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Civil Appeal No. 16 of 1962, decided on 12th June 1963.

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---Failure to sign memo of appeal‑Not fatal‑Appeal deemed to have been filed on date it was originally presented to Court and not on date on which it is subsequently signed with permission of Court‑Civil Procedure Code (V of 1908), O. XLI, r. 1.

O. VI, r. 17‑Amendment in plaint introducing new case‑Not permissible‑Suit based on one title, sought to be amended so as to rest on another title Amendment not permitted.

An amendment in the plaint introducing a new case should not be allowed. Where the suit is based on one title, amendment into claim based on another title should not be permitted.

Where, therefore, in the original plaint the right to pre‑empt was based on a particular relationship with the vendor and the plaintiff claimed to be heir of the vendor under the Personal Law and, therefore, possessing a right to pre‑empt but in the amendment that he wanted to make the plaintiff was seeking a declaration that the vendor was a limited owner and that her rights of alienation of suit land were restricted, held, that the plaintiff by the amendment sought for, was trying to put forth a new case and as such the amendment sought for, could not be allowed.

A I R 1936 Mad. 632 and A I R 1936 Mad. 785 distinguished.

A I R 1938 Lah. 712 ; 1921 P C 50 and 1935 Pat. 463 cited but not produced.

P L D 1960 Lah. 975 ; 12 U L W R 487 ; A I R 1948 Mad. 179 and A I R 1947 All. 59 ref.

M. Y. Saraf and Abdul Ghafoor for Appellant.

M. Y. Cheema for Respondent No. 2.

Mst. Jia Bibi respondent sold the suit land measuring 5 kanals 4 marlas to Muhammad Fazal respondent by a sale deed registered on 22‑5‑58. Muhammad Hanif appellant brought a suit to pre‑empt the sale claiming the right of prior purchase on the ground that Jia Bibi vendor was his real paternal aunt and that the vendee was a stranger. The vendee in his written statement denied any knowledge of the relationship of the plaintiff' with Mst. Jia Bibi and at the same time asserted that the plaintiff did not possess any right of prior purchase. The trial Court, i.e., the Court of the Sub‑Judge, Mirpur framed the following issues :‑

(1) Does the plaintiff possess the right of prior purchase ass compared to Muhammad Fazal defendant and how (O. P. P.)

(2) Relief.

The trial Court held that under the Personal Law tile plaintiff was not an heir of his aunt (the paternal uncle's wife) therefore he did not possess the right of pre‑emption. It may be mentioned here that when the case had been argued in the trial Court after the evidence of the parties had been closed and it had transpired that the plaintiff did not possess any right of prior purchase on the score of the vendor being his aunt, he made an application to the trial Court invoking permission to call the Patwari halqa with the record to record his evidence in order to bring out that on the death of Gul Hussain the uncle of the plaintiff and husband of Mst. Jia Bibi his inheritance was mutated in the name of his widow as a limited owner. In the alternative it was prayed that the plaintiff be allowed to effect the following amendments in the plaint:‑

(1) that the suit land belonged to Gul Hussain and Mst. Jia Bibi was a limited owner and that she had no right to sell the suit land.

This application was made on 11‑3‑61. The learned Sub‑Judge wrote an elaborate order of four and a half pages rejecting this application by order dated 31‑5‑61. On the same day by a separate judgment he dismissed the plaintiff's suit, the plaintiff then went up in appeal before the District Judge Mirpur who dismissed this appeal and refused permission to amend the plaint. The plaintiff has now come up in second appeal.

On the previous hearing i.e., 20‑4‑1963 an objection was raised by the learned counsel for the vendee‑respondent that the memorandum of appeal had not been signed either by the appellant or by his counsel. Mr. Saraf learned counsel for the appellant sought permission to sign the memorandum and he was allowed to do so subject, of course, to the objection of the learned counsel for the respondent that the appeal shall be said to have been instituted on the date it had been signed by the: learned counsel and that it had become time‑barred on that day. Mr. Saraf has replied to this objection today. Mr. Cheema has not cited any judicial authority in support of his proposition that the memorandum of appeal should be considered to have been presented on the date it was signed and that it should he held to be time‑barred. He has read out Order XLI, rule 1 which provides that the memorandum of appeal should be signed by the party or his counsel and shall be accompanied a copy of the decree appealed from. His argument is that failure to file a copy of the decree is fatal to the appeal therefore, the second "shall", requiring that memorandum of appeal shall be signed shall also be taken to be mandatory. I do not agree with the learned counsel. Failure to sign the plaint or the memo. of appeal and failure to verify the plaint have never been held to be fatal. This is an irregularity that can be cured by allowing the memo to be signed and shall be taken to have been instituted not on the date on which it is signed but on the date it is originally presented into the Court. The preliminary objection is over‑ruled. The trial Court did not permit the plaintiff‑appellant to amend his plaint holding that it vas too late in the day to permit such an amendment and for another reason also that it would be allowing the plaintiff to put forth a new case. It has been argued by the learned counsel for the appellant that his is a suit for pre‑emption and it would remain a suit for pre‑emption even if the amendment sought for is allowed. Having gone through the plaintiff's application seeking permission to amend his plaint, I am of the view that the plaintiff by the amendment sought for is trying to put forth quite a new case. The amendment he wanted to make is that Gul Hussain was the original owner and that on his death Mst. Jia Bibi inherited the land as a limited owner and that she had no right to sell it. The suit as originally framed is a pure pre‑emption suit seeking to pre‑empt a sale made by Mst. Jia Bibi who is nowhere shown to be a limited owner, on the ground that the vendor was the plaintiff's uncle's wife and that the vendee was in no way related to the vendor. In the original plaint the right to pre‑empt is based on a particular relationship with the vendor and the plaintiff claims to be her heir under the Personal Law and therefore possessing a right to pre‑empt but in the amendment that he wants to make he will be putting forth quite a new case, i.e., the usual declaratory suit under the Customary Law seeking a declaration that the vendor was a limited owner and that her rights of alienation of the suit land were restricted. This would be quite a new case.

