Ghulam Rasool Wani vs Gh.Qadir Rathar

This revision is directed against the order dated 12111992 passed by SubJudge (3rd Subordinate Judge Forest Magistrate), Srinagar in the above

titled suit for declaration and preemption, where under learned trial Judge has rejected the application for amendment of the pleadings moved by

the petitioner/plaintiff.

Facts in brief which have given rise to the present petition are that a civil suit for preemption seems to have been filed in the trial court on 841988

which came to be numbered as Civil Suit No: 3 and was exercise of preemptory right visavis land purported to have been sold under survey No.

935 besides other lands and in this suit written statement was filed by the defendants on 2381988.

In the written statement defendants at Para No. 3 have pointed out that:

Para 3 of the plaint is denied. Defendant No. 2 has purchased 14 marlas of land under Survey No. 925 and the same was purchased within the

knowledge of the plaintiff.

Thus the defendants specifically meant that it is not survey No. 935 and infact it is land under survey No. 925 which has been purchased but no

notice of this seems to have been taken by the plaintiff at the relevant time, so much so that even issues came to be framed in the matter on

1121989 which are numbering about 11. Even specific issue No. 11 has been framed in the suit which makes a mention of survey No. 925.

An application for amendment of plaint asking for substitution of the survey No. 925 instead of 935 due to inadvertance and clerical mistake is

being moved in the court below on 1881992. This application has been resisted by the respondents by taking all exceptions, factual and legal and

the matter came up for consideration before the court below which resulted in the passing of impugned order in this revision petition.

It may be noted that apparent substitution of survey No. 925 instead of 935 seems to be a typographical clerical mistake in typing out the survey

No. and due to in advertence, attention of the plaintiff has hot gone to this aspect due to frequent change of lawyers and the fact that suit in fact

mentions of a sale deed purported to have been executed on 13121987, which is not the correct fact. Sale deed on the basis of which,

preemptory rights are being claimed regarding land under transaction is sale deed dated 1321987.

While seeking this amendment of typographical/clerical mistake, the matter has been resisted by the other party by submitting that it is a calculated

game played by the plaintiffs because even at the relevant time of presentation of the suit on 841988 regarding sale deed dated . 1321987, the suit

was barred by limitation. So in order to cover up the limitation, the plaintiffs have deliberately and intentionally shown date of sale deed on the

basis of which, preemption is being claimed as 13121987, only to bring it within time and thereby has tried to mislead the court. The suit even on

the date of presentation was totally barred under the law of limitation which specifically provides only one year's period for exercise of such right of

prior purchase/preemption. So the respondents have claimed that petitioners are not entitled to any amendment.

I have heard learned counsel for the parties and have also minutely gone through the records.

It is an admitted fact that the sale deed on which preemption is being claimed has not been annexed with the plaint, but nevertheless there is no

dispute regarding the fact that the sale deed in question is purported to have been executed on 1321987 and envisages survey No. 925 and not

935, as has been mentioned by the plaintiffs in their plaint. The fact that the suit of the plaintiff has been filed after the prescribed period of limitation

finds its consideration under relevant issue no. 10 which has already been framed in the suit, which reads:

Whether the suit is barred by limitation?

Thus on that count, respondents/defendants need not to worry that a time barred suit is being persued or is being prosecuted or that a time barred

suit, prima facie is being sought to be amended or allowed to proceed to the prejudice of the defendants.

The policy of amendment as the courts have laid and appreciated is that amendments are being allowed to avoid multiplicity of litigation/ suits or to

see that the cause which has been pleaded or is being agitated is to be incorporated in the suit so that no subsequent suit on the same cause or

regarding same subject matter is to be filed and thereby resulting in the multiplicity of suits, in order to clinch the matter in controversy completely

and effectively, the amendments being allowed in the initial stage or at the trial. Provisions of Order 6 Rule 17 of Civil P.C. are being interpretted

liberally by the courts. Allowing of amendments has been made a rule and rejection as an exception. The very wording of the relevant provisions of

law do read:

The court may at any stage of the proceedings allow, either party to alter or amend his pleadings in such a matter and on such terms as may be

just, and all amendments shall be made as may be necessary for the purpose of determining the real/controversy between the parties.

