YASIN SHAH Vs. IBRAHIM SHAH

JUDGEMENT

(1.) THIS is an application against an order of the Sub -Judge Handwara dated 18 -12 -71 by which he has allowed the amendment prayed for by the plaintiff. The application arises in the following circumstances. The plaintiffs brought the present suit for a declaration on the ground that they were entitled to survey Nos. 1247, 1296 and 1538 measuring 9 kanals and 16 marlas and the defendants had no right or title over these plots. The suit was filed on 26 -8 -1967. After about a month, the plaintiffs filed an application for amending the plaint by introducing a plea in the alternative, namely, to claim the right to pre -empt the plots sold by the defendants 2 and 3 under a sale deed dated 30 -8 -67. The sale deed was not only in respect of plots 1247, 1296 and 1538 but was in respect of plots No. 1081 and 1324 also. The plaintiffs had filed a certified copy of the sale deed along with their amended plaint in respect of their right of pre -emption and claimed pre -emption on the ground that they were tenants of the land. Despite the fact that the plots No. 1081 and 1324 were clearly mentioned in the sale deed, the plaintiffs in their first amended application did not pray for the right of pre -emption with respect to plots No .1081 and 1324. They appeared to have realized their mistake when it was too late in the day and filed another application for amendment on 10 -12 -70 praying that they may also be allowed to pre -empt with respect to plots 1081 and 1324 which were described in the sale deed. The court below, after hearing counsel for the parties, allowed the amendment as it thought that the amendment would not alter the nature of the suit. Hence this revision to this court.

(2.) MR . Chowdhury for the petitioner submitted that the learned Sub -Judge had completely overlooked the fact that a valuable right had accrued to the defendants by virtue of the omission of the plaintiffs to claim pre -emption with regard to plots No. 1081 and 1324 and the said claims had become barred by limitation because the sale deed was executed on 30 -8 -67, and the application for amendment was filed more than three years after this date. Secondly since the sale deed was in respect of all the five plots, the pre -emption was not claimed by the plaintiffs with respect to plots 1081 and. 1324, their right to pre -empt stood defeated as there could be no partial pre -emption. It was to cover up this lacuna that the plaintiffs sought to make the second application. I find myself in complete agreement with the argument advanced by the learned counsel for the petitioner. In the instant case it is difficult to hold that the application of the plaintiffs was even bonafide. The plaintiffs themselves had filed the sale deed as far back as 27 -9 -67 when they filed their first application for amendment of the plaint, and although they were fully aware of the recitals therein and of the specific mention of plots 1081 and 1324, they did not choose to claim preemption with respect to any of these plots. Such a serious error or negligence could not be attributed to a mere oversight or in -advertence as suggested by the counsel for the respondents. Secondly a very valuable right had accrued to the defendant who could defeat the right of pre -emption claimed by the plaintiffs on the ground of limitation as also on the ground of partial pre -emption. It is well -settled that a right of pre -emption is a very weak right and any legal device can defeat this right. If the amendment were allowed then the defendants would be deprived of their valuable right to defeat the claim for pre -emption put forward by the plaintiffs, and this would undoubtedly work very serious injustice to the defendants. This aspect of the matter has been completely overlooked by the learned trial judge. In Civil revision No. 91 of 1971 wherein the facts were almost similar, Jaswant Singh J. set aside the order of the trial court allowing the amendment and observed as follows: - "Although the trial court had a discretion to allow amendment of the pleadings it is now well recognized that the power should not as a rule be exercised when the effect is to take away from the amendment a legal right which had accrued to him by lapse of time. Reference in this connection may be made to the decisions reported in AIR 1921 PC 50, 1933 Bombay 450 and 1952 Punjab 281". XXX X "As the impugned exercise of discretion in favour of the plaintiff has resulted in failure of justice, I allow the revision petition, and set aside the aforesaid order permitting the amendment of the plaint." I find myself in complete agreement with the observations of the learned judge (Supra) which apply on all fours to the facts of the present case. In these circumstances I hold that the learned trial judge committed a serious error of law and acted with material irregularity in the exercise of his discretion in following the amendment which caused serious travesty of justice to the petitioner. The second application for amendment will not affect the pleas taken by the plaintiffs in the original plaint as also the first amended plaint.

(3.) THE application is accordingly allowed, the order of the court below is set aside, and the amendment prayed for by the petitioner is rejected. Parties are directed to appear before the court below on 11 -7173 failing which the trial court shall proceed exparte against the party which does not appear.