2022 C L C 1048
[Balochistan]
Before Muhammad Ejaz Swatiand Zaheer- ud-Din Kakar, JJ
ABDUL RAZIQ ----Petitioner
Versus
MUHAMMAD RAFIQ and others ----Respondents
C.P. No.287 of 2020, decided on 14th September, 2021.
(a) Civil Procedure Code (V of 1908) ---
----S.153--- Pre-emption ---Talb -i-Muwathibat ---Date, time and place, mentioning of ---
Application of petitioner/pre -emptor was allowed by Trial Court for correction of mistake ---
Petitioner prayed that in plaint he had inadvertently mentioned "AM", instead of "PM" due to
accidental slip/omission ---District Court accepted (ex -parte) revision petition of the
respondent/defendant ---Petitioner's application for setting aside ex parte order was
dismissed ---Petitioner contended that correction would not cause prejudice to respondents;
that contents of plaint supported petitioner's version regarding error being accidental; that Trial Court's order was not a "case decided" ---Held, that if an interim order was a final order
relating to a part of proceedings/issue and having effect on merits of the case, such an order
could be corrected in revisional jurisdiction ---Court had general power to amend any
defect/error in any proceedings in a suit at any time to determine real question/issue ---
Correction of error/mistake would depend on nature of mistake/error as per the facts of each case---Mentioning of particulars as to date, time and place of making talb of pre -emption was
essential for substantiating such right and failure would be fatal and pre -emptor would face
the consequence of omission--- Such omission if allowed to be corrected/amended it would
change the nature/complexion of the suit ---Petitioner did not choose to seek correction until
the said facts was not specifically denied by the respondents in the written statements, and that too for correction of time as "12 PM" instead of "12:30 AM" with an object to withdraw the admission made in the plaint and wipe out the defence taken by the respondent, hence not with bona fide intention ---Constitutional petition was dismissed accordingly.
Rana Muhammad Tufail v. Munir Ahmed and others PLD 2001 SC 13; Muhammad
Ismail v. Muhammad Yousaf 2012 SCMR 92; Mst. RoohAfza v. Aurangzeb and others 2015 SCMR 92; Ghulam Yasin and others v. Ajab Gul 2013 SCMR 23; Abaid Ullah Malik v. Additional District Judge Minawali and others PLD 2013 SC 239 and Mian Pir Muhammad and others v. Faqir Muhammad and others through L.Rs and others PLD 2007 SC 302 rel.
Muhammad Anwar and 8 others v. Muhammad Ashraf PLD 2001 SC 209 and Ghulam
Nabi v. Sardar Nazir Ahmed 1985 SCMR 824 distinguished.
(b) Civil Procedure Code (V of 1908) ---
----S.115--- Revisional jurisdiction---Term "case decided" ---Scope ---Expression "case
decided" was not confined to an entire suit, but included an issue/part of a suit/proceedings
where an interlocutory order, which dealt with substantial question in controversy between the parties and effect their right would come within the ambit of "case decided".
Messrs National Security Insurance Company Limited and others v. Messrs Hoechst
Pakistan Limited and others 1992 SCMR 718 and Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board and others 1998 SCMR 1798 rel.
Gul Hassan Tareen for Petitioner.
Wasil Jan Bazai for Respondents.
Date of hearing: 1st September, 2021.
JUDGMENT
MUHAMMAD EJAZ SWATI, J .----The petitioner (plaintiff) filed a suit for
possession through pre -emption being owner of adjacent property, against the respondents
and at paragraph Nos.3 and 8 of the plaint has categorically pleaded to have learnt about the sale, and made the first talb as under,
"3. That the plaintiff had no knowledge of the sale of the suit property. On 19- 06-
2019, plaintiff went to the tehsil office in order to ascertain the valuation of his
properties for the purpose of declaring them under the Amnesty Scheme before the expiration of the target date i.e. 30- 06-2019, provided under such scheme. Plaintiff
asked the patwari regarding the current status of the suit property who disclosed that it has been sold out to defendants Nos.1 to 6. Plaintiff inspected mutation entries Nos. 691 and 690. It was 12:26 AM. Plaintiff promptly observed the 1st demand and declared his intention to assert the right of pre -emption on receiving such
information."
2. The respondents Nos.1 to 6 (the purchasers) have filed written statements on 9- 7-2019
and specifically denied the above assertion particularly related to time i.e. 12: 26 A.M as under,
"the plaintiff has never made any Talbs on the property in dispute, it is important to mention here that 12.26 Am at night the patwari cannot be present in tehsil office, which makes the entire case of the plaintiff and Talb highly doubtful."
3. After filing written statement, the petitioner filed an application under section 153
Civil Procedure Code (C.P.C.) on 12- 7-2019 contending therein that in paragraph Nos.3 and
8 of the suit, plaintiff has mentioned AM inadvertently, instead of PM due to accidental slip and omission and prayed that he may be allowed to correct the same as PM instead of AM. The respondents Nos.1 to 6 contested the application by way of filing rejoinder to the same.
