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Petitioner: SHAMS DIN VS Respondent: AMAN ULLAH and 3 OTHERS
Court Name: Lahore High Court Judge(s): Raja Afrasiab Khan Title: SHAMS DIN vs AMAN ULLAH and 3 OTHERS Case No.: Writ Petition No, 2594 of 1987, Date of Judgment:1987-06-15 Reported As: PLD 1987 Lahore 471 Result: Appeal dismissed
Judgment ORDER ' The petitioner Shames Din has moved this Constitutional petition against the respondents praying therein that the orders dated 14-7-1985 and 21-7-1983, passed by respondent No, 4, Member (Consolidation) Board of Revenue, Punjab, Lahore, be declared without lawful authority and of no legal consequence. 2. The dispute in the case pertains to the consolidation operations which were carried out in village Kot Pindi Das, Tehsil Ferozewala, District Sheikhupura, and which consolidation scheme was confirmed on 30-6-1979. The investigation between the parties ultimately culminated in a the order dated 21-7-1983 passed by the learned Member (Consolidation), Board of Revenue, against the present petitioner on the revision petition filed by the respondents. The petitioner challenged the revisional order dated 21-7-1983, by filing a review petition which was dismissed by the said learned officer on 14-71985. The petitioner has moved this petition on 13-6-1987, after the expiry of more than three years. 3. This Constitutional petition on the face of it suffers from laches and delay inasmuch as the last impugned order was passed as back as 21-7-1983 by the learned Member (Consolidation) Board of Revenue. A review petition filed by the petitioner was also dismissed on 14-7-1985 in the presence of the petitioner. 4. Learned counsel for the petitioner has appended an application under section 5 of the Limitation Act for the condonation of delay in filing the present writ petition. Learned counsel submitted that ..No order was passed in the review petition, but the judgment was reserved on 8-7-1985. However, from a persual of the application, it is evident that the learned Member (Consolidation) Board of Revenue dismissed the review petition on 14-7-1985 after hearing the learned counsel for the
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petitioner. I am not convinced with the explanation provided by the petitioner for the inordinate delay in filing the petition before this Court. In the meantime valuable rights have accrued in favour of the respondents by operation of law. The petitioner was not vigilent in pursuing his own remedies provided to him under the law. He has failed to give any plausible and reasonable explanation in filing the writ petition so late. It is next contended vehemently by learned counsel for the petitioner that under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, no period of limitation has been provided for filing the writ petitions. I do not agree with the contention of the learned counsel. Although no period of limitation is provided under the Constitutional provision, the fact remains that the constitutional petition had to be filed within a reasonable period of time after obtaining the certified copies of the documents. At any rate, after obtaining the certified copies of various documents in a particular case, an aggrieved person has to challenge the impugned orders not later than three months *and if a Constitutional petition is moved after the expiry of three months, the period thereafter has to be adequately and sufficiently explained by the petitioner. In this case I am satisfied that the petitioner was negligent in the prosecution of his matter before the Consolidation authorities. 5. The upshot of the above discussion is that I proceed to dismiss the writ petition in limine without touching the merits of the case. Petition dismissed. 1987 PLD Lahore 473 Before C.A. Rahman and Amjad Khan, JJ NOOR MUHAMMAD and 3 others--Appellants versus JAHANGIR ALI and 8 others-Respondents Regular First Appeal No, 143 of 1979,, heard on 31st March, 1985. (a) Civil Procedure Code (V of 1908)- -0. VI, R. 17--Amendment of ,plaint-Object behind 0. VI, R. 17, C.P.C. Stated--Court may, in .0 epial circumstances, allow amendment of plaint even if it had the eitact of depriving the defendant of his right to plead limitation.--[Limitation 3 It is difficult to accept as a general proposition that the power available to the Court under Order VI, Rule 17, C.P.C. To allow amendment of plaint should not be exercised in a case where the amendment would take away from the defendant the right of defence under the law of limitation. [p. 478] A t. The object behind Rule 17 of Order VI, C.P.C. Is to empower the Court to allow amendment of the plaint where it finds that such amendment would be necessary for determination of thereal question in controversy between the parties. It is true that while exercising the above power, the Court has to see that the amendment allowed by it should not work injustice to the other side and in a case where the amendment would \take away a right which had accrued