Ami Lal and others vs Indraj and another

S.P. Goyal, J.—This revision has arisen out of a suit filed by respondent No. 1 for possession of the land in dispute by way of preemption of the sale effected by respondent No. 2 in favour of the petitioners. Initially, petioners Nos. 1 to 8 were only impleaded as vendeedefendants. In the written statement filed by petitioners Nos. 1 and 6, a preliminary objection was taken that the suit was bad for non joinder of necessary parties, but the plaintiff paid no heed to this objection. Petitioners Nos. 7 and 8 later on filed a separate written statement in which they specifically pleaded that two of the vendees, Amar Singh and Kishan Lal, having been not impleaded the suit was liable to be dismissed. It was thereafter that the plaintiff (respondent No. 1) moved an application for adding the said vendees as defendants, which was allowed by the trial Court. Aggrieved thereby, the vendees have come up in this revision.

The learned counsel for the petitioners has assailed the impugned the order on the ground that nonimpleading of the two of the vendees being not the result of a bona fide mistake they could no be allowed to be added as party after the limitation for the filing of the suit had expired. Reliance for this proposition has been placed on a Division Bench decision of this Court in Bhawani Das v. Kaushalya Rani, 1981 Revenue Law Reporter 203, and a Single Bench decision in Gela Ram and others v. Kailash Nath and others, (1976) 78 Punjab Law Reporter 330.

The trial Court allowed the amendment holding the omission to be bona fide because the certified copy of the sale supplied by the SubRegistrar''s office to the plaintiff contained the names of only eight persons as vendees. If there were no other attending circumstances showing lack of due care and caution on the part of the plaintiff the ratio of the trial Court would have been unassailable. On the contrary, the plaintiff, if he had taken due care and caution, would have come to know that ten persons had purchased the land. Partition proceedings had been instituted by the vendees on the basis of the impugned sale on December 3, 1982, i.e. after a month and a half of the filing of the preemption suit. In the petition for partition, ten persons were shown as vendees. The preemptor appeared and contested those proceedings. If he would have been a little careful, he would have immediately come to know from the application made to the revenue officer that the land had been purchased by ten persons. Under somewhat similar circumstances in Bhawani Das''s case (supra), it was held the mistake committed was not bona fide and the addition of the party sought for was declined. The learned counsel for the respondent, however, relying on Debabrata Bhowmick v. Smt. Nani Bala Some, A.I.R. 1978 Calcutta 482, and the two Supreme Court decisions in Vinet Kumar v. Mangal Sain Wadhera, A.I.R. 1985 Supreme Court 817, and Maitreyee Banerjee v. Prabir Kumar Mukherjee, A.I.R. 1982 Supreme Court 17, contended that the amendment in a preemption case can be allowed even if the limitation for filing a fresh suit may have expired by then. The two Supreme Court decisions have absolutely no bearing on the present case. In Debabrata Bhownick''s case (supra) a new ground of preemption was allowed to be introduced by the Calcutta High Court even after the limitation for filing the suit had expired on the ground that it does not amount to the pleading of a new case or the introduction of a new cause of action. View of this Court has consistently been to the contrary. It is, therefore, not possible for me to follow Calcutta view. Otherwise also, with utmost respect to the learned Judges, I am unable to subscribe to the view that by pleading a new ground of preemption, no new case is sought to be introduced. The case of action is not constituted of the factum of sale alone and, rather, it embraces in its ambit all the bundle of facts which are necessary to be proved to sustain the claim of the plaintiff as held by the Privy Council in Mohammed Khalil Khan and others v. Mahbub Ali Mian and others, A.I.R. (36) 1949 Privy Council 78. The facts constituting the right of pre emption, therefore, form essential part of the cause of action and the introduction of a new ground of preemption would necessarily mean the introduction of a new case and a cause of action. I, therefore, regret my inability to subscribe to the proposition of law enunciated in Debabrata Bhowmick''s case (supra).

It was then contended by the learned counsel for the respondent that even if the order of the trial Court may be erroneous in law, it would not be open to this Court to interfere with the same in the exercise of its revisional jurisdiction. There is no dispute with the proposition of law enunciated by the learned counsel, but in the present case the trial Court completely failed to take into consideration the evidence provided by the partition proceedings even though the same was specifically relied upon by the vendees. Not only that, the trial Court held the mistake to be bona fide on the ground that there was no motive for the plaintiff not to join some of the vendees. This was a wholly irrelevant consideration. To prove that the omission was bona fide, it has to be shown, that the it occurred in spite of due care and caution. The trial Court, thus, failed to appreciate the principles laid down in Bhawani Das''s case (supra) and acted illegally in the exercise of its jurisdiction in arriving at a wholly untenable conclusion.

For the reasons recorded above, this revision is allowed and the impugned order reversed. No costs.

Revision allowed.