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Civil Petition No. 159 of 1984, decided on 7th September, 1985.

(Against the Judgment and order, dated 4‑12‑1983 of the Lahore High Court, Bahawalpur Bench, in C.R. No. 184 of 1980/BWP).

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.VI, r. 17‑ Amendment of written statement‑‑Order allowing amendment impugned‑ Leave to appeal granted to examine question that application for amendment was inordinately delayed as facts were known by respondent when they submitted two applications but did not get written statement amended; that prayer made was barred by principle of constructive res judicata as their earlier effort to get same matter noticed in pending suit had failed; and that in context of proceedings between parties such a prayer and its acceptance amounted to abuse of process of Court which should at all costs be discouraged.

Muhammad Ismail Qureshi, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 7th September, 1985.

The plaintiff pre‑emptor seeks leave to appeal against the judgment of the Lahore High Court, dated 4th of December, 1983 whereby a revision petition filed by him objecting to the amendment of the written statement allowed by the Civil Judge 1st Class, Rahimyar Khan, was dismissed.

2. The petitioner instituted a civil suit pre‑empting a sale of land by a registered deed, dated 2‑7‑1975. The suit was contested. At the concluding stage of the trial, the respondents filed three applications. The first application was for amendment of the written statement under Order VI, rule 17, C.P.C. claiming equal or superior right of pre‑emption on the basis of a gift. The second application was under Order XVI, rule 1, C.P.C. for permission to file a list of additional witnesses. The third was an application under Order XIII, rule 2 of the C.P.C. for permission to produce three documents mainly to substantiate the claim set out in the first application. These applications were made in the middle of 1978 and were all dismissed. The petition for leave to appeal (C.P. No. 131/79) also failed. The defendant respondents thereafter approached the civil Court and obtained a consent decree in respect of the same gift supported by the same documents whose production was refused earlier. Equipped with a decree of the civil Court with regard to the gift, the respondents again moved application‑‑This time for amendment of the written statement alone taking up mainly two additional grounds. The first was that the Pre‑emption Law was repugnant to the Quran and Sunnah and such could not be enforced by the petitioner against them and secondly setting up the superior right of pre‑emption on the basis of the decree and gift allegedly made prior to the purchase or the pre‑emption suit of the petitioner. The trial Court allowed this amendment. The High Court did not interfere in revision.

3. It is submitted by the learned counsel for the petitioner that such an application was inordinately delayed as the facts were known to the respondents when they submitted their first written statement and even afterwards when they submitted the first two applications in the middle of 1978 but did not get the written statement amended with view to set up such a plea. Besides, it is contended that such a prayer as was made was barred by the principle of constructive res judicata as their earlier effort to get the same matter noticed in the pending suit had failed, finally, it is contended that in the context of the proceedings between the parties such a prayer and its acceptance clearly amounts to an abuse of the process of the Court which should at all costs be discouraged.

4. We consider that the points raised are of law and require further examination. Leave to appeal is, therefore, granted. Security Rs.2,500. Interim order to continue.

M. I. Leave granted.

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