to the other party by lapse of time the Court generally would not accede to the request for amendment. As for instance the plaintiff would not be permitted to introduce a cause of action through amendment of the plaint when on the date when the amendment is sought his claim under the new cause of action has become barred by limitation. But in exceptional circumstances the Court may allow amendment of the plaint even if it has the .Effeet of depriving the defendant of his right to plead limitation. As for instance where amendment of plaint has been sought to rectify a clerical error or omission in the plaint, the fact that the amendment has been sought after the expiry of the period of limitation, should not preclude the Court from exercising its power under Order VI, Rule 17,i C.P.C. [p. 478] B Tirath Ram v. Dina Nath AIR 1933 Lah. 774 (2), Benwari Ram and another v. Muhammad Yar Khan etc. AIR 1941 All. 49; Ramkaran Thakur And others v. Balder) Thakur and others AIR 1938 Pat. 44 and Lakshmanacharyulu v. Madduri Venkataramanjua Charyulu A 1 R 1926 Mad. 827 not approved. Clidvan.Das v. Amir Khan AIR 1921 PC 50; Abdul Hamid
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v. Khushi Muhammad PLD 1981 Lah. 29; Abdul Karim v. Mashal Khan P L 1980 flesh. 34; Manzoor Hussain v. Sajawal. 1983 SCMR 465 and Gl Nabi v. Sardar Nazir Ahmad 1985 SCMR 824 ref. (h) Civil Procedure Code (V of 1908)-- ---0. VI, R. 17--Punjab Pre-emption Act (I of 1913), Ss. 15 & 21--Suit for pre-emption--Amendment of plaint--Plaintiffs-respondents misled by copy of registered sale-deed through which suit land was purchased by vendees inasmuch as particular Killa number of relevant square of land was not mentioned in said copy and it was on the basis of description of land given therein that the suit was instituted by them--Omission of said Killa number in the plaint being not intentional, could be considered only accidental and through inadvertence--Trial Court, held, had rightly exercised its discretion in allowing amendment of the plaint and its findings that suit instituted by plaintiffs- respondents was not for partial pre-emption was, therefore, correct and not open to question. [p. 479] C (c) Punjab Pre-emption Act (I of 1913)-- ---S. 15--Pre-emption, right of--Suit for pre-emption--Pre-emptors minors and possessing independent right to pre-empt sale of suit land--Right of such pre-emptors, held, could not be lost on account of participation of their father in the negotiation of sale in dispute or even on account of undertaking given by him to vendees at time of sale that no suit to pre-empt the sale would be instituted. [p. 480] D Sanwal Das v. Jaigo Mal and others AIR 1924 Lah. 66 ref. (d) Punjab Pre-emption Act (I of 1913)-- ---S. 15--Suit for pre-emption--Collusion--Proof--Strict proof required to prove that pre-emptor's suit was collusive--Mere fact that some person other than the pre-emptor had financed the suit, held, would not establish that the suit was Benami and was not for the benefit of pre-emptor himself. [p. 481] E Lal Din v. Allah Ditta PLD 1967 Lah. 703 and Imam v. Saif-ur-Rahman PLD 1984 SC 415 ref. (e) Punjab Pre-emption Act (I of 1913)-- ---S. 15--Suit for pre-emption--Pre-emption, right of--Possession of vendee-appellants as tenants at time of sale of land in dispute, held, could not defeat the plaintiff's right of pre-emption because vendees' right to purchase the land in preference to plaintiffs had been lost by joining in the sale with other persons who did not possess similar qualifications as claimed by them. [p. 481] F (f) Punjab Pre-emption Act (I of 1913)- ---S. 15--Suit for pre-emption--Pre-emption, right of--Plaintiffsrespondents admittedly descendants of maternal-uncle of the vendors, falling in category of class IV distant kindred and entitled to inherit the property of the vendors--Claim of plaintiffs-respondents of superior right of pre-emption on account of their relationship with vendors, held, was fully proved. [p. 482] G Mulla on Principles of Mahomedan Law, 1977 Edn., p. 90 ref. (g) Punjab Pre-emption Act (I of 1913)-- ---S. 15--Suit for pre-emption--Claim of vendees for compensation for improvements made in suit land--No reliable evidence produced by vendees to substantiate their contention that they had constructed eight or nine rooms in the Haveli--Contention that they had planted eight hundred trees in the suit land also not proved--Claim that a part of land which was Thur was reclaimed after sale and claim for amount spent on levelling the land not established--Trial Court, held, had rightly rejected claim of vendees for compensation-for improvements. [p. 482] H et seq Ch. Khurshid Ahmad for Appellants. Date of hearing: 31st March, 1985. JUDGMENT ' C.A. RAHMAN, J.-- This regular first appeal has arisen out of a pre-emption suit, instituted by Jahangir Ali, Mst. Zarina, and Mst. Samina minor respondent Nos.1 to 3 through their father Mian
