INAYATULLA Vs. MADARI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for pre-emption. In the plaint the plaintiff alleged that he was a co-sharer and was joint in the property transferred with the vendor and that he claimed pre-emption. He also stated: The plaintiff has a right of pre-emption according to the Act in force.

(2.) He nowhere alleged that the defendants were strangers to the mahal, nor did he in express terms say that he had a preferential right as against the defendants, though this might be implied from the fact that he was suing to pre-empt them. When the written statement was filed, no plea was taken that the plaint did not disclose any cause of action. Later it was noticed that the plaint was silent as regards the exact status of the defendants. The plaintiff then applied to the Court of first instance for an amendment of the plaint in order to make it clear that the defendants were perfect strangers and the plaintiff had a preferential right as against them. The learned Munsif thought that, he had no jurisdiction to grant this application because the provisions, of Order 7, Rule 11 were mandatory and no leave to amend the plaint could under the circumstances be granted. He relied on the case of the Midnapore Zamindrai Co, Ltd. V/s. Secy. of State [1917] 44 Cal. 352.

(3.) He dismissed the application for amendment and rejected the plaint as it disclosed no cause of action. The plaintiff went up in appeal to the District Judge and urged that the plaint did disclose a sufficient cause of action and that in any event the amendment should have been allowed. The learned District Judge is of the same opinion as the first Court and has held that the principle of the Calcutta ruling applied and that the Munsif had no other course open to him but to reject the plaint.