SAIYED SAEED ASHHAD, C.J.- This First Appeal has -been filed against the judgment and decree of the IInd Senior Civil Judge, Karachi (East) dated 30.8.1997 and 4.9.1997 respectively in Suit No. 120 of 1993, whereby the suit tiled by respondents Nos. 1, 2 and 3 was decreed against the appellants/defendant No. 2 and respondent No. 4/defendant No. 1.
The brief facts, which led to the tiling of this lst Appeal, are that respondents Nos. 1. 2 and 3/plaintiffs Nos. 1, 2 and 3 tried a suit in the Court of IInd Senior Civil Judge, Karachi (East) against the appellants and respondent No. 4 for recovery of Rs.4,31,882 jointly and severally from them. The facts stated in the plaint are that deceased Shaikh Shafiuddin, husband of respondent No. 1 was an employed of M/s. Pakistan International Airlines Corporation (hereinafter referred to as M/s. PIAC) and during the course of his service, died on 31.7.1992. He was survived by the respondents-Nos. 1, 2 and 3/plaintiffs and defendant No. 1 as his heirs/next of kins. At the time of his death, deceased Shaikh Shafiuddin was entitled to receive a sum of Rs.5,18,258. The break up of which is as under:- That upon the death of late Shafiuddin, the plaintiffs and defendant No. 1 were entitled to receive the following benefits from the defendant No. 2.
(i) Death claim Rs. 1,89,000 ((TABLE))
(ii) Final Settlement of Provident Fund Rs. 27,576
(iii) Salary etc. Rs.182
(iv) Refund Income Tax Rs.15
(v) Voluntry Insurance Rs. 1,50,000
(vi) Group insurance Rs. 1.50.000 Rs.5,18,258 Out of this amount of Rs.5,18,258, respondent No. 1 was entitled to inherit a sunt of Rs.86,376, whereas remaining of Rs.4,31,882 was to be inherited by respondents Nos. 1, 2 and 3/plaintiffs in their No. 2 was framed. Alter conclusion of the evidence the third application for amendment of the plaint-was filed on 18.4.1972. If an order is passed by the Civil Court which is subsequently challenged before the High Court and after decision of the High Court neither the Trial Court nor the first Appellate Court could grant relief. A plea of partial pre-emption has been taken, and issue framed cannot be looked into through a subsequent amendment in the plaint notwithstanding reservation in the plaint to correct the description of the property. Once an issue is framed adjudication is to be made. Could the amendment, which can change nature of the suit, be allowed; that the Trial Court had no jurisdiction, as it, in the garb of review proceedings, allowed the application without considering the limitation provided under Article 173 of the Limitation Act. In the eye of law amendment is jo he sought and allowed which may he accidental or same may have arisen during trial, so that a complete justice can be done by the Court Whereas in the case in hand, after filing of the objections/written statements, the amendment applications were rejected twice by the Trial Court and the High Court also dismissed the two revisions, the first Appellate Court rightly allowed the appeal and dismissed the suit of the respondent/plaintiff. Learned counsel for the appellants has relied on Shankar v. Krishna (AIR 1970 S.C. 1), Ghulam Nabi v. Nazir Ahmad (1985 SCMK 824, at page 826), Amir Abdullah Khan v. - Muhammad Attaullah Khan (PLD 1990 SC 972, at page 979), Abdul Majid v. Abdul Ghafoor (PLJ 1982 S.C. 286) and Abdul Kareem v.
Karam Hussain (PLJ 1986 Lahore 484).
5. Mr. Saeedur Rehman Farrukh, learned counsel for the respondents very candidly admitted that first Revision Petition No. 371/71 was dismissed on 29.4.1971, second Revision Petition No. 423/71 was rejected by the Lahore High Court on 18.5.1971, and that both the revisions were not disposed of on merits. I was argued that liberal view may be taken and for just and proper decision of the case amendment may be allowed, therefore, the Trial Court had correctly allowed the amendment by reviewing its earlier order dated 14.4.1971: that the learned High Court has rightly upheld the judgment of the Trial Court which does not call for any interference at this stage. He has referred to Semen Salvage Pte Ltd. v. M. Kapton Yusuf Kalkavan (1993 SCM R 593), Mian, Akhtar Islam, v. Ch. Zulfiqar Ali and another (PLD 1965 (W.P.) Lahore 394) Naeemur Rehman v. Muhammad Anwar (1986 SCM R 1488) and Ahsan Kausar v. Ahmad Zaman Khan (1986 SCMR 1789).
6. From the facts narrated herein above it transpired that written statement on behalf of the appellants was tiled on 7.5.1971 and objection was raised with regard to the partial pre-emption which is at page 61 of the paper book. Two amendment applications were rejected by the Trial Court. The matter went up to the High Court, but in vain. No doubt, the first revision was not dismissed on merits, but while withdrawing the application permission was not sought for from the High Court to file the same on same cogent and plausible reasons. The second revision petition was dismissed as not maintainable.