The learned Senior Civil Judge -I Quetta, vide order dated 6- 9-2019, allowed the application.
On civil revision petition filed by the respondents Nos.1 to 6, the learned Additional District
Judge -IV/Model Civil Court Quetta, vide judgment dated 30- 11-2019 (impugned judgment),
accepted civil revision by setting aside the order, passed by the trial court. In the aforesaid proceedings, the petitioner was proceeded against ex- part, therefore, on the application of the
petitioner, under Order IX, Rule 13, C.P.C., read with Sections 151 and 141, C.P.C., the
learned Additional District Judge -IV Quetta also provided opportunity of hearing to the
petitioner and vide judgment dated 6- 3-2020 (impugned judgment), dismissed the
application, hence this petition.
4. The learned counsel for the petitioner contended that application under section 153,
C.P.C. was only for correction of clerical error, which occurred accidently in paragraph
Nos.3 and 8 of the plaint with regard to PM instead of AM, no prejudice would cause to the respondents. That paragraph No.4 of the plaint also support version of the petitioner, with regard to error, which was accidental. That the application was supported by an affidavit and respondents Nos.1 to 7 have not contested such application by counter affidavit, but the learned revisional court did not consider this aspect of the matter. That the order passed by the trial court, with regard to application of the petitioner was not come within the ambit of
the "case decided", therefore, the revisional court had no jurisdiction to entertain revision
under Section 115 of C.P.C. That impugned judgment reflects material illegalities and irregularities, on the basis, whereof the same cannot be sustained. He placed reliance on cases reported in PLD 2001 SC 209, 1985 SCMR 825 and 2007 MLD 1110.
5. The learned counsel for the respondents contended that date and time is always
considered essence of the pre -emption suit and such amendment would change the entire
nature of the suit, which is not permissible under the law. That the respondents have taken the proposed amendment as defense in written statement and petitioner intends to wipeout the same in the guise of amendment. That prior to purposed amendment the petitioner has also sought amendment in the pleading and he was well aware about his pleadings. That application for proposed amendment was filed after filing written statement by the respondents, wherein it was stated that time of talb i.e. 12:30 AM before patwari in tehsil was obviously illogical, therefore, the proposed amendment was not with bona fide intention. That impugned order is based on proper appreciation of law and circumstances of the instant case and same is liable to be sustained. The learned counsel placed reliance on cases reported in 2013 SCMR 23, PLD 2013 SC 239 and 2018 YLR 49.
6. We have heard the learned counsel for the parties and perused the record. The
contention of the learned counsel for the petitioner that order passed by the trial court was not fall within the ambit of Section 115, C.P.C. i.e. "case decided" and civil revision filed by the respondents was not competent, is not tenable. The expression "case" has been used instead of term suit, judgment or decree, thus the "case decided" within the meaning of section 115, C.P.C. is not confined to an entire suit, but includes an issue or a part of a suit or proceedings where an interlocutory order, which deals with substantial question in controversy between the parties and effect their right comes within the ambit of "case decided" Reliance is placed on case reported in 1992 SCMR 718, 1998 SCMR 1798, 2006 SCMR 21, 2016 SCMR 177.
In case titled Messrs National Security Insurance Company Limited and others v.
Messrs Hoechst Pakistan Limited and others reported in 1992 SCMR 718, the honorable
Supreme Court observed as under,
"The expression "case decided" does not necessarily mean the decision of the entire suit. It may relate to a decision of an interlocutory matter requiring a judicial mind. The old view that an interlocutory matter did not fall within the expression "case decided", was abandoned by the High Court in Bibi Gur Devi's case (AIR 1943 Lah. 65), and the case cited by the learned counsel for the agents is no longer good law."
In case titled Haji Sakhi Dost Jan v. Pakistan Narcotics Control Board and others
(1998 SCMR 1798), the honorable Supreme Court observed as under,
"14. It is well- settled that the term, "case decided" can be construed as a decision
given in respect of any state of facts after judiciary considering the same, which need not necessarily dispose of the whole matter in a cause pending before a Court subordinate to the High Court. Reference may be made to Umar Dad Khan v. Tila Muhammad Khan (PLD 1970 SC 288)."
From the above dictum of the Honorable Supreme Court of Pakistan, the expression
"case decided" is not necessary confined to the final order rather it may, in peculiar facts and circumstances of the case, relating to an interlocutory order passed at any stage of the proceedings, including an interim order attracting judicial determination. It may also be seen that an order passed in an improper exercise of jurisdiction enumerated in second part of section 115, C.P.C. Besides, if an interim order is a final order relating to a part of proceedings or issue and having affect on merit of the case, such an order can be corrected in the Revisional Jurisdiction.
