HAJI HABIB LONE Vs. PT JIA LAL

JUDGEMENT

(1.) THIS is a civil revision. It arises in the following circumstances: By virtue of a registered sale deed dated 24 -7 -1967 one, Shamboo Nath, sold land measuring 4 kanals 10 marlas covered by survey Nos. 70/Min (1 kanal 13 marlas), 560 (13 marlas) under khewat No. 21 and by survey Nos. 57/Min (3 marlas), 109/min (4 marlas), 256/Min (1 kanal 6 marlas), 299/Min (11 marlas) under khewat No. 23 situated in village Nehama, Tehsil Handwara to Haji Habib Lone in consideration of a sum of Rs. 4,000/ -, On the basis of this sale deed the vendee, Haji Habib Lone, filed a suit for possession on 5 -9 -1967 against Jialal and others. Soon after, on 11 -9 -1967, Jai Lal and Mohan Lal (hereinafter called the plaintiffs) brought a suit against Haji Habib Lone (hereinafter called the â„¢defendantâ„¢) for declaration that they were the exclusive owners of the land covered by survey Nos. 70/Min, 560 under khewat No. 21 and by survey Nos. 57/Min, 256/Min under khewat No. 23 and that, to this extent, the sale deed was null and void and of no effect and, in the alternative, for possession on the basis of right of prior purchase alongwith land covered by survey No. 299/Min under khewat No. 23. The suit did not include survey No. 109/Min which too was the subject of sale. The two suits were consolidated and tried together but none of the parties detected the mistake till the stage reached for final arguments. At that stage the defendant made an application for permission to raise an additional plea based on partial pre -emtion which alerted the plaintiffs, who brought an application for amendment of the plaint soon after and sought the inclusion of survey No. 109/Min in the suit. The trial court allowed both the applications, the first by its order dated 9 -9 -1972 and the second by its order dated 27 -2 -1973. Aggrieved by the latter order the defendant has come in revision to this court.

(2.) THE application for amendment of the plaint proceeded on the ground that the copy of the sale deed supplied to toe plaintiffs and annexed by them with the plaint did not include Survey No. 109 which accounted for its exclusion from the suit adding that the plaintiffs could discover the mistake only after the defendant submitted his application for permission to raise the additional plea of partial pre -emption. The defendant resisted the application mainly on the ground that the amendment would have the effect of depriving him of the valuable right which had accrued to him by lapse of time. The trial court allowed the application holding that the mistake was bonafide, having resulted from the defect in the copy of sale deed which neither party could detect till the end. As rightly observed by the trial court the law is well settled that an amendment, which has the effect of depriving the defendant of a right accrued to him by lapse of time, cannot be allowed save in exceptional circumstances. It is not possible to place such circumstances in a strait -jacket. Each case must be governed on its own facts. Broadly speaking, where the amendment does not alter the nature of the suit or the claim and there is no reason to suspect that the plaintiff has not acted in good faith, it can be allowed even if the period of limitation for the suit has expired, (see AIR 1921 P.C. 50; AIR 1957 S.C. 357 and AIR 1957 S.C. 363) Admittedly the proposed amendment does not alter the nature of the suit or the claim in the present case. Mr. Karim, however contends that the plaintiffs are guilty of negligence which disentitles them to the relief sought by them. I am not prepared to agree. The suit of the plaintiffs was based on the copy of the sale deed furnished to them by the copying department of the court. Undisputedly the copy does not include survey No. 109. It is difficult for anybody to suspect that the certified copy is not the true and exact copy of the original. If, therefore, the plaintiffs have not cared to verify the details by reference to the plaint in the cross suit or by reference to the original sale deed, they cannot be held to be guilty of negligence which, Mr. Karim urged, they should be charged with. He conveniently forgets that his side too could not detect the mistake till the stage reached for the final arguments, although that side was the originator of both the sale deed and the cross suit and had better chances of detecting the mistake earlier. Both parties assumed and not without reason that the description of the land as given in the plaint was correct. No sooner the mistake was noticed, the plaintiff moved the court for proposed amendment. In these circumstances it is difficult to hold that the plaintiffs were guilty of negligence. Mr. Karim relied on the judgments of this court in Gh. Mohâ„¢d Kenu Vs. Kh. Abdul Ahad and ors. (Civil revision No. 91 of 1971, decided on 25 -8 -1972) and Yasin Shah Vs. Ibrahim Shah and ors. (Civil revision No. 110 of 1972, decided on 7th June, 1973). Both these judgments do not help the petitioner in the present case and are distinguishable. In the first case the plaintiff filed a suit for possession based on right of pre -emption. The land covered by the sale was 1 kanal and 2 marlas and 30 sq. ft. He sued for an area of 1 kanal and 2 marlas only. Later on after the expiry of the period of limitation, he applied for amendment. The trial court allowed the amendment holding that the omission had its roots in the certified copy of the sale deed furnished to the plaintiff. In revision the order was set aside by this court inter alia on the ground that the Ëœmeasurement of the area sold was mentioned in the deed at four places viz., in the heading, at two places in the middle and also towards the end of the deed." This is not the position in the instant case. The copy of the sale deed contains the description of the land at one place only and there too not correctly. This care has therefore no application to the present case. In the second case Ëœthe plaintiffs filed a suit for declaration of their title over survey Nos. 1247, 1296 and 1538 measuring 9 kanals and 16 marlas. The suit was filed on 26 -8 -1967. About a month after on 27 -9 -1967 the plaintiffs applied for amendment of the plaint by introducing a claim in the alternative based on pre -emption. The application was granted. Subsequently on 10 -12 -1970 the plaintiffs applied for further amendment. The proposed amendment was designed to include survey Nos. 1081 and 1324 in the suit. These survey Nos. formed subject matter of the sale alongwith three numbers originally sued for, but the plaintiffs had not sought their inclusion in the suit when they applied for amendment |or the first time with a view to introducing the alternative claim based on pre -emption, although alongwith the application they had filed a copy of the sale deed as well. In this context this court held that the plaintiffs were guilty of negligence and refused the amendment. The facts of this case are clearly distinguishable from the present case.

(3.) IN these circumstances I see no reason to interfere with the order made by the trial court which is upheld. The revision petition is dismissed without any order as to costs.