7. Admittedly evidence in the case was recorded on 30.7.1971 and the side of-the plaintiff was closed through statement of-the learned counsel appearing on his behalf, which is at page 84 of the paper book. The third amendment application was filed when the case was ripe for decision on merits The Trial Court did not consider this aspect of the case that alter institution of the suit, in the first available opportunity the appellants took the objection of partial pre-emption as early as 7.5.1971, but the respondents herein made no efforts as to filing of amended plaint showing the correct kitasra numbers whereas their amendment applications were also dismissed by the learned High Court. Under Article 173 of the Limitation Act. The period prescribed tor review of the order by Trial Court is 90 days except in the cases provided for by Article 161 and Article 162. Two amendment applications moved by the respondents were dismissed but the third application filed on 18.4.1972 was allowed and the suit was decreed by the learned Trial Court vide judgment dated 14.6.1972.
8. No doubt it has been held time and again tha-t for sate administration of justice liberal view is to be taken for allowing the amendment, whereas from the above facts it is crystal clear that the respondents were not vigilant and persuasive to follow' up the suit in its proper perspective as required under the law. Admittedly, the plaint was filed in the Court on 25.1.1971 and the appellants filed objections and the written statements on 7.5.1971 claiming the partial pre-emption. The actual words are at page 61 of the paper book, which read as under:- ((Urdu Text))
9. After the evidence was recorded and the sale-deed was produced in the Court, the third amendment application was filed, for which learned counsel for the respondents admitted, that the Trial Court had reviewed its order and allowed the amendment, but minute scrutiny of the facts mentioned herein above makes it clear that the Trial Court without considering the limitation towards jurisdiction allowed the amendment. The Trial Court also did not properly consider the fact that two civil revisions tiled by the respondents were dismissed by the High Court and after rejection of the same to trial Court was not supposed to ignore the orders of the superior Court and to allow amendment by way of review.
10. In this back-ground of the matter, now we would like to dilate upon the case-law cited hy the Learned counsel for the parties. In Shankar v. Krishna, supra, it has been observed that "dismissal of revision against order, by High Court-Order merges with order made in revision". In Ghulam Nabi v.
Nazir Ahmad supra, it has been laid down:- " There is no dispute at this stage about the superior right of the respondent to pre-empt the sale in question and there can be no doubt, in the facts of this-case, that the errors of omissions and misdescriptions were accidental or clerical which had inadvertently crept into the plaint at the time of its preparation the only question emphatically pressed is that whether the respondent was disentitled to the indulgence shown to him for being allowed to amend the plaint on the ground of delay."
In Amir Abdullah Khan v. Muhammad Attaullah Khan, supra, it has been observed that:- "Another fact to be noted is that the pre-emption suit was contested by the respondent and the pre-empt or claimed a superior right of pre-emption on the ground of being both Aala Malik and Adna Malik in the estate and claimed that the vendee was an utter stranger. Die ground which the respondent is invoking now and all the Courts have upheld would imply that the pre-emption suit was bad for partial pre-emption as the entire property was, not being sought to be pre-empted though price for the entire property was being paid, under the decree. A ground which was available (a the respondent for defeating the pre-emption . Claim of the predecessor-in-interest of the appellants and was not utilised and invoked, cannot made a ground for defeating the claim of the successors-in- interest as a successful pre-emptor as against him. However, as this specific ground was not pleaded at any stage if cannot he made the basis of decision."
In Abdul Majid r. Abdul Ghafoor, supra, it was laid down that "decision of High Court to operate as bar on re-opening of case except to extent permitted by law by way of review and appeal". In Abdul Kareem v. Karam Hussain, supra, the relevant observation is that Revisional Court while examining propriety of amendment in plaint refusing to grant permission- such order, unless, set aside by superior Court, to attain finality, and that binding force of such order not to be whittled down in subsequent round of litigation by Court either lower in status or that of coordinate jurisdiction".
11. In view of the facts and narration mentioned herein above in the earlier part of this judgment that written statement was filed by the appellants on 7.5.1971 and objection was raised with regard to the partial pre-emption. Subsequently two applications for amendment were also dismissed by the Trial Court, and revisions filed by the respondents were also dismissed. The third application by way of review was allowed by the Trial Court through judgment and decree dated 14.6.1972.
Article 173 .Of the Limitation Act prescribes the period for a view of judgment is 90 days. The record shows that the review was filed at a belated stage and without any application for condonation of delay before the Trial Court.
12. The case-law referred to by the learned counsel for the appellants is relevant to the facts and circumstances of the appeal, whereas the case-law referred to by the learned counsel for the respondents, with due respect to the same, is not helpful to the case of the respondents in view of the peculiar circumstances and provision of Article 173 of the Limitation Act.
13. For the facts circumstances and reasons stated above, we allow this appeal, set aside the impugned judgment of the High Court and Sullah respondent is non-suited. There shall be no order as to costs.