7. Now adverting to the application filed by the petitioner for proposed
amendment/correction, the civil courts are vested with inherent powers and also general powers to rectify the mistake or error in the pleadings under Section 153, C.P.C. to do justice between the parties; The court has general power to amend any defect or error in any proceedings in a suit, at any time to determine real question or issue. The correction of error or mistake in plaint depends on the nature of mistake or error as per the facts of each case. In case titled Muhammad Anwar and 8 other v. Muhammad Ashraf (PLD 2001 SC 209) relied upon by the petitioner, the name of one of the defendant was inadvertently described wrongly in pre -emption suit, the august apex Court held that "suit has not been instituted against a
wrong person, but a right person whose correct name could not be mentioned due to inadvertent omission". In case titled Ghulam Nabi v. Sardar Nazir Ahmed (1985 SCMR 824) in a pre -emption suit application under Section 153, C.P.C. was allowed to amend the
description of the property, on the ground that it was accidental and clerical omission which had inadvertently crept into the plaint.
8. It is the mandate of law that right of pre -emption of a person extinguished unless such
person makes immediate demand (Talb- e-Mawathibat in the sitting meeting (Majlis) in
which he has came to know of the sale, declaring his intents to exercise the right of pre -
emption which naturally required time, date, place and persons before whom such demand
was made. In case titled Rana Muhammad Tufail v. Munir Ahmed and others (PLD 2001 SC
13) suit of pre -emption was dismissed as there was four hours delay in making the Talb- e-
Muwathibat from the time of receiving the knowledge of sale. In case titled Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911) the Honorable Supreme Court of Pakistan held that time place and witness before whom required talb had been made must be
mentioned in plaint. In case titled Mst. Rooh Afza v. Aurangzeb and others (2015 SCMR 92)
the petitioner after gaining knowledge of sale consulted 15/20 minutes it was held that due to
said consultation he has failed to immediately performed required talb, thus lost right of pre -
emption.
9. Mentioning of particular as to date "time" and place of making required talb of pre -
emption are essential for substantiating such right and failure would be fatal and pre -emptor
would face the consequence of the omission. Such omission if allowed to be corrected/amended it would change the nature/complexion of the suit. In case titled Ghulam Yasin and others v. Ajab Gul (2013 SCMR 23) the Honorable Supreme Court of Pakistan observed as under,
"Quite apart from this since a pre -emption case under the latest dispensation is more
like a criminal case and a pliant in the former is almost like an F.I.R. in the latter, no omission however, fatal it may be can be allowed to be supplied by means of amendment. In case it is done by means of amendment, it would open room for additions, afterthoughts and improvements which would go ad infinitum. Neither the pre-emption nor the criminal case with this modus operandi would admit of an end in
the mundane existence of the parties. We, therefore, have committed no error much less patent on the face of the record by declining the prayer for amendment of plaint and dismissing the appeal of the petitioner."
10. In case titled Abaid Ullah Malik v. Additional District Judge, Mianwali and others
(PLD 2013 SC 239), the Honorable Supreme Court of Pakistan observed as under,
"The petitioner in his plaint has, in unequivocal and unambiguous terms, mentioned time as 10 -00 A.M., whereafter, written statement was filed by the respondents, issues
were framed and parties hereto put to trial, till then the petitioner felt no expediency for the amendment of the same of the plaint, so as to change the time given therein. Petitioner examined his witnesses and all the three P.Ws. including himself, in their examination -in-chief, which statements were recorded on 17 -4-2007, deposed the
time of making Talb- e-Muwathibat, as 11- 00 am. This undoubtedly was a clear
contradiction to the time given in the plaint thus, all of a sudden, it revealed to the petitioner that the time mentioned in the plaint is incorrect and should be corrected, hence; he moved the instant application for amendment on 5- 5-2007. From the above
facts, it is evident that the application for amendment was moved with an object to overcome the noted contradictions, and wriggle out of the effect of Mian Pir Muhammad's cast (supra), thus, it can hardly be said that the question for the amendment in the plaint was with an honest intention of the petitioner. Therefore, as the amendment sought was not with bona fide intention."
11. As it has been settled by the Honorable Supreme Court of Pakistan in the case of
Mian Pir Muhammad and others v. Faqir Muhammad and other through L.Rs. and others
(PLD 2007 SC 302) that mentioning of particular as to date, time and making talb are sin quo
non for a successful pre -emptor action, their failure would always invariably be fatal. Such
omission could not be allowed to be made up when it proved fatal and in consequence thereof a right accrued to the respondents.
12. In the instant case, the petitioner did not choose to seek correction, until the said facts
related to time of making talb -e-muwathibat i.e. at 12:30 AM in Tehsil office was
specifically denied by the respondents in the written statements (filed on 9- 7-2019) being
illogical and make a defense for dismissal of the suit. The petitioner moved the instant application on 12- 7-2019 for correction of time as 12:PM instead of 12:30AM with an object
to withdraw the admission made in the plaint and wipe out the defense taken by the respondent in the written statement, therefore, the amendment/correction sought was not with bona fide intention, thus the impugned judgment warrant no interference by this Court.
In view of above, the Constitutional Petition No.287/2020 is dismissed.
ZH/165/Bal. Petition dismisse
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