JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 26-9-2001 passed by learned Single Bench of Lahore High Court (Bahawalpur Bench) whereby Regular Second Appeal bearing No,33 of 1989/BWP preferred on behalf of petitioner has been dismissed and the judgment and decree dated 20-10-1981 passed by learned Civil Judge, Rahimyar Khan and judgment and decree dated 11-7-1981 passed by learned Additional District Judge-II. Rahimyar Khan have been kept intact.
2. Precisely stated the facts of the case are that one Rais Qabil filed asuit for pre-emption regarding land in question against Muhammad Abdullah Khan Niazi (petitioner/defendant) on the ground of superior right being co-sharer in the Khata. The averments in the plaint were repudiated on various legal and factual grounds. After the death of Rais Qabil, Rais Abdul Ghafoor (predecessor-in-interest) was brought on record as legal heir. The suit was decreed in favour of respondent/plaintiff on 20-10-1977. Being aggrieved petitioner preferred an appeal which was dismissed and judgment decree passed by learned trial Court on 29-4-1978 was affirmed. The petitioner approached the High Court by filing a regular second appeal which was accepted by means of order dated 24-5-1980 and the case was remanded to the learned First Appellate Court for a fresh decision. During pendency of the appeal the respondents/plaintiffs moved an application on 29-10-1980 for amendment in their plaint under Order VI, Rule 17, C.P.C., and their status from co-sharer was substituted to that of owners in the village. The appeal was also dismissed which was assailed before learned High Court and rejected vide judgment impugned.
3. We have heard Ch.Masood Ahmad Bajwa, learned Advocate Supreme Court on behalf of petitioner and Rana Abdur Rahim, learned Advocate Supreme Court for respondents or length.
4. We have carefully examined the judgment/decree dated 20-10-1977 passed by learned Civil Judge, Rahimyar Khan, judgment and decree dated 29-4-1978 passed by learned District Judge, Rahimyar Khan and order dated 24-5-1980 of High Court whereby the case was remanded for a fresh decision. We have also perused the judgment/decree of learned Additional District Judge-II, dated 11-7-1981 and judgment impugned. We have scanned the entire evidence with the eminent assistance of learned counsel. It may be noted that in a suit of pre-emption an amendment was allowed after lapse of eleven years which has adversely affected the interest of the petitioners as the amendment got incorporated has changed the status of respondents plaintiffs from "co- sharers" to that of "owners". A bare perusal of the judgment impugned would reveal that it mainly prevailed upon the High Court that respondent/plaintiffs could not prove their right of preemption being co-owners in the Khata but according to High Court they were succeeded in establishing their ownership of the estate and thus on the basis of such superior right the suit had rightly been decreed. It however, escaped notice while arriving at the said conclusion that initially the respondents/plaintiffs tiled a suit and claimed pre-emption on the basis of their preferential right being co-sharers which was subsequently modified due to an amendment permitted to be made by learned Additional District Judge. It also escaped notice that the said permission was granted after lapse of eleven years in a pre-emption suit and has adversely affected the case of petitioner.
For the sake of argument if it is admitted that the amendment had not changed the complexion of the suit even then it was a substantial change. It is quite amazing that no opportunity was afforded to the petitioners to lead fresh evidence or rebut subsequent claim of respondents/plaintiffs who claimed preferential right being owners of the estate. The High Court has placed much reliance on Exii.P/1 which is a Jamabandi' and cannot be considered exclusive proof of ownership. It is to be mentioned here at this juncture that the amendment in the plaint was allowed at belated stage to assert the right of co-owner in the estate and, therefore, petitioner should have been given an opportunity to lead evidence to rebut the said assertion which admittedly has not been given.
5. Rana Abdur Rahim, learned Advocate Supreme .Court on behalf of cavetors/respondents when confronted with the said admitted fact he could not offer any plausible justification that as to why such opportunity should have not been granted to the petitioner. We are conscious of the fact that application preferred on behalf of respondents-plaintiffs under Order VI, rule 17 was moved at belated stage and after remand but it is well entrenched legal position that amendment can be allowed in the pleadings at any stage even by the First, Second Appellate Cowl, or in revision or even in appeal before the Supreme Court. In this regard we are fortified by the dictum laid down in Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345), Mir Mazar v. Azim (PLD 1993 SC 332), Keramat Ali v.
Muhammad Yunus (PLD 1963 SC 191), Rahim Noor v. Salim Bibi (PLD 1992 SC 30), Abdul Rashid v.
Muhammad Tufail (PLD 1992 SC 180), Ghulam Nabi v. Nazir Ahmad (1985 SCM R 824). It, however, cannot be ignored that where such amendment is allowed the other side must be afforded an opportunity to meet such amendment which can be provided by permitting to file an additional written statement or to lead further evidence. In this regard reference can be made to Muhammad Sharif v. Muhammad Latif (1989 SCM R 2040).
6. As discussed hereinabove proper opportunity to lead evidence was never afforded to the petitioner to controvert the question of preferential right claimed on the basis of ownership in the estate which has resulted in serious miscarriage of justice. We are, therefore. Inclined to convert this petition into appeal, which is accepted and judgment impugned is hereby set aside with the direction that amended written statement be filed by the petitioner and necessary evidence may be led to controvert the preferential rights claimed as owners in the estate. The case is remanded to the Court of learned Additional District Judge-II, Rahimyar Khan, where the amended written statement shall be filed and after affording opportunity of hearing to both the parties the case be decided on merits and in accordance with law expeditiously as the matter has been lingering on for one or the other pretext since 1971.