Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Regular First Appeal No. 130 of 1979, decided on 5th October, 1983.
‑‑ Ss. 4 & 15‑Partial pre‑emption‑Preemptor proposing to exercise his superior right in respect of entire transaction‑Express ing his willingness to pay entire consideration in sale‑deed‑Omis sion of Khasra or misdescription of Khatauni and certain other khasras, held, would hardly make a case of partial pre‑emption.
‑‑‑‑‑0. VI, r. 17‑Punjab Pre‑emption Act (I of 1913), S. 15‑‑Amend ment of pleadings‑Errors in description of property sought to be pre‑empted attributed to carelessness on part of counsel drafting plaint‑Application for amendment to correct error dismissed by trial Court as same filed belatedly, after final arguments and that gross negligence of pre‑emptor in not moving Court earlier‑Held, amendments neither changing nature of suit nor taking vendee surprise, trial Court ought to have allowed amendment of plaint. [Plaint].
Bahadur Shah v. Sharaf P L D 1973 Lah. 513 and Muhammad Arshad Khan v. Murad Khan P L D 1965 Pesh. 225 ref.
A. K. Dogar for Appellant.
Ch. Bashir Ahmad for Respondent.
Date of bearing : 15th October, 1983.
.‑This. regular first appeal is from the judgment and decree, dated 24th June, 1979 of Civil Judge Ist Class, Sheikhupura, whereby the suit of the appellant for pre‑emption was dismissed.
2. One Farzand Ali was owner of the land in dispute measuring 340 kanals 3 marlas situate in village Chuharkana of Tehsil Sheikhupura. By a registered deed, dated 13th September, 1975 he sold the said land to the respondent for a consideration of Rs. 3,40,000. On 28th September, 1976 the appellant filed the present suit for pre‑emption on the footing that apart from being a collateral of the vendor he was an owner in the estate.
3. The respondent resisted the suit. He pleaded that the suit did not lie as it was for partial pre‑emption. This is the only plea which is relevant for the purpose of this appeal as the parties are no longer at variance in respect of the other matters. The learned trial Court upheld this plea and dismissed the suit.
4. As stated above the only matter for consideration before us is if the suit of the appellant was for partial pre‑emption. It is to be noticed that in paragraph No. 3 of the plaint the appellant has clearly stated that he proposed to exercise his superior right in respect of the entire transac tion. However, while giving the description of the land in dispute in the plaint he omitted Khasra No. 5202 and misdescribed Khasras bearing Nos. 5266, 5062 and 5170. He also incorrectly gave the number of the Khatauni as 1938/1 instead of 1938. To supply the omission and correct the misdes criptions he moved an application for that amendment of the plaint. This application was dismissed by the learned trial Court on the grounds mainly, that it had been made belatedly after the final arguments had been heard and that the appellant had been grossly negligent in not moving the Court earlier in this regard.
5. We tray at once mention that the plea of partial pre‑emption is available to a vendee only where the right of pre‑emption of the pre emptor extends to the whole of the property yet he seeks to enforce his claim only in respect of a portion thereof. But this is not the case here. As already stated, in his plaint the appellant had unequivocally stated that he intended to enforce his right in respect of the entire bargain. Further, during the course ' of proceed ings he expressed his willingness to pay the entire consideration mentioned in the sale‑deed. This being so the omission of a Khasra or the misdescription of the Khatauni and certain other Khasras would hardly make it a case of partial pre‑emption. On the other hand it is quite obvious that these errors in the description of the property sought to be pre‑empted are attributable to the carelessness on the part of counsel who drafted the plaint. We should, therefore, think that the learned trial Court ought to have allowed the appellant to amend his plaint to supply the omission and correct the misdescriptions. The amendments would have neither changed the nature of the suit nor taken the respondent by surprise. In support of the view which we take we would refer to the cases of Bahadur Shah v. Sharaf (P L D 1973 Lah. 513) and Muhammad Arshad Khan v. Murad) Khan (P L D 1965 Pesh. 225).
6. For the reasons stated above we direct that the plaint be amended in order to supply the omissions and correct the misdescription of the property in dispute. As the superior right of the appellant and the amount for which‑the sale was affected are no longer in dispute we accept this appeal and set aside the judgment and decree of the learned trial Court. The appellant shall deposit on or before 1st December, 1983 the purchase money of Rs. 3,40,000 in Court less the amount already lying in Court as zar‑i‑panjam and on‑making such deposit the respondent shall deliver possession of the land in dispute to the appellant, whose title thereto shall be deemed to have accrued from the date of such deposit, but that if the said amount is not so deposited, the suit shall be dismissed with costs. Since the plaint was defectively drafted the parties shall bear their own costs throughout except in the event of dismissal of the suit on account of the appellant's failure' to make the deposit as mentioned above. If that happens, the appellant shall pay the costs of the respon dent both in this Court as well as in the trial Court.
M.B.A. Petition accepted.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer