BUTA SINGH Vs. GURMUKH SINGH

JUDGEMENT

(1.) This petition is directed against the order of the Subordinate Judge, Narwana, dated December 29, 1978 whereby he dismissed the application under Order 6 rule 17 of the Code of Civil Procedure for effecting an amendment of the plaint by adding to paragraph 1 of the plaint and in its prayer clause, the following :-

(2.) The application arises from a pre-emption suit in which the plaintiff has sought to pre-empt the sale of 48 kanals of land which was sold by registered sale deed executed on June 16, 1977. The sale transaction in question included the land, measuring 48 kanals and 1/3rd share in the tubewell and the rights in canal water. The plaintiff-petitioner in the plaint claimed pre-emption of 48 kanals of land and deposited 1/5th pre-emption amount. The vendee-defendants raised an objection that the suit was bad for partial pre-emption. After that objection, the application in question was moved which was dismissed on the ground that since the plaintiff-pre-emptor omitted to pre-empt the sale of 1/3rd share in the tubewell water and rights in canal water, so it was a suit for partial pre-emption and liable to be dismissed. As a result thereof, a right had accrued to the defendants which could not be allowed to be taken away by permitting the plaintiff to remove the lacuna after the period of limitation for filing the suit had expired.

(3.) Shri Agnihotri, learned counsel for the petitioner has argued on the strength of a decision of this Court, Bhagwan Singh and others V. Kashmir Singh, 1971 PunLJ 222 that what the Court has to see is the intention of the party whether a party actually sought to pre-empt the entire sale or only a part of sold property. If it is found that the party actually sought to pre-empt the entire sale and not merely part of the property sold then the plaintiff cannot be denied to correct the inadvertent omission even after the period of limitation for filing the suit had expired.