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Abdul Raoof on 10-5-1975, to pre-empt the sale of land measuring 371 kanals 5 marlas situated in village Rachand, Tehsil and District Sheikhupura, effected by Abdul Jabbar, Abdul Ghaffar, Mst. Raisa, Mst. Suraya, Mst. Bilqees and Mst. Nafeesa sons and daughters of Sardar Abdul Majid and Muhammad Fazal Alim son of Sardar Fazal Hakim through the registered sale deed dated 11-5-1974 for an ostensible price of Rs,2,90,000.00 in favour of Nawab Din, Nur Muhammad, Din Muhammad sons of Chiragh Din, Haji Muhammad Ismail son of Nabi Bakhsh, Nur Muhammad son of All Bakhsh and Samiullah son of Rehmatullah and Bashir Ahmad son of Jamal Din on the ground of their relationship with the vendors. Respondent Nos. 1 to 3 contended that the land in question had been sold for Rs:2,40,000.00, which was also its market value but in order to defeat their right of pre- emption. Fictitious price of Rs,2,90,000.00 was mentioned in the sale deed. However, in the replication filed by them they admitted the price of the suit land as Rs,2,90,000.00 and showed their willingness to pay the same in the event of their suit being decreed. 2. After the institution of the suit Din Muhammad, one of the vendees, died and his legal representatives, namely, Bashir Ahmad, Mst. Hamidan Bibi, Mst. Rashidan Bibi and Mst. Bashiran Bibi son and daughters were allowed to defend the suit. In the joint written statement filed by Nawab Din, Nur Muhammad, Bashir son of Din Muhammad, and Nur Muhammad son of Ali Bakhsh, Samiullah and Bashir Ahmed son of Jamal Din, the superior right of pre-emption claimed by respondents No,1 to 3 was denied and it was pleaded that they were entitled to purchase the land in question in preference to any other person as they were in possession of the suit land as tenants at the time of the said sale. In addition to the price of the land amounting to Rs,2,90,000.00 paid by them they claimed to have spent Rs,30,000.00 on the improvements made in the land as well as the Haveli purchased by them. A number of legal objections were also raised in the written statement inasmuch as the suit was bad for non-joinder of necessasry and proper parties; the suit was not properly valued for the purpose of court-fee and jurisdiction; it was barred by time as proper court-fee had not been paid at the time of its institution; it was liable to be dismissed as the entire property purchased by them was not described in the plaint; the court-fee paid on the plaint was deficient as no court-fee had been paid on the amount incurred by them on the improvements effected by them after the purchase of the land; suit was benami as it had been instituted for the benefit of Mien Abdul Latif; the right of pre-emption had been waived on account of active participation of the preemption' father Mian Abdul Raoof and their grand-father Mian Abdul Latif in the bargain of sale; and the plaint was Liable for be rejected as it was not duly certified as required under Order VI rule 15 of Civil Procedure Code. Mst. Rashida Bibi, Mst. Mamidan Bibi, Mst. Bashiran Bibi daughters of Din Muhammad deceased-vendee filed a separate joint written statement reiterating the averments made by the aforementioned vendees. Muhammad Ismail, one of the vendees, did not join the other vendees when they submitted the written statement referred to above as his name was omitted in the last amended plaint filed by the pre- emptors in the Court. He, however, had joined the vendees in the written statement earlier filed by them on 2-10-1976 wherein the suit was contested on the same grounds as were stated in the aforementioned written statement, which was filed on 27-7-1979. It may not be out of place to mention here that the name of Muhammad Ismail vendee was allowed to be inserted in the list of the defendants by the trial Court at the request of the pre-emptors as his name had been omitted, in the amended plaint inadvertently and despite that omission he had been participating in the proceedings and defending the suit along with other vendees. From the pleadings of the parties, the trial Court framed the following issues:- (1) Whether the suit is bad for non-joinder of the necessary and proper parties? 0.P.D.; (2) Whether the suit is not properly-valued for the purposes of court-fee and jurisdiction? 0.P.D.; (3) If issue No,2 is proved, then what is the correct valuation? 0.P.Parties; (4) Whether the suit is barred by time? O.P.D. ;