So keeping this cordinal principle of law under consideration, I do find that in between the parties, sale deed alleged to have been made on

1321987 was pertaining to survey No; 925, wherein certain marlas of land seem to have been sold and it is out of this very survey No: that the

plaintiff claims that they are having right of preemption and exercise the said right for the reasons to be proved by them on the grounds pleaded and

to be established by them at the relevant time in evidence at the trial on the basis of their right of prior purchase/preemtion. In case inadvertently; as

pleaded by the petitioner, the survey No. has wrongly been mentioned or the date of execution of sale deed has wrongly been mentioned and

plead that it is typographical or clerical error, which cannot be overlooked because of the similarity of the numbers instead of 925, 935 has been

written and instead of 321987 date of 3121987 has been written, but due to inadvertence of the plaintiff at the relevant time when the pleadings of

the defendants were available and when the written statement was filed by them way back on 2381988, the plaintiff should have been vigilant in

seeing to it as to where is the loopholes/defects which have been pleaded in his plaint or suit. But he without caring for such matters which were

brought to his notice on 2381988 was sleeping even at the time when issues were framed to that effect and had only woken up from deep slumber,

when the application for amendment has been moved on 1851992. The rejection of such amendment application as pleaded by counsel for the

petitioner before me shows that jurisdiction vested in the court of SubJudge for allowing such amendment has not been properly exercised and

rejection as such has resulted in the failure of jurisdiction vested in it and comes within the purview of clause (b) SubSection (i) of Section 115 of

Civil P.C. and as such deserves enforcement by the revisional court,

On the other hand, learned counsel for the respondents had argued at vehemence that amendments which are being allowed after the expiry of the

limitations have been discouraged and are not being allowed, but it may be noted that the amendment which has been sought dates back to the

time when suit has been instituted and in the present suit, I do find that prima facie even on that date i.e. 841988, the suit is prima facie barred by

limitation visavis sale deed of 1321987 as because there is period of only one year for filing a suit for preemption from the date of

execution/registration of the sale deed and taking over of possession. So the plea that the suit is barred by limitation, the defendants are not

debarred To plead prove the same by allowing the present amendment. They are still within their rights to plead and prove that the suit of the

plaintiff is hit by law of limitation and it will not cause any prejudice if such amendment is allowed.

Secondly the citation made at the bar by Mr. Haqani has been considered by me. The head notes of the citation AIR 1967 SC 366 are misleading

The findings arrived at by their lordships in the judgment as I see are not .helpful as because amendment which was allowed by the High Court was

being challenged in the Supreme Court. The apex court after appreciating the relevant facts of the matter and also seeing the reasoning given by the

High Court that in order to have substantial justice in the matter, the High Court allowed the amendment in the case but was put to challenge in the

Supreme Court. Supreme Court after appreciating the arguments and giving reasons have observed that two tests should be applied in allowing the

amendment; i.e.

Whether the proposed amendment does not introduce a new case for which defendant is to be taken by surprise and Secondly whether the

amendment is barred by limitation and cannot compensated the person of the other party to deprive of such right and cannot be compensated by

depriving him of such right?

After putting these two tests in the case referred to by Mr. Haqani cited above, their lordships have observed and allowed the amendment.

Keeping those very principles under consideration, in the present case also, I do find that the plaintiff has filed a suit for preemption regarding

survey No. 925 and which he claims that inadvertently he has mentioned 935 in his plaint and secondly that he has filed the suit for premption

based on the sale deed pertaining to this very survey No. but inadvertently and due to clerical and typographical mistake mentioned the date of sale

deed as 13121987 when infact it is 1321987. Therefore, for all practical purposes the defendants know that a suit for preemption has been filed

against them and arise out of sale deed which is the hone of contention between the parties. He has pleaded his case well and he is not to be taken

by surprise in case typographical mistake by change of survey No. in the plaint is allowed as prayed for and the date of sale deed is also allowed

to be changed, as prayed for it may be noted that a specific question was put to learned counsel for the parties as to whether there is any sale deed

on the relevant date i.e. 1321987 which pertains to Khasra No. 935 instead of 925 or in the alternative is there any such sale deed pertaining to

survey No. 935 or 925 dated 13121987, to which reply was 'No'. So only and only sale deed which has been the bone of contention is sale deed

dated 1321987 and it pertains to survey No. 925. It is this very sale deed on the basis of which and it is this very Khasra No. for which

preemptory rights are being claimed. So there is no surprise for the defendants or no new case is being set up which will disentitle the defendants.

Now as regards the second test, the plea of imitation. I have already dealt with that aspect of the matter in the foregoing paras. So at the cost of

repetition, I need not recaptulate the same again. So both the tests applied makes out that the amendment asked for should be allowed. But while

allowing the said prayer, at the same time this fact cannot be lost sight of that the lechargy, inaction and slackness shown by the plaintiff in not

reacting and being vigilant about his pleadings, does make out that exemplary cost should be imposed on him in allowing the proposed amendment.

For the foregoing reasons, the order impugned passed by the trial Judge where under he has disallowed the proposed amendment is quashed and

the application seeking amendment to the extent referred to herein above is allowed subject to payment of costs of Rs. 2000/. The plaintiff shall file

the amended plaint in the trial court within a fortnight after the receipt of the file by the court below. Parties are directed to cause their appearance

before the trial court on 781996.