Find a Lawyer

Civil Petition for Leave to Appeal No.4/Mirpur 6f 1989, decided on 4^thMarch, 1989.

(On appeal from the judgment and decree of the High Court dated 17 11 1988 in Civil Appeal No.1 of 1988).

S. 14 Civil Procedure Code (V of 1908), O.VI, R.17 Pre emption suit Amendment in plaint after period of limitation cannot be allowed for substituting or supplementing qualification alien to the original suit after lapse of period of limitation Where amendment was sought to avert the failure of petitioner to get the decree on basis of allegations, such amendment application could not be termed to have been made in good faith. [ Limitation].

In a suit for pre emption the amendment seeking to introduce a new ground either for substituting or supplementing the qualification alien to the original suit for preferential right of pre emption cannot be allowed after the lapse of period of limitation prescribed for filing the suit of pre emption; because such an amendment would deprive the defendants of a valuable right which had accrued to them by lapse of time and such a recourse is not permissible.

In the present case a qualification to pre empt the suit land was omitted to be included in the plaint and there is nothing to say that this omission was, in any way, through inadvertence or for any other reason beyond the control of the petitioners. Nothing was shown to prove that in pre emption suits a qualification omitted to be entered in the plaint was allowed to be included by way of an amendment after the prescribed period of limitation.

Nargis Begum v. Muhammad Ibrahim 1983 CLC 2923; Rulia Ram v. Ram Chandar Das AIR 1933 Lah. 774(1); Jehangir All v. Fazalur Rahman 1984 CLC 3379; Sardar Khan v. Ghulam Sarwar PLD 1982 Azad J&K 128; Shah Muhammad v. Hayat PLD 1960 (W.P.) Lah. 975; Banwari Ram v. Muhammad Yar Khan AIR 1941 All, 49, M.B. Sirkar and Sons v. Powell and Co. AIR 1956 Cal. 630; Weldon v. Neal (1887) 19 Q.B.D. 394(c); Muhammad Zahoor Ali Khan v. Mt. Thakooranee Rutta Koer 11 Moo Ind. App. 468(D); Charandas v. Amin Khan 47 Ind. App. 255; AIR 1921 PC 50 (AIR V 8)(E) ref.

----S. 44--Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.), S.14 Leave to appeal cannot be granted in routine to raise false hopes in the minds .of litigants and to avoid blame of intellectual dishonesty.

Ch. Ali Muhammad for Petitioners.

Raja Muhammad Siddique for Non Petitioners

This petition for leave to appeal seeks quashment of the judgment of the High Court dated 17 11 1988 whereby the High Court could not be persuaded to accept the appeal which was dismissed accordingly.

2. Land sold by Munshi Khan to Abdur Rashid and Muhammad 2aman was sought to be pre empted by Rai Muhammad, petitioner. Mst. Motti Begum and Mst. Resham Begum were arrayed as pro forma defendants.

3. The right of prior purchase of the suit land was claimed by Raj Muhammad for his being related to the vendor. The non petitioners (defendants) repudiated the right of the petitioner in their written statement. The trial Judge, vide his judgment and decree dated 12 6 1983, dismissed the suit for insufficient evidence to prove the right of prior purchase. Appeal taken to the District Judge by the petitioner also failed vide order dated 11 10 1987.

4. During the pendency of the appeal before the District Judge, the petitioner" moved an application for amendment of the plaint so as to add additional grounds of his right of prior purchase as against the vendee. The grounds sought to be included by way of amendment are that he is entitled to have the decree of prior purchase as being agnate of the vendor and also co sharer in the "Khewat" and "Khata" of the suit land. It may be stated here that before the District Judge the learned counsel for the petitioner conceded that if these grounds are not allowed to be included by way of an amendment; he has no case of prior purchase. The application was disallowed by the aforesaid order of the District Judge.

5. The petitioner went up in second appeal. In second appeal the High Court, the High Court, by way of the impugned order, disallowed the appeal in maintaining the judgment of the District Judge. Hence this petition for leave to appeal to assail the said judgment of the High Court.

