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Civil Revision No. 300 of 1963, decided on 26th February 1965.

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O. VI, r. 17‑Expression "and such amendment shall be made as may be necessary for purpose of determining real question of controversy between parties" Rule strongly favours amendment where necessary in the ends of justice‑Amendment sought at time when suit itself if instituted then, would be barred by time‑Amendment, nevertheless, can be allowed if special circumstances and interest of justice so require Pre‑emption suit‑Plaintiff; being misled by wrong entries in certified copies of sale deed, omitting in plaint to include one Khasra No. and mis-describing another‑Defect in plaint, held, of formal nature and allowed to be corrected.

Mst. Fatima v. Sardara I' L D 1955 Lah. 474 and Bhagwanji Mararji Goculdas v. The Alembic Chemical Works Company Ltd. and others P L D 1948 P C '

Hashmat All v. Sheikh Hafizullah etc. P L D 1956 B J 33 held not applicable.

Sh. Abdul Majid for Petitioner.

Khan Bahadur Khan for Respondents Nos. 2 and 3.

All Aqdis for Respondent No. 4.

Date of hearing : 19th February 1965

On the basis of a sale‑deed, registered on the 20th of October 1959, Murad Khan son of Khushal Khan, a resident of Barikab, District Mardan, sold land, measuring 100 kanals, comprised in several khasras, including khasras Nos. 365 and 1281/1244‑45, to Khairullah, a resident of Palo Dheri and Gul Muhammad, a resident of Toru Banda Barikab, District Mardan, for the ostensible sum of ‑Rs. 25,000. This sale gave rise to three pre emption suits.

Mst. Benazira, daughter of Khushal Khan and a sister of the vendor, brought a suits on the 18th of October 1960, for possession by pre‑emption of the disputed property, alleging that it was sold for Rs. 2,000 but the sum of Rs. 25,000 was fraudulently entered in the sale‑deed with a view to ward off pre‑emption suit. She based her superior right of pre‑emption on the ground, that she was a co‑sharer in the suit katha and the vendees did not possess this qualification. This suit was registered at No. 327/1 in the Court of Senior Civil Judge.

Muhammad Irshad and Jawad Khan, sons of Khushal Khan brought a suit, which was registered at No. 28/1 on the 19th of January 1960, alleging that Murad Khan was the owner of 70 kanals, and the remaining 30 kanals belonged to them, and therefore, they sought a declaration that out of the land, sold, they were the owners in possession of 30 kanals and the sale of this land was not binding on them.‑ They claimed possession by pre‑emption of the remaining 70 kanals, and in the alternative, sought possession by pre‑emption of the entire land, on the ground that they were co‑sharers in the suit katha.

The third suit, which was registered at No. 326/1 on the 19th of October 1960, was brought by Muhammad Yusaf for a declaration that out of the land, sold, Murad Khan was the owner of 37 kanals 13 marlas 7 sarsais and, therefore, the sale relating to the rest of the land was void. He sought possession by pre emption of 37 kanals 13 marlas 7 sarsais and, in the alternative, claimed possession of the entire land by pre‑emption.

The three suits were consolidated.

The vendees in their written statement filed in Suit No. 327/1 of Mst. Benazira raised a plea that the suit brought by her was for partial pre‑emption, as she had left over khasra No. 365 and had mis-described khasra No. 1281/1244‑1245. The suit of Muhammad Irshad and Jawad, Khan was resisted on the ground that it was not maintainable in view of the fact, that khasra No. 365, which was also sold on the basis of sale‑deed, was not the subject‑matter of the pre‑emption suit. Written statements were filed by the vendees on, the 17th of December 1960 and the patwari, who was examined on the 15th of February 1962, stated that khasra No. 365 was also sold, and so Muhammad Irshad and Jawad ' Khan applied on the 21st of February 1962, for the amendment of the plaint. Mst. Benazira had also made an application on the 20th of February 1962, for the amendment of the plaint for the inclusion of khasra No. 365. It may be noted here that khasra No. 1281/1244‑1245 was mis-described by Mst. Benazira in the plaint and instead of it, khasra No. 1281/1244 1245 was shown in the plaint. In her application .dated the 20th of February 1962, she prayed for the amendment of her plaint in respect of khasra No. 365. The learned trial Judge, by his order dated the 21st of May 1963, rejected the applications for amendment of Muhammad Irshad and Jawad Khan and Mst. Benazira.

2. Muhammad Irshad and Jawad Khan ,have preferred a revision in this Court. Mst. Benazira has also come up on revision and I propose to dispose of these two revisions by this judgment, as they arise from the same transaction.

3. It may be pointed out that Mst. Benazira had sought the amendment of the plaint with respect to khasra No. 365 only. On the 19th of January 1965, she filed an application in this Court praying that she may be permitted to amend the plaint in respect of khasra No. 1281/1244‑1245 also, which was mis-described in the plaint.

4. The learned trial Judge had disallowed the applications on the ground, that although the vendees had raised a plea of partial pre‑emption in their written statements filed on the 17th of December 1960, but in spite of this, Mst. Benazira applied for amendment on the 20th of February 1962, and Muhammad Irshad and Jawad Khan applied on the 21st of February 1962, i.e., after a period of two years. He observed:‑

"This delay cannot be excused specially in pre‑emption cases which being a technical right negates the freedom of acquisition and so in such cases strict justice has to be done with an eye on accrued rights. Consequently, the application cannot be accepted."

