' The petitioner purchased the suit land from one Saleem Akhtar vide registered sale-deed, dated 3-1-1981. The respondents claiming to be the collaterals of the vendor and co-sharers in the suit land filed a suit for possession of the suit land by pre-emption. In his written statement filed on 28- 7-1981, the petitioner resisted the suit, inter alia, on the ground that at the time of sale the suit land was comprised in his tenancy. It may be added here that the said ground was taken in the written statement after seeking permission of the Court under Order 6, Rule 17, C.P.C. In support of the said plea, the petitioner relied on Khasra Girdawari (Exh. D.2). The same document was produced by the respondents as Exh. P.S. Issues were framed. The learned trial Court proceeded to reject the said plea of the petitioner and to decree the suit of the respondents relying on document Exh. P.7. Which according to the learned trial Court, was a previous statement made by the petitioner. The suit was so decreed vide judgment and decree, dated 4-2-1985. The petitioner filed an appeal, which was heard by the learned District Judge, Gujranwala, who dismissed the same on 6-5-1985.
2. Ch. Muhammad Anwar Bhindar, learned counsel for the petitioner submits that reliance by both the learned Courts below on Exh. P.7 is contrary to law and that the learned Courts below have thus, resorted to misreading of evidence on record. Mr. S.M. Rashid, learned counsel for the respondents, on the other hand, tried to support the impugned judgments and decrees.
3. I have gone through the certified copies of the records appended with the civil revision with the assistance of the learned counsel for the parties. I find that the sale took place on 3-1-1981. The document produced by both the parties as Exh. P.5 and Exh. D.2, is copy of register Khasra Girdawari for Kharif 1980 to Rabi 1981. The petitioner is recorded as tenant therein paying rent to the landlord/owner. I have perused the copy of document Exh. P.7. This has come from the record of an A.D.C.(C). It is not discernible from the record as to what was the nature of the proceedings wherefrom the copy Exh. P.7 has been produced. I find that this document has been misread by the learned Courts below. On the first page of the document there are the statements of Kafayat Ullah and Muhammad Younas and on second page an incomplete statement is there which appears to bear the signatures as (Mian Muhammad Tufail). According to the last lines it appears that the said Mian Muhammad Tufail stated that he had been cultivating the area purchased by him since one year before its sale in his favour and that he was himself cultivating the same and not through a tenant. These lines are followed by another two lines, which give the impression that the statement is to the effect that before January 1981 Saleem Ahmad used to cultivate and thereafter, Muhammad Tufail is in possession.
4. Be that as it may, I find that the petitioner entered the witness-box as D.W.1 on 12-9-1984. In his examination-in-chief, he categorically stated that at the time of sale, he was a tenant on the said land and copy of Khasra Girdawari (Exh.D.2) was produced by him in the course of said examination. He was subjected to cross-examination, but was not at all confronted with the said alleged previous statement i,e, Exh. P.7. The law as to the admissibility or otherwise of a previous statement is clearly laid down in Article 140 of Qanun-e-Shahadat Order, 1984 (formerly section 145, Evidence Act, 1872). This provision of law came up for interpretation before the Supreme Court of Pakistan in the case of Sikandar Hayat and 4 others v. Master Fazal Karim (PLD 1971 SC 730). The following passage from the case of Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Rama and others (AIR 1946 Lahore 65) was quoted by their lordship with approval at page 735 of the report:- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."
' The said view was reiterated by the Supreme Court in the cases of Syed Qamar Ahmad and another v. Anjum Zafar and others (1994 SCM R 65) and Atta Muhammad and others v. Matloob Alam Khan (1996 SCM R 601). In view of the above legal position, the learned counsel for the petitioner has very rightly contended that the learned Courts below have relied upon a document, which could not be used at all in the course of the present proceedings for the reason that while the petitioner was in the witness-box his attention was not drawn to the said alleged previous statement (Exh. P.7). allowed, the judgments and decrees of both the learned Courts below are set aside and the suit of the respondents is dismissed without any order as to costs.
5. So far as another reason given by the learned District Judge for rejecting the said plea of the petitioner in defence to the respondents' suit that he took up the plea by way of amendment is concerned this hardly constitutes a ground for knocking out the petitioner. Order 6, Rule 17, C.P.C.
Authorises a Court to order such amendments as are necessary for the decision of the controversy.
Needless to state here that the consistent view of the superior judiciary in the country is that the powers under Order 6, Rule 17, C.P.C. Are to be liberally exercised. It is also well-settled proposition that amendment in the pleadings relates back to the original date of presentation of the same.
Reference be made to Topan Dass and another v. Tharia Ram and others (AIR 1934 Lahore 412) and Muhammad Iqbal v. Mirza Begum and 2 others (1992 M LD 1257). Besides no prejudice has been caused to the respondents, the plea was incorporated into an issue and both the parties were given chance to prove and to disprove the same.
6. I have already stated above, the plea that petitioner was a tenant in the suit land at the time of sale, stands established from document Exh. D.2/P.5. The document Exh.P.7 could not be relied upon by the learned Courts below in view of the clear provisions of Article 140 of Qanun-eShahadat Order, 1984, as interpreted by the apex Court in the judgment referred to above. In this view of the matter, the petitioner had a superior right of pre-emption as against the respondents and their suit could not have been decreed.
7. This civil revision is accordingly allowed, the judgments and decrees of both the learned Courts below are set aside and the suit of the respondent is dismissed without any order as to costs.