6. I have given my best thought to the arguments advanced at the bar. The petitioners" main argument is that in cases of amendments Courts always showed leniency, and even in second appeal amendment is at times allowed. It is correct that an amendment can be allowed at any stage but this general principle is subject to just exceptions. In the instant case the amendment application moved very late and I do not find any satisfactory ground in explaining away the delay in submitting the application. It appears that the amendment is sought to avert the failure of the petitioner to get the decree on the basis of the allegation already made. In the circumstances, the amendment application cannot be termed as to have been made in good faith.

7. Even otherwise; in a suit for pre emption the amendment seeking to introduce a new ground either for substituting or supplementing the qualification alien to the original suit for preferential right of

pre emption cannot be allowed after the lapse of period of limitation prescribed for filing the suit of pre emption; because such an amendment would deprive the defendants of a valuable right which had accrued to them by lapse of time and such a recourse is not permissible. This view had already been indirectly owned by this Court in Nargis Begum v. Muhammad Ibrahim 1983 CLC 2923 wherein it was held:

"The settled law is that if a person claims pre emption on the basis of. certain qualification he cannot later on be allowed to succeed on the ground so omitted even if he, in fact, possessed such a qualification:"

Same view also found favour in a case reported as Rulia Ram v. Ram Chandar Das AIR 1933 Lab. 774(1), wherein amendment application for introducing a new ground on which right of pre emption was claimed was rejected. It was held in the said case that as the effect of the amendment of the plaint would be to change the ground on which the applicant had claimed his right and would take away from the defendant the legal right which had accrued to him by lapse of time, the amendment cannot be allowed. Likewise in Jehangir Ali v. Fazalur Rahman 1984 CLC 3379, Mr. Justice Gul Zareen, the learned Judge of the Lahore High Court, opined that pre emptor cannot be allowed to add new ground in support of his preferential right of pre emption after expiry of period of limitation. This view also earlier prevailed in Sardar Khan v. Ghulam Sarwar PLD 1982 Azad J&K 128 wherein it was observed:--

"Amendment seeking to introduce a new ground either for substituting or supplementing qualification for preferential right of pre emption cannot be allowed after lapse of period of limitation prescribed for filing of pre emption suit.

In Shah Muhammad v. Hayat PLD 1960 (W.P.) Lab. 975, stalwarts of the time, Mr. Justice Shabir Ahmad and Mr. Justice B.Z. Kaikaus, disallowed an amendment for substitution of a new ground of right of pre emption. Relevant part of the observation runs as under:

"Whether or not amendment of pleadings should be allowed must depend on the circumstances of each case, and this is why discretion has been given to Court to allow or disallow amendments. If, for example, the mistake to be rectified is of a technical character, Courts will not be slow to allow amendment in order that justice between the parties may not be defeated for a mere technicality. If, however, the amendment will change the entire complexion of the suit, Courts will be slow to allow the amendment unless such special circumstances exist which make the amendment necessary. That a suit for pre emption stands on precisely the same footing as any other suit as far as the powers of Courts to allow amendment of pleadings go is hardly open to question, but I am clear in my mind that if, in a suit for pre emption a plaintiff wants to amend his plaint in order that he may be able to plead that he had a superior right of pre emption, while in the original plaint his plea was not to that effect, the Court will be slow to allow the amendment unless the omission, in the first instance, was either accidental or due to a slip of the pen.

Where the plaintiffs claimed a superior right of pre emption to that possessed by the vendees on the ground that the land in suit had been sold by the common ancestor of the plaintiffs to the common ancestor of the vendors a ground which, as pointed out by the vendees in their written statement, was not recognized by law, whereupon "the plaintiffs sought to amend the plaint and to substitute new grounds for the suit, viz. that they were co sharers in the Khata, as well as proprietors in the patti, and, meanwhile, about eight months had elapsed since the defect in .the plaint had been pointed out by the defendants vendees:

Held that the plaintiffs" application for amendment was rightly rejected.

Inexperience of counsel was no ground for showing concession in the matter of amendment of pleadings.

Pre emption being but a predatory right, Courts should grant but little concession to a plaintiff in such a suit.

If the plaintiffs had been vigilant; they could have put in an application for amendment soon after the written statement was put in, but they waited for over eight months before putting in the application."

