AJAY KUMAR Vs. KISHORI LAL AND OTHERS

JUDGEMENT

(1.) The petitioner sought to pre -empt the sale made in favour of 7 vendees. On 8th October, 1982 one written statement was filed by three of the vendees without taking an objection that any of the vendees is left out from the array of the defendants, and, therefore, the suit is bad either for partial pre -emption or for not impleading all necessary parties. On 28th October, 1982 a separate written statement was filled by three more vendees. In para (h) of the additional pleas it was pleaded that Bhim Singh son of Gopal is also one of the vendees, who is necessary party to the suit and he has not been made a party and as such the suit is bad for non -joinder of parties. The case was adjourned to 2nd December, 1982, for replication, issues and statements of the parties. On 2nd December, 1982, the plaintiff petitioner filed an application for amendment of the plaint to correct the name of defendant No. 6, whose name was stated to be Chiman Singh son of Gopal son of Devi Sahai to be read as Bhim Singh son of Gopal son of Devi Sahai as the name stated in the plaint was typed due to inadvertence. This application was opposed by the vendees and they pleaded that the time for filing of the suit on the date of the application of amendment to pre -empt the entire sale had run out and, therefore, valuable right had accrued to the vendees and the application not being bona -fide should be dismissed. The trial Court by order dated 31st March, 1983 came to the conclusion that the mistake was not bona -fide in as much as the name of Bhim Singh one of the vendees had clearly been mentioned in the copy of the sale deed obtained by the pre -emptor and, therefore, such an omission cannot be held to be inadvertent nor due to some bona -fide mistake. Since the time for filing a pre -emption suit by the time, the application for amendment of the plaint was filed had run out, that application was disallowed. This is plaintiff's revision against the aforesaid order.

(2.) After hearing the learned counsel for the parties, I am of the view that this revision deserves to be allowed. It is true that in the certified copy of the sale deed which was obtained by the pre -emptor to pre -empt the sale the name of Bhim Singh as one of the vendees is correctly mentioned. The total number of vendees is 7. The suit for pre -emption was filed against all the seven vendees. The plaint typed in Hindi mentions the name of one of the vendees as Chiman Singh son of Gopal son of Devi Sahai. Admittedly, there is no such person either in the list of vendees or in the village The father and grand father's name are correctly mentioned. On these facts, the only inference that can be drawn is that it was a typographical mistake which is in the nature of a clerical mistake and should have been allowed to be corrected. This view is supported by the judgment reported in Sodhi Singh v/s. Basanti Singh : (1962)64 P.L.R. 633, Deep Chand v/s. Bahadur Chand, (1968) 70 P.L.R. 416, Banta Singh v/s. Mehar Singh, 1969 Cur. L.J. 913 and Deedar Singh v/s. Dalbir Singh, 1970 Cur. L.J. 143.

(3.) The learned counsel for the vendees vehemently argued that even if the name of Bhim Singh vendee was wrongly typed as Chiman Singh, due to typographical or clerical mistake, no indulgence should be shown to the petitioner on the peculiar facts of this case because the mistake was pointed out on 28th October, 1982 when the written statement was filed and yet on the same day or on the following day the mistake was not corrected. It shows that they have not acted with due care and attention in rectifying the mistake. In this behalf reliance is placed on recent judgment of the Highest Court in Munshi Ram v/s. Narsi Ram, A.I.R. 1983 S.C. 27. In fact the petitioner's counsel also relied on this judgment. It is true that in the case before the Supreme Court, application for including the name of the left out out vendee was filed on the following day and on the peculiar facts of that case it was held that the filing of such an application was bona -fide and the pre -emptor acted with due diligence and the permission to amend the plaint was granted even after the expiry of the limitation. However, no rule was laid down in the aforesaid judgment that if application is filed beyond the following day it has necessarily to be dismissed. It will depend on facts and circumstances of each case whether the plaintiff acted with due diligence or not