During the course of arguments the learned counsel for the plaintiff--appellant showed that he only wanted to make an amendment in the plaint that the vendor was a limited owner and that the plaintiff possessed the right of pre‑emption on the ground of being an heir of the husband of the vendor. After hearing the arguments when I went through the file I found that this was not the only amendment that the plaintiff sought to make in the plaint, the learned counsel had conveniently lost sight of the last sentence of the amendment sought to be made and which is to the effect that the vendor had no right to sell. If it was the contention of the plaintiff that the vendor has no right to sell then he has no right to pre‑empt which clearly shows that the plaintiff wanted to change the suit from a pre‑emption suit into the usual declaratory suit under the Customary Law. Even if it be taken that the plaintiff wants to amend his plaint so as to base his claim for pre‑emption on the right of his being an heir of the husband of the vendor, my view is that it would still be introducing a new case, the learned counsel for the appellant has cited A I R 1936 Mad. 632 and A I R 1936 Mad. 785. In these rulings suits had originally been instituted on promissory notes and the plaintiffs were permitted to amend the plaints by falling upon the original considerations. These rulings do not apply to the facts of the present case. The learned counsel also cited A I R 1938 Lah. 712 ; A I R (sic) L B 92; 1921 P C 50 ; 1935 Pat. 463 but these books were not available to the counsel and I do not know what is laid down therein. I, therefore, refrain from making any comments on these authorities. On the other hand learned counsel for the vendee‑respondent has cited P L D 1960 Lah. 975. This is a D. B. case and was decided by Shabir Ahmed and B. Z. Kaikaus, JJ. The facts of this case were that the plaintiffs claimed a prior right of pre‑emption on the ground that the land in suit was sold by the common ancestor of the plaintiff to the common ancestors of the vendors‑a ground which, as pointed out by the vendees in the written statements was not recognized by law, whereupon the plaintiff sought to amend the plaint and to substitute a new ground for the suit, viz., that they were co‑sharers in the Khata, as well as proprietors in the patti'. The application for amendment had been disallowed and the learned Judges held that the appellant's application for amendment was rightly rejected. It was also laid down in this authority that inexperience of the counsel was no ground for showing concession in the matter of amendment of plaints and that pre‑emption being a predatory right, Courts should grant little concession to a plaintiff in such a suit.

It is a well recognized rule of law that an amendment in the plaint introducing a new case should not be allowed where the suit is based on one title, amendment into claim based on another title should not be allowed. In 12 U L W R 487 the original claim was as heir of 'N' but the amendment sought to put in a claim as heir of J'. The amendment was disallowed. In the present case before us, the facts are similar. Originally the plaintiff claimed as heir of Mst. Jia Bibi but by the amend ment sought for he wanted to claim as their of Gul Hussain. In A I R 1948 Mad. 179 amendment was disallowed, where the plaintiff based his claim on a specific title but by the amendment he wanted to base his claim on a different title. A I R 1947 All. 59 is another case which applies to the facts of the case before me. The facts of this case were that in the suit pre‑emption was claimed on the ground that the plaintiff was co‑sharer and that the defendant was a stranger. The plaintiff wanted to amend his plaint so as to claim relief on the ground of his being a near relation of the vendor. It was held that the amendment should not be allowed as it would change the nature of the plaint and would prejudice the defendant. Moreover it should be borne in mind that the plaintiff claims the right of pre‑emption on the ground of the vendor being his paternal uncle's wife and the vendee in his written statement had denied that the plaintiff possessed any right of pre‑emption on that score, still the plaintiff persisted in his claim as originally framed and it was at a very late stage after the arguments had been heard that he turned wise and sought to amend his plaint and even then the amendment sought to introduce a new case altogether. I hold that the Courts below had rightly refused to allow the plaintiff to amend his plaint. The net result is that the plaintiff possessed no right of prior purchase on the ground set forth in the plaint, therefore, his appeal is dismissed with costs.

K. B. A. Appeal dismissed.

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