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Regular Second Appeal No.842 of 1978, decided on 6th June, 1984.

---S.21--Civil Procedure Code (V of 1908), S.115 & O.VI, R.17- Pre-emption suit--Land purchased and sought to be pre-empted correctly described in plaint---Water rights and other rights attached to land not specifically mentioned in plaint--Objection of partial pre-emption taken by vendee--Pre-emptor making application for amendment of plaint for inclusion therein, water rights and. other rights attached to land--Court leaving question of amendment undecided till final arguments and ultimately decreed suit leaving question of amendment of plaint undecided--Assumption of First Appellate Court that such amendment had been disallowed by Trial Court and that matter stood concluded as said order was not challenged in revision, held, was erroneous--Such misdirected procedure resulted in failure to exercise jurisdiction as well as in failure of justice.

---O.VI, R.17--Amendment of plaint to be allowed liberally- Exception--Amendments which do not alter character of suit or introduce a different cause of action are to be allowed liberally so as to advance justice--Such amendment could be allowed at any stage of proceedings--Technicalities could not be allowed to prevail so as to defeat ends of justice.

Jilal Din and others v. Qaim Din and: others 62 P R 1914 and Syed Akhlaque Hussain and another v. Water Power Development Authority Lahore 1977 S C M R 284 rel.

---S.41--Civil Procedure Code (V of 1908), O.VI. R.17--Amendment of plaint--Land sold, correctly described in plaint but water rights and other rights attached to land not mentioned--Amendment of plaint for inclusion of such rights therein, whether permissible--Where land was properly identified, correctly described and omission to add water rights was not only inadvertent but also inconsequential, amendment in plant, held, could be allowed--In spite of non-mention of water rights and other rights attached to land in plaint, pre-emption suit was :got hit by principle of partial pre-eruption.

Abdul Qaiyum Samundar Khan v. Muhammad Haroon Muhammad Hayat Khan and others A I R 1942 Pesh. 18 and Aiam Sher v. Ram Chand and others 11 P R 1898 ref.

Wazir Muhammad etc. v. Abdul Aziz and another 1982 SCMR 189 and Allah Ditta v. Rahmatullah and 4 others 1984 C L C 849 rel.

---S.100--Punjab Pre-emption Act (I of 1913), S.21--Second appeal- Judgment and decree of First Appellate Court dismissing suit of pre-emption on ground of partial pre-emption being misdirected, based on wrong factual assumption and untenable in law, was set aside by High Court in second appeal.

Syed Karim Ahmad Shah for Appellants.

Rafique Ahmad Bajwa for Respondent.

Date of hearing: 5th June, 1984.

This second appeal under section 100, C.P.C arose out of a suit for possession through pre-emption filed by Muhammad Sharif, predecessor-in-interest of the appellants to pre-empt the sale of land measuring 1 kanal 18 marlas comprised in killa No.25/1 of Square No.59 of Mauza Kot Ranjeet, Tehsil and District Sheikhupura. It was averred that the plaintiff-pre-emptor possessed superior right of pre-emption as he was brother of the vendor as well as owner in the estate. As regards price payable the averment made in the plaint was that in fact Rs.2,000 were actually paid which was also the market value of the land in question and that Rs,8,000 the ostensible sale price was fictitious price mentioned in the sale-deed in order to defeat the pre-emptive right. However, during the trial statement was made accepting ostensible price of Rs.8,000 as the price fixed and paid and the pre-emptor also expressed his willingness to pay the sale price. In case of success of the suit. The trial of the suits filed by Muhammad Sharif and Liaquat Ali and rival pre-emptor proceeded in respect of the 12 issues framed in the two suits. Liaquat Ali rival pre-emptor withdrew his suit and as such Muhammad Sharif was left in the field as the only pre-emptor. The learned trial Judge vide judgment and decree, dated 28-11-1977 decreed the suit on the payment of Rs.8,000 and Rs.441 (on account of expenses). The decree of the trial Court was challenged by the respondent in appeal and the same was accepted by the learned Additional District Judge, Sheikhupura vide judgment and decree, dated 26-7-1978. The only question agitated before the first appellate Court was that of partial pre-emption and accepting the said plea judgment and decree of the trial Court was set aside and the suit was dismissed with costs.

