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Revision Petition Case No. 266 of 1955 under section 115, Civil P. C. against the order of Senior Sub‑Judge, Bahawalpur, allowing the plaintiff to amend the plaint, dated 9th May 1955.

O. VI, r. 17--- Amendment of plaint‑Costs incidental to amendment accepted by defendant's counsel‑Whether defendants estopped from questioning order as to amendment in revision.

When a counsel accepts costs awarded to him in relation to an order for amendment of a plaint, his acceptance of them cannot be deemed to be acceptance by his client, and even if it were to be considered to be acceptance by the client, the client's right to question the order of amendment in appeal or revision is not adversely affected.

The act of a party in accepting costs cannot be construed to be an estoppel on any principle.

Ghulam Qadar v. Mst. Fateh Bano A I R 1934 Lah. 974 and S. Mahant Prayag Dossijee Varu v. Raja Venkata Perumal A I R 1933 Mad. 410 dissented from.

‑Decision of two Judges of Punjab Chief Court not binding on Single Judge of West Pakistan High Court.

The decision of two Judges of the Punjab Chief Court not being a decision of the High Court of West Pakistan is not binding on a Single judge of the latter Court.

‑Decision on facts‑By the highest tribunal not binding in another case even on the humblest.

A decision on questions of fact given by a tribunal, however eminent, is not binding in another case on any tribunal, however humble.

, O. VI, r. 17--- Amendment of plaint in pre‑emption suit‑Adding items of property omitted from plaint due to alleged inadvertence‑Not allowed in absence of proof of inadvertence‑Civil Procedure Code (V of‑ 1908), S. 115‑Material irregularity in exercise of jurisdiction‑Accepting word of counsel instead of proof of a fact in issue by production of evidence‑Revision lies.

The plaint in a pre‑emption suit set forth only the land as the item of property to be pre‑empted, whereas, the sale in question embraced besides the land baghicha and houses. 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 the 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.

(on revision) that 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.

Further, that 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.

Farzand Ali for Petitioner.

M. E. Rana and Mahmood Khan for Respondent.

‑By this petition for revision, Hashmat Ali and some others, who are contesting defendants in a suit for pre‑emption, seek the reversal of the order passed on the 9th of May 1955, by Mr. Abdul Ghafoor, the then Senior Sub‑Judge, Bahawalpur, granting Major Sheikh Hafiz Ullah permission to amend his plaint. The suit arises out of a sale made by Col. Wahid‑ud‑Din in favour of Hashmat Ali and others for a consideration, which was mentioned in the sale deed to be Rs. 90,000. The sale was effected by a deed registered on the 17th of December 1951, which recited that the vendor was selling a piece of land along with a baghicha and houses. The plaint was put in on the 14th of December 1952, a d it was said therein that the plaintiff wanted to get possession by pre‑emption of the land mentioned in the sale -deed with all rights appertaining thereto. In the written statement put in by the contesting defendants on the 2nd of December 1954, one of the objections taken was that the suit merited dismissal because it was for partial pre‑emption. On the 16th of March 1955, an application was put in for amendment of the plaint alleging that the omission of the mention of the baghicha and the houses in the plaint was merely accidental, because the plaintiff did not want ' to give up his right of pre‑emption with regard to any part of the property sold. The application said that what the plaintiff wanted to do was a correction and not an amendment in the strict sense of the term. The application‑ was resisted but, as mentioned already, was accepted on the 9th of May 1955, with the direction that the plaintiff should pay a sum of Rs. 100 to the counsel for the contesting defendants are costs for the unnecessary adjournment of 'the suit. This amount was paid subsequently and an amended plaint was put in.

Mr. Munawar Elahi, Advocate, who appeared for the plaintiff‑respondent, contended as a preliminary point that, as the costs awarded by the trial judge had been accepted for the contesting defendants, the revision petition did not lie. He urged that the acceptance of costs awarded for allowing the opposite party to amend its pleadings amounted to accepting the order of the amendment as correct and acted as an estoppel. It appears to tile, however, that no question of estoppel arises by reason of the fact that costs, awarded for allowing an amendment of pleadings have been accepted. It is obvious that the party, which pays the costs, does not, because of their acceptance by the person to whom they .were awarded, change its own position. regarding the amendment in any manner, and it is, therefore, difficult to see how the principle of estoppel can be invoked in favour of, a party who has succeeded in making the opposite party accept the amount awarded as cost. The learned counsel for the plaintiff -respondent cited Ghulam Qadar v. Mst. Fateh Bano (A I R 1934 Lah. 974) and S. Mahant Prayag Dossijee Varu v. Raja Venkata Perumal (A I R 1933 Mad. 410) in support of his contention that after costs have been accepted in circumstances like the present, no revision petition should be entertained. No doubt the authorities mentioned above lend some support to the contention of the learned counsel for the plaintiff‑respondent, but, with all respect to the learned Judges who gave those decisions, I fail to see how mere acceptance of the costs can be taken to mean that the party accepting them has given up its intention to challenge" the order of amendment, which was conditional on the payment of costs. I am not unmindful of the fact that the definition of estoppel in section 115 of the Evidence Act is not exhaustive and there may be cases of estoppel which do not fall within the four corners of that section, but, it at appears to me, that the act of a party in accepting costs cannot be construed to be an estoppel on any principle. If it were permissible to pass au order of amendment of pleadings conditional on the opposite party accepting a certain amount as costs, the acceptance of costs will, no doubt, bar a petition for revision, but, as an order of amendment passed by a Court is effective irrespective of the fact whether the costs awarded to the other party are accepted or not, the acceptance of costs cannot bar a petition for revision against the order allowing amendment of pleadings.

