This regular second appeal is directed against the judgment and decree, dated 10-1-1978 passed by the learned District Judge, Rahimyar Khan whereby he accepted the appeal of the respondent and set aside the judgment and decree of the learned trial Court dated 18-6-1977 by which the pre-emption suit of the respondent No. l was decreed against the appellant.
2. Brief facts necessary for the. Disposal of the instant second appeal are that Muhammad Aslam/plaintiff (now the respondent No. l) instituted a suit for possession of suit land (detailed in the plaint) against the defendants (now the present appellant and respondents 2 and 3). It is asserted in the plaint that a suit for specific performance of contract of sale of the suit land was decreed in favour of the present appellant and other defendant namely Jan Muhammad-now respondent No.2, on 16-7-1973. Transfer of the suit land by means of this decree was pre-empted by the plaintiff/respondent No. l by exercising his right of pre-emption being a son of the vendor.
The' suit was contested by the present appellant who had submitted a contesting written statement whereas the other defendant submitted a consenting written statement and not only they acknowledged his right of pre-emption but also the sale price. Keeping in view the pleadings of the parties, the learned trial Court framed the following issues:--
(1) Whether the plaintiff has got no cause of action? OPD
(2) Whether the suit is time-barred? OPD
(3) Whether the suit property has been properly described? OPP
(4) Whether the plaintiff has waived his right of pre-emption? OPD
(5) Whether the suit has been instituted for the benefit of some other persons? If so, with what effect? OPD
(6) Whether the suit has been improperly valued for the purposes of court-fee and jurisdiction? If so, what is the correct valuation? OPD
(7) Whether the sum of Rs.3,800 was paid or fixed in good faith? OPD
(8) If Issue No.7 is not proved, what was the market value of the suit property at the time of sale?
(9) Whether the plaintiff has got a superior right of pre-emption? OPP
(10) Relief.
3. The learned trial Court vide its judgment and decree, dated 18-6-1977 dismissed the suit but the learned District Judge, Rahimyar Khan set aside the same by accepting the appeal of respondent No. l vide his judgment and decree, dated 10-1-1978, thus, the suit of respondent No. l was decreed. . .
4. Through the instant second appeal filed under section 100, C. P. C., the appellant has challenged the aforesaid judgment and decree of the learned District Judge.
5. Learned counsel for the petitioner has confined his arguments to Issues Nos.3 and 4. With regard to Issue No.4 his attention was invited to the findings of the learned trial Court mentioned in its judgment, dated 18-6-1978, which is reproduced as under:-- "This issue fails for lack of evidence nor it was stressed by the learned counsel for the defendant.
This issue is decided, against the defendant." .
Learned counsel was also asked as to how he can challenge is finding at this stage of second appeal particularly when no cross-objection had been filed before the learned District Judge who had decided the appeal of respondent No.1. Learned counsel contended that he was well within his right-to challenge this finding as the learned trial Court decided this issue mainly on the ground of lack of evidence. To me, this finding of the learned trial Court cannot be agitated in this appeal as, this issue was decided against respondent No.1 also on the ground that the same was not pressed by his learned counsel before the learned trial Court and admittedly no cross---objection with regard to this finding on this issue was ever filed before the learned District Judge. ,
6. With regard to the finding of Issue No.3 relating to description of suit property, learned counsel argues that the subject-matter of the land of the decree, dated 16-7-1973 (Exh.P.4) was having description as Killa No.8-343/6 but the present suit filed by respondent No.1 was in respect of Killa No.8-A and a specific stand was taken by the appellant in his written statement, therefore, Issue No.3 was framed which was rightly decided in favour of the appellant and against respondent No.1 and on the basis of this finding, the suit of respondent No.1 was validly dismissed but the learned District Judge, suo motu allowed the amendment in the plaint and without giving an opportunity to the appellant to contest the same, decreed the suit of respondent No.1 on wrong premises of law and facts. In this view of the matter the judgment and decree of the learned District Judge cannot be validly maintained. . Mod 7. On the other hand learned counsel for respondent No.1 plaintiff/pre- -emptor vehemently supported the impugned judgment and decree of the learned District Judge by submitting that the same had been passed strictly in accordance with law and facts of the case and no illegality or irregularity was committed by the learned District Judge.
8. I have given due consideration to the arguments of the learned counsel for the parties and perused the record.
9. The precise question for determination in this second appeal is as to whether the learned District Judge was competent to exercise powers under Order 6, Rule 17, suo motu without there being an application or request in this regard on behalf of respondent No.1. And also in case of permission of amendment in the plaint to respondent No. 1, whether the suit of the respondent No.1 could have been decreed straightaway without giving an opportunity to the appellant/vendee to contest the same.
10. As per Rule 17 of Order 6, C.P.C. Amendment tray be allowed in the pleadings at any stage and the same can be amended only with the leave of the Court, but ordinarily, the Court cannot suo motu, direct amendment. A This view is supported by the following judgment. Irfan Iqbal and 2 others v. Ch. Muhammad Hanif and 4 others PLD 1985 Lah. 523; PLD 1978 Lah. 679 and 1996 M LD 1959. The beneficial portion in this context is reproduced from one of the judgments i.e. PLD 1985 Lah. 523.
"A Court has no power suo motu to direct the plaintiffs to amend the plaint. The best course if the Court was desirous of doing substantial justice between the parties was that the attention of the plaintiff should have been drawn to the defect in the pleadings so that the same could be remedied and on such a suggestion a patty might apply for amendment of pleadings. Neither any oral request nor a written application could be granted in anticipation as the request as and when made was to be dealt with and disposed of on its own merits after hearing the opposite party."
11.Exh.P.4 copy of decree, dated 16-7-1973 shows the description of the suit land "as Mustateel No.343/6, Killa No.8/6.0 Kanal". But in the head note of the plaint, the description of suit land is shown as Mustateel No.343/6, Killa No.8-A, 6 Kanal". I have also noticed that in para. 3 of replication filed by respondent No. l Ractangle No.345/6 instead of 343/6 was mentioned. No doubt here Killa No. 8 was also mentioned.
12. Respondent No. l was made aware of the above decision and flaw in his plaint as a specific issue with regard to description of the suit land was framed but he had not even moved an application either to the learned trial Court or to the learned Lower Appellate Court, seeking suitable amendment in this respect. Though it is quite pinching to remand the case after such a long period but the law has to take its own course. I am constrained to hold that the learned District Judge has proceeded on wrong premises of law and facts while reversing the finding of learned trial Court on Issue No.3 by allowing suo motu amendment to respondent No. l in- his plaint.
13. For what has been stated above the instant petition is allowed and the judgment and decree of the learned District Judge are hereby set aside. However, instead of remitting the case to the learned trial Court, it shall be appropriate that this case be remanded to the learned District Judge, Rahimyar Khan who may exercise the powers under section 107, C.P.C. After entertaining an application of respondent No.1 under Order' 6, Rule 1'7, C.P.C. And decide the same as well as the main appeal on merits strictly in accordance with law within three months from the date of appearance of the parties before him. There shall be no order as to costs.