In Banwari Ram v. Muhammad Yar Khan AIR 1941 All. 49, a ,defect in the qualification of plaintiff (pre emptor), discovered at the earliest stage of proceedings, was omitted to be removed within the prescribed period of limitation. An application for amendment was declined after the period of limitation and it was observed:

"The plaintiff however knew at an early stage of the proceedings that his plaint was defective. He was given an opportunity to amend his plaint. His amendment has not removed the defect and in all the circumstances, and especially since the application for amendment is made well beyond the period of limitation, we do not consider that any further indulgence should be granted to the plaintiff."

8. The scope of amendment of pleadings after the lapse of limitation was, again, examined in M.B. Sirkar and Sons v,. Powell and Co. AIR 1956 Cal. 630. Mr. Justice Chakrevartti, C.J., examined the principle of amendment of pleadings of plaintiff where the claim had already been barred by limitation. In this case, plaintiff respondent was a firm. It instituted a suit for recovery of amount. The status of respondent was denied as a firm and it was averred that it was a Company duly registered under the Companies Act, without addition of the word "limited". In the light of objection, plaintiff moved for amendment of pleadings, to sue as a Company. The amendment was resisted on the ground that by the time when the amendment was moved, the claim had become time-barred. The learned Judge, in para 13 of the judgment, construed the scope of amendment of pleadings on expiry of limitation by rejecting the application for amendment, in the following manner:

"Now, it is quite true that O.VI, R.17, Civil P.C. provides that the Court may allow an amendment of the pleadings "at any stage of proceedings". If full effect were to be given to the literal meaning of that language, questions of limitation would obviously be utterly irrelevant; but the Courts have imposed a qualification on the words of the Rule on the grounds of justice and equity. The object of O.VI, R.17 is to aid justice by making it possible for parties, who had not framed their pleadings in a proper form, to correct the mistake or supply the omissions with a view to bringing to the notice of the Court the real question in controversy in the suit The Courts have said that a provision intended to advance justice cannot itself be so applied as to cause injustice to the other party and that one of the cases where injustice would be caused, is where an amendment, if allowed, would take away from a party a right already accrued to it by lapse of time. In such cases, the Court will not allow an amendment. This rule was laid down long ago in many cases f which Weldon v. Neal (1887) 19 Q.B.D. 394(c), is always referred to as the root authority on the subject, but its scope has, to a certain extent, been modified by two decisions of the Privy Council. The Privy Council has held in Muhammad 2ahoor Ali Khan v. Mt. Thakooranee Rutta Koer 11 Moo Ind. App. 468(D) and Charandas v. Amin Khan 47 Ind. App. 255; AIR 1921 PC 50 (AIR V 8) (E), that although as a rule the power to allow an amendment should not be exercised where its effect would be to take away from a defendant a .legal right which has accrued to him by lapse of time, yet "there are cases where such considerations are outweighed by the special circumstances of the case. Such circumstances, however, will have to be very exceptional indeed, if by an amendment a plaintiff is to be allowed to convert what was a bad plaint into a good one or to proceed against a party against whom he could not have proceeded if he brought a suit for the first time on the date he asked for the amendment or when the amendment was allowed."

9. It may be observed here that Ch. Ali Muhammad, the learned counsel for the petitioners, has referred" me to some of the cases of this Court wherein it was observed that "Shamlat Deh" land omitted to be included in a pre emption suit, in the circumstances, can be allowed to be included even after the prescribed period of limitation. No doubt, in cases where such an omission is not intentional, the addition of the "Shamlat,Deh" land may be allowed but the proposition before me is altogether different. Here a qualification to pre empt the suit land was omitted to be included in the plaint and there is nothing to say that this omission was, in any way, through inadvertence or for any other reason beyond the control of the petitioners. The learned counsel, however, was unable to cite any case law which would show that in pre emption suits a qualification omitted to be entered in the plaint was allowed to be included by way of an amendment after the prescribed period of limitation. The argument of Ch. Ali Muhammad, therefore, has no force to be accepted.

In the aforesaid view of the matter, I see no force in this petition for leave to appeal which is dismissed hereby.

Leave to appeal, it may be observed, cannot be granted in routine to raise false hopes in the minds "of the litigants. If we do so, we may be blamed of intellectual dishonesty.

A.A./254/S.C.A.

Leave to appeal refused.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.