The Lahore High Court subsequently ordered that the suit be decreed after accepting the prayer for amendment of the plaint. The Supreme Court dismissed an appeal filed by the defendants and rejected the arguments that:-
(a) the conduct of the plaintiff was patently negligent;
(b) the defendant had been put on notice about the defects in the plaint at the time of filing the written statement, yet he neglected to apply for amendment.
20. ' The Court held that from the very nature of the error in the description of the property it was clear that this omission was accidental and no part of the property was intentionally omitted from claim set up in the suit. It was also clear that the suit itself was brought in order to pre-empt the sale as a whole because copy of the registered sale-deed and the mutation pertaining to it had been filed in the Court. It was concluded that omission was accidental. Dealing with the argume Opt a valuable right had accrued to the other 'party the Court held that:-- "We are unable to agree with the contention that any right had accrued in favour of the appellant on account of the errors which could not be away by means of the amendment of plaint."
21. ' On the question of limitation, it was observed as follows:- "Similar there is no question of the bar of limitation in the circumstances of this case as the suit having been brought within time qua the sale in the suit, mere supplying of omission in the description of the property does not attract the objection on the ground of limitation."
22. ' Law is now firmly settled that amendment application can be allowed at any time and amendment can even be granted by the Supreme Court. In case titled L.J. Leach & Co. v. Messrs Jardine Skinner & Co. AIR 1957 SC 357, the plaintiffs in the case filed a suit in the Bombay High Court for damages for conversion. The suit was decreed by a Single Bench of the Court but his judgment was reversed on an intra-Court appeal by a Division Bench. The judgment of the Division Bench was challenged before the Supreme Court of India. The learned Judges agreed with the findings of the Division Bench that on the pleadings and on the evidence in the suit that the claim for damages on the footing of conversion must fail. But in the meanwhile the plaintiff applied tQ the Supreme Court for amendment of the plaint by raising in alternative, a claim for damages for breach of contract for nondelivery of the goods. The application was resisted by the defendants (respondents in the Supreme Court) on the grounds that amendment introduced a new cause of action, that a suit on that cause of action would now be barred by limitation, that the plaintiffs had ample opportunity to amend their plaint but they failed to do so, and that owing to laps of time the defendants would be seriously prejudiced if this new claim was allowed to be raised. The application for amendment was accepted by the Supreme Court by holding that:-- "The plaintiffs do not claim any damages for wrongful termination of the agreement, Exh.A by the notice,' dated 13-6-1945. What they claim is only damages for non-delivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice. Clause 14 of the agreement expressly reserves that right to the plaintiffs. The suit being founded on Exh.A. A claim based on clause 14 thereof cannot be said to be foreign to the scope of the suit. Schedule E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods, and the damages claimed are also stated therein. The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by defendants in not delivering the goods."
23. ' After allowing the amendment their appeal was allowed, the decree under appeal was set aside and the suit was remanded for rehearing to the trial Court.
24. Therefore, we have reached the conclusion that the amendment application was wrongly refused by the High Court as it fully qualified for acceptance in view of the clear law and authoritative judgments on this point. We, therefore, allow the amendment, and it is ordered that paragraph 9-A as contained in the amendment application shall be inserted in the plaint.
25. ' The question now is as to what course should be adopted for deciding the case on merits. One way is that we remand the case but we are of the opinion that if we do so it will prolong the matter unnecessarily. The sale-deed was executed on 16th March, 1986 and the suit was filed on 28th February, 1987 which means that this cause has been pending in the Courts for the last twelve years. In this view of the matter we would like to decide the merits of the case ourselves. In our considered view this is necessary in order to do complete justice between the parties.
26. ' Accordingly, it is ordered that the plaintiffs will amend the suit in accordance with their application and file their amended plaint on or before 4th June, 1999 before the Registrar. The respondents may then file their amended written statements on or before 21st June also before the Registrar.
27. The case will be then fixed for arguments. Amendment allowed.