Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD SARWAR VS Respondent: MUHAMMAD ARSHADHonorable Justice Muhammad Jehangir ArshadCh. Muhammad Yasin Zahid
2006 M L D 1390
2006 M L D 1390
[Lahore]
Before Muhammad Jehangir Arshad, J
MUHAMMAD SARWAR---Petitioner
Versus
MUHAMMAD ARSHAD and 2 others---Respondents
Writ Petition No.5337 of 2006, decided on 29th May, 2006.
(a) Civil Procedure Code (V of 1908)---
----O. VI, R.17---Punjab Pre-emption Act (IX of 1991), S.22---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre emption suit---Amendment in pleadings---Power of Court to allow amendment---Scope and extent---Court had got ample powers to allow amendment in pleadings irrespective of the stage of suit, provided the same was just and essential for proper decision of the matter---Court would keep in view that proposed amendment would neither change the complexion of the suit nor include a ground created during pendency of the suit.
(b) Civil Procedure Code (V of 1908)---
----O. VI, R.17---Punjab Pre-emption Act (IX of 1991), S.22---West Pakistan Land Revenue Act, (XVII of 1967), S.42---Constitution of Pakistan (1973), Art.199---Constitutional petition---Pre-emption suit---Amendment in pleadings---Defendant wanted to amend his written statement so as to add ground regarding construction on the suit-land purchased by him during pendency of pre-emption suit---Trial Court allowed amendment in pleadings---Appellate Court set aside the order of Trial Court---Validity---Land was sold through mutation---Written statement filed by defendant bore no reference to the purchase of land and construction raised thereon---Admittedly during the pendency of suit, defendant raised construction on the land, despite knowing the pendency of suit qua earlier sale---Raising of construction over suit-land could not be made a part of original sale and subject of pre-emption suit---Under S.22 of Punjab Pre-emption Act, 1991, however, after original sale and before Talb-e-Ishhad, Vendee/defendant could claim compensation with regard to the improvement effected by him---Defendant could not claim compensation after Talb-e-Ishhad---Order of Appellate Court did not suffer from any illegality---Constitutional petition was dismissed.
Ch. Muhammad Yasin Zahid for Petitioner.
Date of hearing: 29th May, 2006.
JUDGMENT
MUHAMMAD JEHANGIR ARSHAD, J.---The facts giving rise to the instant writ petition in brief are that petitioner purchased agricultural land measuring 34-kanals 6-marlas situated in Mouza Shekhum Tehsil Pattoki through Mutation No.3278, dated 5-6-2004 for an ostensible sale price of Rs.6,00,000. Against the said sale the respondent No.1 filed a suit for pre-emption on 1-9-2004 in which the petitioner filed written statement on 12-10-2004. Issues were framed on 1-11-2004 and on conclusion of evidence of respondent No.1 the case was fixed for the evidence of the petitioner, when on 6-4-2005 an application was moved by the petitioner before the learned trail Court seeking amendment in the written statement so as to include the following plea in sub-para (2) thereof:--
The respondent No.1 filed reply to the said application and the learned trial Court vide order, dated 20-1-2006 accepted the application of the petitioner, as such allowed him to amend the written statement. The above order of the learned trial Court was challenged by respondent No.1 through revision which was accepted by learned Additional District Judge, Pattoki on 13-5-2006 as a result thereof, the order, dated 2-1-2006 of the learned trial Court allowing amendment in the written statement, was set aside and application filed by him seeking amendment was accordingly dismissed. The present writ petition has been directed against the above said revisional order of the learned Additional District Judge, dated 13-5-2006.
2. It has been argued by learned counsel for the petitioner that civil Court has got vast powers of allowing amendment in the pleading in terms of Order VI, Rule 17, Cr.P.C. and thus the learned Additional District Judge acted illegally and with material irregularity by setting aside the order of the learned Trial Court allowing amendment in the written statement. Further argues that proposed amendment is not only just but also essential for the correct decision of the matter in issue.
3. The arguments of learned counsel for the petitioner considered and record perused.
4. There is no cavil to the proposition that Court has got vast and ample powers to allow amendment in the pleadings irrespective of the stage provided the same is just and essential for proper decision of the matter in issue and further the proposed amendment does not change the complexion of the suit/defence. It is however, to be seen whether the proposed amendment is just and essential for correct decision of the suit or the same is sought to add to include a new ground especially when the said ground has been created during the pendency of a suit against the object of law under which suit has been filed. As mentioned above, through Mutation No.3278 sanctioned on 5-6-2004 the land measuring 34-kanals, 6-marlas was purchased without any reference to the construction; pre-emption suit was filed by respondent No.1 on 1-9-2004 with regard to the sold land through said Mutation; the petitioner filed written statement on 13-10-2004 without any reference to the purchase of superstructure or construction raised thereon. Admittedly, during the pendency of the suit petitioner purchased the structure and construction on the land, if any, through agreement, dated 31-1-2005 fully knowing that his earlier sale was already subject to right of pre-emption through the suit filed by respondent No. I. The narration of abovementioned facts lead to the conclusion that alleged purchase of construction, etc. through agreement, dated 31-1-2005 despite knowledge about the pendency of the pre-emption suit by the petitioner, was nothing but a mala fide attempt on the part of the petitioner to additionally burden respondent No.1/pre emptor and neither under provision of law nor by any stretch of imagination the alleged purchase of construction over the suit-land on 13-1-2005 can be allowed to be made a part of the original sale subject c of a pre-emption suit. The only concession which can be extended to the vendee after the original sale is to claim compensation with regard to the improvement effected by him in the property he has purchased that too only in terms of section 22 of the Punjab Pre-emption Act, 1991 before Talb-e-Ishhad and not thereafter. In the present case according to the plaint Talb-e-Ishhad was made on 4-8-2004, whereas the alleged purchase of construction, etc. took place vide agreement, dated 31-1-2005 i.e. more than seven months after the original sale and five months of making of Talb-e-Ishahad which even otherwise, cannot be allowed.
5. The upshot of above discussion is that the learned Additional District Judge through the impugned order rightly and lawfully set at naught the error committed by the learned trial Court while allowing amendment in the written statement and learned counsel for the petitioner has failed to satisfy the Court that the impugned order of learned Additional District Judge suffers from any jurisdictional defect. Resultantly, this writ petition has got no force and the same is dismissed in limine.
S.B.M./M-323/L Petition dismissed.