2. In this second appeal obviously the controversy raised was whether the suit was for partial pre-emption. The facts relevant for appreciating this controversy are that Mst. Aziz Begum respondent vendee had purchased through registered sale-deed, dated 11-8-1977 land measuring 1 kanal 18 marlas comprised in killa No.25/1(1-18) Square No.59 and situated in Mauza Kot Ranjeet, Tehsil and District Sheikhupura alongwith water rights and other usual rights attaching to the land. In the plaint the land purchased and sought to pre-empted was correctly described giving its kills number etc but the water rights or the other rights attaching to the land were not specifically mentioned in the plaint. It is pertinent to note that a copy of sale-deed was also brought on record The plaint was allowed to be amended vide order, dated 30-11-1977 so as to implead Liaquat Ali the rival pre-emptor as a defendant in the suit. Muhammad Sharif the plaintiff died and his legal heirs were allowed to be impleaded in place of the deceased plaintiff. The plaint was thus allowed to be amended vide order, dated 5-6-1975. This necessitated the filing of amended plaint, the second time. The appellants-pre-emptors however, on 23-5-1977 made an application under Order VI rule 17 C.P.C. praying that the water rights may be allowed to be included in the relevant para of the plaint and that the valuation of the suit be allowed to be corrected. This application was disposed of by the learned trim Judge vide order, dated 8-9-1977. The amendment of the paragraph as to the valuation was allowed. As regards amendment relating to addition of water rights it was observed, that as the question raised is connected with the matter on which an issue had already been framed the said question will be decided at the time of the decision of the said issue and that learned counsel for the parties may agitate all these matters at the time of arguments. It is pertinent to note at this stage that the two amendments allowed made were formal in nature and the amended plaints had to be filed in order to meet the requirements of 'procedural law. -However, in view of the above observations recorded by the learned trial Court the learned District Judge was not right in holding that the amendment prayed for so as to add the water rights in the relevant para of the plaint was disallowed. Again the question of filing a revision against the said order did not arise as the matter was kept open and was to be decided after hearing final arguments. Be that as it may, the question A of grant or refusal of the amendment application should have been taken up by the first appellate Court for doing justice to the parties. The learned first appellate Court failed to examine this matter in view of the erroneous assumption that the amendment application to the extent of water rights was disallowed by the trial Court and that the matter stood concluded as the said order was not challenged in revision. This misdirected procedure resulted in failure to exercise jurisdiction as, well as in failure of justice. It is well settled that the amendments which do not alter the character of the suit or introduce a different cause of action are to be allowed 'liberally so as-to advance justice. Such an amendment can be allowed at any stage of the proceedings. In the case of Jilal Din and others v. Qaim Din and others 62 Punjab Record 1914 property sold consisted of 41 kanals 18 marlas of land, the second floor of a house, share in a well and share of ahamlat. On 30th March 1909 a suit for pre-emption was brought but in the plaint the property asked 'for was described merely as 41 kanals 18 marlas of land. On 12th May, 1909 plaintiff applied for leave to amend saying, he had not. intended to renounce any part of the claim but had by a kitabi ghalti omitted the house. The Court sanctioned the amendment and it was made. Still the share of the well and of shamilat was left out. On 4th February, 1910 this defect was pointed out by vendee's pleader and the plaint was on same day returned for amendments and put in finally fully amended on 16th February, 1910. The amendment so allowed was challenged. The order allowing the amendment was upheld by the learned Judges observing that this was a case of inadvertence and mis-description of property claimed and not of an intentional omission and the amendments were accordingly admissible. It will, therefore, be seen that the technicalities cannot be allowed to prevail and to defeat the justice and the amendments of the pleadings ought to be allowed liberally provided it does not have the effect of setting up an altogether different cause of action. See Syed Akhlaque Hussain and another v. i Water and Power Development Authority, Lahore 1977 S C M R 284. In the instant case the amendment sought by the appellant-pre-emptor in all fairness should have been allowed. Even otherwise the suit was not hit by the principle of partial pre-emption as the land of killa No.25/ 1 of Sq. No.59 measuring 1 kanal 18 marlas sold vide registered sale-deed, dated 11-8-1973 was sought to be pre-empted. The land was properly identified, correctly described and the omission to add water rights was not only inadvertent but was also inconsequential. The entire bargain was intended to be pre-empted by paying the whole price and as such it cannot be said that the suit wag for partial pre-emption. The learned first appellate Court was also misdirected in relying or, Abdul Qaiyum Samundar Khan v. Muhammad Haroon Muhammad Hayat Khan and others A I R (29) 1942 Pesh.18, Alam Sher v. Ram Chand and others (11 Punjab Record 1898). The question raised and discussed in the two precedents arose in altogether different circumstances and as such the view taken therein has no application to the facts of the instant case.

3. The view that I have taken has the support of the view expressed in Wazir Muhammad etc. v. Abdul Aziz and another 1982 SCMR 189 and Allah Ditta v. Rahmatullah and 4 others 1984 C L C 849.

4. For the aforesaid reasons the judgment and decree, dated 26-7-1978 of the first appellate Court is hereby set aside and consequently judgment and decree, dated 28-7-1977 of the learned trial Court by which the suit of the appellants-plaintiffs stood decreed is restored. The parties are, however, left to bear their own costs.

A. A./F-18/L Appeal accepted.

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