In the present case the costs were accepted by the counsel for the contesting defendants to whom they had been awarded and not by the defendants. It was urged that, as acts of a counsel bind his clients, the acceptance of the costs by the counsel has the same consequences as their acceptance by the party itself, but I cannot agree with this contention of the learned counsel for the plaintiff‑respondent. It is true that generally acts of a counsel bind the party, which engages him but the rule applies only to those acts, which a counsel has been authorised by the client or by some provision of law to do for the client or those, which he does for promoting his client's interests. In cases, however, where costs are granted to a counsel and not to a part and the counsel accepts the amount granted as costs, he cannot, under any principle, be held to be acting for his client. The results will, in some cases, be startling if the rule were that when costs are granted to a counsel their acceptance by him amounts to no less than their acceptance by his client. I would, therefore, hold that when a counsel accepts costs awarded to him, his acceptance of them cannot be deemed to be acceptance by his client, and even if it were to be considered to be acceptance by the client, the client's right to question the order of amendment in appeal or revision is not adversely affected.

The learned counsel for the petitioners urged that what the learned judge of the Court below had allowed, by his order dated the 9th of May 1955, is not a mere correction but an amendment, and that, as no ground existed for allow ing the plaint to be amended, the order of the trial judge dated the 9th of May 1955, beset aside in corning to his conclusion that what the plaintiff sought to do was nothing but a correction of a misdescription of the property, the learned Judge of the trial Court relied on a decision of the Punjab Chief Court Jalal Din and others v. Qaim Din and Mst. Umar Bibi and others (62 P R 1914), wherein it was Held that clarification of a plaint in a suit for pre-emption may be allowed at any time. I am in respectful agreement with the proposition that if a plaintiff wanted to do no more than make a correction of an inadvertent misdescription, it may be allowed to be done at any time, but if the learned judges, who decided that case, meant to ay down that additions of the type they were considering must in all cases amount to correction of a misdescription, I would, with great respect, differ from that view. The decision, no doubt, was given by two learned judges, but, as it is not a decision of this Court, it is not binding on me. Moreover, whether the addition intended to be made was a mere correction of an inadvertent misdescription or an amendment of the plaint is, in my view, a question of fact in each case, and. as a decision on questions' of fact given by a tribunal, however eminent, is not binding in another case on any tribunal, however humble, the view of the learned judges of the Chief Court cannot fetter my right---as it did not that of the learned judges of the lower Court-- to give a finding on the question of fact that falls for determination.

In coming to his conclusion, that the plaintiff had no intention of relinquishing his right of pre‑emption in any part of the property transferred by the sale‑deed executed on the 17th of December 1951, the learned judge of the trial Court acted mainly on the statement of the learned counsel, who appeared for the plaintiff before him. The gentleman, who is a retired judicial officer, did not himself draft the plaint and I find from a note made by him on the plaint that it was scribed by his clerk. It transpired during the proceedings for consideration of the question whether or not additions to the plaint be allowed to be made that the counsel, who signed the plaint for the plaintiff, had, through his own clerk, had copied out a document which had been drafted by a petition‑writer. If the counsel did not care to see whether the whole of the property, transferred by the sale‑deed dated the 17th of December 1951, had been sought to be pre‑empted in the plaint, it is clear that he acted with gross carelessness in the discharge of his duty, but the fault was not entirely his as the plaintiff appears to have placed implicit faith in the petition -writer whom he had engaged for drafting the plaint. It is only the scribe of the plaint, who could definitely state whether or not an omission to mention a part of the property in the plaint was intentional, and it appears to me that the learned judge of the Court below acted with material irregularity in the exercise of his jurisdiction in accepting the word of some one other than the original scribe with regard to the matter that required determination. It is true that the plaintiff was not directly responsible for the error that had crept in, but, as he chose to consult a person who cannot be considered to be as qualified as a legal practitioner, he is not entitled to any leniency. On the record, as it stands, it is not possible to say whether the omission of the mention of the baghicha and the houses in the plaint, in spite of the fact that they found a prominent enough place in the sale‑deed, was intentional or not. The onus of proving that what was sought to be done was no more than correction of an inadvertent misdescription was on the plaintiff and as he cannot be said to have discharged that onus the learned judge of the Court below should not have accepted his application and passed the order dated the 9th of May 1955.

In view of what I have said above, I accept this petition and vacate the order dated the 9th of May 1955. It will be for the learned trial judge to decide whether or not the suit of the plaintiff is bad by reason of the fact that it does not claim pre‑emption of the whole of the property sold. The plaintiff‑respondent shall pay the petitioners their costs of this petition.

A. H.

.

THE: END

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