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(5) Whether the suit is for partial pre-emption? O.P.D.; (6) Whether the suit is not maintainable? O.P.D.; (7) Whether the plaintiffs are estopped from bringing this suit? (In view of the objection raised in preliminary 'objection No,7)? O.P.D.; (8) Whether' the suit is mala fide, false, collusive and vaxatious? O.P.D.; (9) Whether the suit is Bainami and not proceed able? O.P.D.; (10) Whether the suit is incompetent (based on preliminary objection No,11)? O.P.D.; (11) What is the effect of non-description of the suit land in the prayer clause of the plaintiff? 0.P.D.; (12) Whether the defendants had tenancy right in the suit land before the sale in dispute? 0.P.D.; (13) Whether the suit has not been properly verified? If so to what effect? O.P.D.; (14) Whether the plaintiffs have a superior right of pre-emption as against the vendee/defendants? O.P.D. (15) Whether the defendants have effected any improvements? If so to what extent? O.P.D. And (16) Relief. 3. The parties led evidence in support of their respective contentions. The trial Court after analysing the oral as well as documentary evidence adduced by the parties and considering their submissions decided all the issues against the vendees and decreed the suit of respondent Nos.1 to 3 on payment of Rs,2,90,000.00 vide judgment dated 4-9-1979. Feeling aggrieved by the judgment and decree of the trial Court, the present appeal was filed by all vendees and the, legal representatives of Din Muhammad deceased. 4. Before the hearing of the appeal, Nawab Din and Nur Muhammad sons of Chiragh Din and the legal heirs of Din Muhammad deceased, who had purchased 1/2 share of the suit land withdrew from the appeal and were allowed to be impleaded as respondents Nos. 4 to 9 by the remaining appellants Nur Muhammad, Samiullah, Bashir Ahmad and Haji Muhammad Ismail, who had purchased 1/2 share in the suit land. 5. In the memorandum of appeal, the findings of the trial Cour under all the issues were assailed by the appellants but at the time of hearing of the appeal, learned counsel for the appellants addressed arguments only with regard to the findings of the trial Court under issue Nos. 5, 8, 9, 14 and 15. 6. Learned counsel for the appellants submitted that the suit instituted by respondent Nos.1 to 3 was liable to be dismissed on the ground of being a suit for partial pre-emption inasmuch as the entire property, which was the subject matter of the sale effected through regisered sale deed dated 11-5-1974 was not mentioned in the plaint initially filed by them. It was only after an objection was raised by the appellants that respondent No,1 to 3 moved the learned trial Court for amendment of their plaint on 15-11-1975 so as to include Killa No,11 of Square No,84 in the plaint which had been omitted in the plaint filed on 10-5-1975. The above application was allowed by the trial Court and thereafter amended plaint was filed on 26-2-1976 when the period of limitation for filing the suit had already expired. According to the learned counsel for the appellants, the trial Court should not have allowed amendment of the plaint after the expiry of the period of limitation and in support of his-submissions, he relied on Tirath Ram v. Dina Nath AIR 1933 Lah. 774 (2). Benwari Ram and another v. Muhammad Yar Khan etc. AIR 1941 All. 49, Ramkaran Thakur and others v. Baldeo Thakur and others AIR 1938 Pat. 44. 7. In the first case cited by learned counsel for the appellants (Tirath Ram v. Dina Nath), the pre- emptor's request for amendment of the plaint so as to plead a new ground in support of his claim of pre-emption was disallowed by the Court, as it was held that the proposed amendment would deprive the vendee from a legal right accrued to him by lapse of time. In Banwari Ram and another v. Muhammad Yar Khan, the plaintiff was not allowed to amend the plaint after the expiry of
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limitation, because he knew at an early stage of the proceedings that his plaint was defective and opportunity was given to him to amend the plaint and yet he had failed to remove the defect. In Ramkaran Thakur and others v. Baldeo Thakur and others AIR 1938 Patna 44), the Court disallowed amendment of the plaint because the plaintiffs-mortagees had failed to ask for money decree by way of alternative relief in the plaint and had sought its amendment at a time when his claim had become barred by limitation. In the case of Addanki Lakshmanacharyulu v. Madduri Venkataramanjua Charyulu AIR 1926 Mad. 827 amendment of the plaint so as to correct the date on which one of the amounts in suit was borrowed by the defendant, was refused on the ground that the amendment would have the effect of depriving the defendants of the defence of limitation. 8. It is difficult to accept as a general proposition that the power available to the Court under Order VI rule 17 C.P.C. To allow amendment of plaint should not be exercised in a case where the A amendment would take away from the defendant Site right of defence under the law of limitation. In this connection references may be made to the following observations made by the Privy Council in Charan Das v. Amir Khan AIR 1921 PC 50:- "That there was full power to make the amendment cannot be disputed, and although such a power should not as a rule be exercised where its effect is 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." 