DEEDAR HUSSAIN SHAH, J.- This appeal by leave of the Court is directed against the judgment, dated 7.11.1994 of-the Lahore High Court, passed in Civil Revision No, 152-D/1975 filed by Sullah, respondent No.1, whereby the judgment rendered by the learned Additional District Judge. Multan, setting aside the judgment and decree dated, 14.6,1972 of the Trial Court in pre-emption matter, was upheld;
2. The facts, in brief, are that respondent No. 1 filed a suit for pre- emption on 23.1.1971 in respect of a sale transaction covered by a registered sale-deed dated 3.1.1970. In the body of the plaint, the following note, was added at the end:- "That description of the suit land shall he corrected after receipt of the copy of the registered sale- deed. The detail given in the plaint is based on presumption as copy of the sale-deed has hot been received."
The suit was contested by the petitioners. While the aforesaid suit was pending, on 3.2.1971, respondent No.1 filed an application tinder Order VII, Rule,. 17, CPC for amendment of the plaint sf> as to incorporate description of the suit property in terms of the sale-deed, but the same was dismissed on 14.4.19,71. Against the said dismissal order, he filed a revision in the High Court, but it also failed and was dismissed in limine. On 18.5.1971 a second application for amendment was tiled, which was rejected on 30.7.1971. However, upon a review application dated 18.4,1972. The amendment was allowed by the Trial Court on 14.6.1972 and on the same, date the suit was decreed as the evidence of-the parties, by then, had already been completed. The learned Trial Court on Issue No. 2 concluded that the suit was not defective, on account of alleged partial preemption. Against the above judgment/decree, the petitioner filed an appeal, which was accepted by the learned Additional District Judge, Multan, by judgment/decree dated 6.1.1975 and the finding on Issue No. 2 was reversed Thereafter respondent No. 1 filed a civil revision in the High Court, which was allowed vide the impugned judgment.
3. Leave to appeal was granted to consider the question whether the learned Judge in Chambers was justified in reversing the finding of the appellate Court on Issue No. 2 and decreeing the suit of respondent No. 1 keeping in view the description of the property given in the original plaint and the factum that to applications for amendment was allowed.
4. Learned Counsel appearing on behalf of the appellants, inter alia, contended that the impugned judgment is not justified inasmuch as the same is based on clear misreading of the record as well as wrong presumption: that the learned Judge in Chambers has wrongly and illegally accepted the revision of the respondent; filed the learned Trial Court had no powers under the law to review, recall and set aside the order dated 14.4 1971 which had already been merged in the orders dated 29.4.1971 and 18.5.1971 passed by the. High Court in Civil Revisions No. 371/71. And 423/71, respectively and as such the judgment and decree passed by the Trial Court was without jurisdiction and of no legal effect; and that the learned Trial Judge did not apply his independent judicial mind to the limitation aspect of the suit as in a pre-emption case one year is the limitation for filing it against the sale, but in the present case the suit admittedly was tiled alter one year; that the amendment applications were rejected by the Trial Court on 14.4.1971 and 30.7.1971. Whereas the review application was also barred by limitation, under these circumstances, the Trial Court had no jurisdiction/power to extend the limitation period of pre-emption suit, nor had any authority to sit over the orders of the Lahore High Court dated 18.5.1971 and 30.7.1971 in review.
Learned counsel for the appellants further pointed out that written statement in the suit was tiled on 7.5.1971 and an objection was raised with regard to the partial pre-emption, and keeping in view that objection issue No. 2 was framed. After 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 to be sought and allowed which may be accidental or same may have arisen during trial, so that a complete justice can be done by the Court Whereas in the case in had, after filing of the objections/written statements, the amendment applications were rejected twice by the Trial Court and the High Court also dismissed the to revisions, the first Appellate Court rightly allowed the appeal and dismissed the suit Of the respondent/plaintiff. Learned-counsel tor the appellants has relied on Shankar v. Krishna (AIR 1970 S.C. 1), Ghulam Nabi v. Nazir Ahmad (1985 SGMR 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, 1 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 14.4.197.1: 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.v. Kaptan Yusuf Kalkavan (1993 SGMR 593). Mian, Akluar Islam v. Ch. Zulfiqar Ali and another (PLD 1965 (W.P.) Lahore 394) Naeemur Rehman v. Muhammad Anwar (1986 SGMR 1488) and Ahsan Kousar v. Ahmad Zaman Khan (1986 SGMR 1789).
6. From the facts narrated herein above it transpired that written statement on behalf of the appellants was filed 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 after 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 khasra numbers whereas their amendment applications were also dismissed by the learned High Court. Under Article 173 of the Limitation Act. The period prescribed for 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 that for safe 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 tiled 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 tiled, for which learned counsel for the respondents admitted, that the Trial Court had reviewed its order and allowed the amendment, hut 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 to 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 by the learned counsel tor 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-emptor 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. The 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 ta the respondent for defeating the pre-emption Claim of the predecessor-in-interest of the appellants and was not utilised and invoked cannot now be 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 it cannot he made the basis of decision:" in Abdul Majid v. 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 to 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.