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Civil Revision No. 40 of 1981, heard on 5th March, 1985.

‑‑ S. 115‑Revisional jurisdiction, exercise of‑ Order of Court allowing amendment of plaint after judicially considering facts, held, would be case decided', and within purview of revisional jurisdiction of High Court.

Abdul Aziz Shah and another v. Abdul Ghafoor and another 1985 S C M R 221 fol.

‑ O. VI, r. 5‑Replication, filing of‑Permission to allow filing of replication, held, .vas within province of trial Court‑Court could not be constrained to obtain replication so as to serve purpose of amended plaint.

Rulia Ram v. Ram Chandar Das and others A I R 1933 Lah. 744; Shah Muhammad and others v. Hayat and others P L D 1960 Lah. 975; Mst. Rayat Begum v. Faiz Ahmad and another P L D 1966 Lah. 581 and Sat Narain v. Pheroze Behramji and others A I R 1936 Lah. 35 ref.

‑‑ S. 115 & O. VI, r. 17‑Gift ‑ Sale ‑‑ Alienation ‑ Revisional jurisdiction, exercise of‑Effect of non‑amendment ‑Vendee by non amendment of plaint, held, accrued valuable right to retain property alienation of which was claimed to be gift and not sale ‑First appellate court by allowing amendment of plaint committed material irregularity‑Irregular exercise of jurisdiction by appellate forum, could be revised by High Court in revisional jurisdiction.

Ch. M. A. Latif Amritsar for Petitioners.

Mirza Manzoor Ahmad for Respondent.

Date of hearing: 5th March, 1985.

Muddasar Hussain and Nasar Hussain, through this revision petition, filed under section 115, of the C. P. C., have sought to set aside the judgment dated 12‑1‑1981, pronounced by Sh. Saeed Ahmad, the then Additional District Judge, Multan, who had allowed the respondent to amend the plaint.

2. The facts of this case in substance are that Mst. Khurshid Begum was the owner of 8 Kanals of land, situate in village Khan Bahadar Garb, Tahsil Kabirwala, District Multan, who sold the same in favour of the petitioners for an ostensible consideration of Rs. 500, Mst. Kaniz Fatima, the respondent sought to pre‑empt the sale of the land in dispute on payment of Rs. 300.

3. The petitioners pleaded that the pre‑emptor had not shown any ground of her preferential right of pre‑emption in the plaint and consequently, the plaint did not disclose any cause of action and should be rejected under Order V1I, rule 11, C. P. C. The learned ‑trial Court rejected the plaint under Order V1I, rule 11, C. P. C. h may be noted that the respondent had prayed for the amendment of her plaint and‑to file a replication. Both the prayers did not find favour with the learned Civil Judge and the respondent lodged a successful appeal and the proposed amendment to insert the reason of her claim was allowed by the learned appellate forum. The same order has been assailed in this revi sion petition.

4. At the very outset, the learned counsel for the respondent contended that the order allowing the amendment of the plaint was not a case decided within the meaning of section 115, C. P. C. I diverted his attention towards a recent ruling, namely, Abdul Aziz Shah and another v. Abdul Ghafoor and another (1985 S C M R 221), wherein it has been adjudicated that order of the Court allowing amendment of the plaint judicially considering the facts can be said to be a case decided. The learned counsel for the respondent scrupulously conceded that the impugned judgment is a case decided within the meaning of section 115, C. P. C.

5. It was represented on behalf of the petitioners that the replica tion could not be filed as a matter of right by a plaintiff and the complete omission of the reason for exercising better right of pre‑emption. could not be allowed to be inserted by way of amendment. He has referred to Rulia Ram v. Ram Chandar Das and others (A I R 1933 Lah. 744), in which, it had been stated that the pre‑emption suit should contain the ground on which pre‑emption is claimed and such ground cannot be added after the limita tion had expired. In Shah Muhammad and others v. Hayat and others (P L D 1960 (W.P.) Lah. 975), a pre‑emptor had based his superior right, which did not exist in law and when he sought to amend the plaint, by substituting a new basis for the suit, the said amendment was disallowed on the plea that concession could not be shown to a pre‑emptor, who is seized of a predatory right.

6. Conversely, Mst. Hayat Begum v. Faiz Ahmad and another (P L D 1966 (W.P.) Lah. 581), has been quoted to show that it is enough for a plaintiff to state in the plaint that he has a right of pre‑emption and be need not specify the ground on which such claim is based. This precedent is distinguishable because in the plaint in the said suit, the basis of right of pre‑emption had been mentioned but the existence of custom had been omitted. The principle enunciated in this ruling cannot safely be extended to the facts of the instant case. The respondent has also taken refuge under a precedent, namely, Sat Narain v. Pheroze Behramji and others (A I R 1936 Lah. 35). . In the said suit, the plaintiff had alleged in the plaint that the had a right of pre‑emption without specifying ground of his claim but had specified the rid ground is replication and it was held that it was a part of the pleading and could be considered without sufficient clarity. In the instant case, the filing of the replication was disallowed. It is within the province o a civil Court to order the tiling of replication or not. The Court cannot be constrained that the replication must be filed so that. it can serve the purpose g of amended plaint The order for obtaining a replication by the civil Court has been deprecated by the superior Courts. The refusal of the learned Civil Judge to obtain replication was, therefore justified.

7. The law favours a vigilant and not the indolent. By the non amendment of the plaint, the petitioners had accrued a valuable right to retain the property in dispute, the alienation of which is claimed to be a gift and not a sale The learned first appellate forum seems to have committed material irregularity in the exercise of its jurisdiction and the impugned judgment is revisable. I. therefore, accept this revision petitions and set aside the impugned judgment of the learned Additional District Judge, Multan and restore that .of the Civil Judge. Due to legal com plexities involved in this revision petition, the parties are left to bear their, own costs of this suit.

Revision allowed.

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