9. The object behind Rule 17 of Order VI, C.P.C. Is to empower the Court to allow amendment of the plaint where it finds that such amendment would be necessary for determination of the real question in controversy between the parties. It is true that while exercising the above power, the Court has to see that the amendment allowed by it should not work injustice to the other side and in a case where the amendment would ,take away a right which had accrued to the other party by lapse of time the Court generally would not accede to the request for amendment. As for instance the plaintiff would not be permitted to introduce a cause of action through amendment of the plaint when on the date when the amendment is sought his claim under the new cause of action has become barred by limitation. But in exceptional circumstances as observed in Charan Des's case, noticed above the Court may allow amendment of the plaint even if it has the effect of depriving the defendant of his right to plead limitation. As for instance where amendment of plaint has been sought to rectify a clerical error or omission in the plaint, the fact that the amendment has been sought after the expiry of the period of limitation, should not preclude the Court from exercising its power under Order VI Rule 17 C.P.C. In this connection, reference may be made to Mst. Miran v. Mir Hussain and another 1980 CLC 549, where correction of wrong survey number of the suit land entered in the -plaint in a pre-emption suit was allowed to be corrected by amendment even after the expiry of the period of limitation prescribed for the filing of the suit. In Abdul Hamid v. Khushi Muhammad PLJ 1981 Lah. 29, which was also a pre-emption suit, amendment of the plaint was allowed to rectify the error occurring in the plaint regarding description of the land on account of mistakes in the copies of sale deed and Jamabandi supplied to the pre-emptor, although the period of limitation for filing the suit had expired. Abdul Karim v. Mashal Khan PLD 1980 Pesh. 35 and Manzoor Husain v. Sajawal 1983 SCMR 465 may also be referred to in this connection. In Ghulam Nabi v. Sardar Nazir Ahmad, a case recently decided by the Supreme Court which is reported as 1985 SCMR 824, it was held that clerical errors and omissions and mis-description in respect of the suit property having inadvertently crept into the plaint at the time of its presentation could be allowed to be rectified and removed by amendment of the plaint. Under the circumstances, it could not be said that any right had accrued to the other party on account of the expiry of the period of limitation. Amendment under such circumstances could be allowed even at the stage of appeal in the highest Court.
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10. In the present case respondent Nos.1 to 3 were misled by the certified copy of the registered sale deed (Exh.P.6) through which the suit land was purchased by the vendees inasmuch as Killa No,11 of Square No,84 was not mentioned in the said copy and it was on the basis of the description of the land given in the aforementioned copy of the sale deed that the suit was instituted by them. The omission of Killa No,11 of Square No,84 in the plaint was, therefore, not intentional and as such could be considered only accidental and through inadvertence. In the circumstances of the case, the trial Court had rightly exercised its discretion in allowing amendment of the plaint. The finding of the trial Court under issue No, 5 that the suit instituted by respondent Nos.1 to 3 was not for partial pre-emption was, therefore, correct and hot open to question. 11. The appellant's contention that the suit instituted by respondent Nos.1 to 3 was collusive and Benami giving rise to issue Nos. 8 and 9, was rejected by the trial Court, as the oral evidence produced by the appellants in that behalf was not reliable. Learned counsel for the appellants submitted that the learned trial Court had failed to appreciate the evidence produced by the appellants. According to the appellants Mian Abdul Latif, had persuaded them to purchase the suit land and had taken active part in the bargain of sale but after the sale he got the pre-emption suit, instituted by his minor grandchildren. He provided them with necessary funds to meet the litigation expenses. Learned counsel for the appellants referred to the depositions of Abdul Rashid D.W.1, Ghulam Nabi D.W. 5, Muhammad Ismail appellant D.W.7 and Nawab Din appellant D.W.9. Abdul Rashid D.W.1 deposed that the bargain of sale was struck at the bungalow of Mian Abdul Latif. He was present when the bargaih of sale was struck and had given assurance that the sale would not be pre-empted. Ghulam Babi D.W. 5 stated that the sale deed was written by Iqrar Shah petition- writer at the instance of Mian Abdul Latif who even received the sale price paid at the time of registration of the sale deed. He further deposed that about a year before his making statement in Court he alongwith Nawab and Isma il appellants had approached Mian Abdul Latif and had requested him to withdraw the pre-emption suit if he needed their votes in the election. Mian Abdul Latif, told them that…
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