5. After hearing the learned counsel for the parties and examining the record, I am unable to find myself in agreement with the observations of the learned trial Judge. A reference to the record of the two cases would show that the omission of khasra No. 365 by Muhammad Irshad, Jawad Khan and Mst. Benazira and the misdescription of khasra No. 1281/1244‑1245 by Mst. Benazira was due to inefficiency on the part of the Registration Department. Muhammad Irshad and Jawad Khan obtained certified copy of the sale‑deed, which is Exh. P. 2/1 on file No. 28/1 of 1960, and khasra No. 366 is not mentioned in this deed. The same mistake was committed by the Registration Department in the certified copy of the sale‑dead obtained by Mst. Benazira, which is on file No. 327/1 of 1960, where not only khasra No. 365 was omitted but khasra No. 1281/1244‑1245 was misdescribed. Even in the certified copy obtained by Muhammad Yusaf there is the omission of khasra No. 365 and the misdescription of khasra No. 1281/1244‑1245. It is further clear from the file that Mst. Benazira had correctly mentioned the khata numbers in the plaint and had also filed a copy of the fard jamabandi. Muhammad Irshad and Jawad Khan had also filed a copy of the fard jamabandi and have claimed the entire land, sold, on the footing of the sale‑deed. These facts, taken into consideration would show that the petitioners were misled by the wrong entries in the certified copies of the sale‑deed. In A these circumstances, the defect, i.e., the non‑inclusion of khasra No. 365 and the mis-description of khasra No. 1281/1244‑1245 was of a formal nature, which can be allowed to be corrected. In this opinion of mine, I am fortified by a case reported as Mst. Fatima v. Sardara (P L D 1956 Lah. 474). It was held:‑

"Incorrect reproduction in plaint of the khasra numbers, which were the subject of the suit, was a defect of a very formal nature, while correct khasra numbers had been set out in the deed of gift, the basis of the suit, and while the khata numbers were correctly mentioned in the plaint itself. Such a defect should be allowed to be corrected in Court without an adjournment."

6. Learned counsel for the respondents relied upon Hashmat Ali v. Sheikh Haf zullah, etc. (P L D 1956 B J 33). The facts of that case briefly are that some land, baghicha and houses were sold. In the plaint for possession by pre‑emption, only the land as the item of property to be pre‑empted was mentioned, but the baghicha and the houses were omitted. On a plea of partial pre‑emption being raised by the defendant, the plaintiff sought to amend the plaint on ground of inadvertence in the omission of baghicha and the houses. The plaint was drafted by a petition‑writer who was not produced as a witness to depose to the inadvertence alleged, and the trial Court accepted the word of the plaintiff's counsel that the omission was due to inadvertence and allowed amendment of the plaint. In revision, it was held:‑

"The question of inadvertence was a question of fact, and, as the onus to prove the fact of inadvertence was on the plaintiff and as he had failed to establish that fact by authority to produce the petition‑writer responsible for drafting the plaint, the Court should not have allowed the amendment prayed for. The Court acted with material irregularity in the exercise of its jurisdiction in accepting the word of some one other than the original scribe with regard to the matter that required determination and therefore revision was competent."

7. The authority relied upon by the learned counsel for the respondents is not applicable, because in the instant case, the omission of khasra No. 365 in the plaint and the misdescription of khasra No. 1281/1244‑1245 is due to carelessness on the part of the Registration Department, which omitted khasra No. 365 from the certified copy of the deed and misdescribed khasra No. 1281/1244‑1245. A plain reading of Order VI, rule 17 would show that the real. purpose of allowing amendment is to secure proper administration of justice for the purpose of determining the real question in controversy between the parties. The words "and such amendment shall be made as may be necessary for the purpose of determining the real question of controversy between the parties" clearly show the imperative necessity that the Court should try the case on merits. The said rule strongly favours an amendment, where it is necessary in the ends of justice.

8. The next contention raised by the learned counsel for the respondents was that at the time of submission of the applications for amendment of the plaints, the period of limitation to bring a fresh suit for pre‑emption had expired and that defendants had acquired a valuable right. In support of this contention, he relied upon Bhagwanji Morarji Goculdas v. The Alembic Chemical Works Company Ltd. and others (P L D 1948 P C 73) wherein it was held:‑

"In their Lordships view the Court of appeal in India was right to refuse leave to amend, since at the time when leave to amend was sought any claim under the alleged agreement would have been barred by limitation."

9. Learned counsel for the petitioners relied upon Charan Das and others v. Amir Khan and others (A I R 1921 P C 50), which also arose out of a suit for possession by pre‑emption. Their Lordships of the Privy Council while affirming the order of the Judicial ‑Commissioner, N. W. F. P. allowing amendment of the plaint, observed:‑

"Where the plaintiffs, through some clumsy blundering, attempted to assert rights that they undoubtedly possessed under the statute in a form which the statute did not permit, they should be at liberty to express their intention in a plainer and less ambiguous manner, and to amend the plaint so as to express the rights which it has been really their intention all along to establish, although the amendment of plaint is sought to be made at a time when the suit itself is instituted then would be time‑barred. And though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such consideration are outweighed by the special circumstances, of the case."

10. It is no doubt true that Courts would, as a rule, decline to allow amendments, if afresh suit on the amended claim would i be barred by limitation on the date of the application, but that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice.

11. In the light of the authorities, cited above, the applications for amendment are to be allowed, as it is essential for the decision of the real dispute between the parties, and moreover, the omission of khasra No. 365 in the certified copies of the sale‑deed and the mis-description of khasra No. 1281/1244 1245 were due to negligence on the part of the Registration Department. I, therefore, accept these revision petitions, set aside the order of the lower Court and allow amendment of the plaints, as prayed for.

K.B.A. Petitions accepted.

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