Deep Chand vs Bahadur Chand

P.C. Pandit, J.—On 18th of May, 1965, Krishan Dass and others sold two-third share of 238 Kanals 13 Marias, namely, 159 kanals and 2 marlas of agricultural land to Bahadur Chand minor son of Faqir Chand. On 12th of May, 1966, out of the land sold, Deep Chand brought a suit for possession by pre-emption of 74 kanals, that is two-third share of 111 kanals, on the ground that he was a tenant of the said land and thus had a superior right than the vendee. It was stated in the plaint that his right of pre-emption extended only to 74 kanals and he was not giving up his right of pre-emption to any part of the land sold, regarding which he had such a right. In the plaint the rectangle Nos. and the killa Nos. of the land together with their areas, for which the suit was being brought, were also mentioned. The land was described thus:

Rectangle No. 208 (Killa Nos. 19 (8K-0M) 20/2(4K 13M) 21(8K-0M 22(8K-0M; and 23(8K-0M).

Rectangle No. 233 (Killa Nos. 1(7K-7M) 2(8K-0M) 3(8K-0M) 4(8K-0M) 7(8K 0M) 14(8K-0M) l5(8K-0M) 16(8K-0M) 17(7K-7M) 18/1 (2K-13M).

By a clerical mistake the areas of Rectangle No. 233, Killa Nos. 1 and 17 bad been wrongly written as 7 Kanals and 7 Marias each instead of 7 Kanals and 17 Marlas each. The total area of the land was, however, correctly given as 111 Kanals. The total area would not work out as 111 Kanals, if the areas of the above Nos. was taken as 7 Kanals and 7 Marlas each. It would be 111 Kanals, if the areas of both those Nos. were taken as 7 Kanals and 17 Marlas each. In order to remove this clerical mistake, an application for amendment of the plaint in that respect was made on 4th of April, 1967. This application was opposed by the vendee on the.ground that the plaintiff''s suit was for partial pre-emption of the land sold and was, therefore, liable to be dismissed on that ground. Permission of the said amendment, after the period of limitation for filing the suit for pre-emption, would take away from him a very valuable light, which had accrued to him. The plaintiff should not be allowed to sue for pre-emption for the land for which he had not originally filed the said suit. It was also said that in the Jamabandi papers and the sale deed, the areas of the Killa Nos. had been correctly mentioned and the plaintiff had no reason to write incorrect areas of these Nos. in the plaint. The suit, as it originally stood, was for partial pre-emption and was liable to be dismissed on that ground. The trial Judge by his order dated 6th May, 1967 agreed with the contentions of the vendee and rejected the plaintiff''s prayer for the amendment of his plaint. Reliance was placed by him on an un-reported decision of Falshaw, C.J. in Civil Revision No. 593 of 1961, Shrimati Kako Bai v. Pehlad C.R. 593 of 1961, decided on 14th of December, 1962. Against this order, the present revision petition has been filed by the plaintiff.

From what has been stated above, it will be apparent that the land sold was 159 Kanals and 2 Marlas and the plaintiff had filed a suit for possession by pre-emption of 74 Kanals, out of the said land, because he was a tenant of that land and his right of pre-emption extended to that part only. He could not sue for pre-emption for the remaining land. He had, however, definitely stated in the plaint that he was not giving up his right to any part of the land to which his right of pre-emption extended. The total area of the land for which the suit was being filed was clearly mentioned. The Rectangle Nos. and the Killa Nos. had also been stated in the plaint. It so happened that, by a clerical error, the areas of two Killa Nos. had been wrongly mentioned in the plaint. With the incorrect areas, the total would come only to 110 Kanals and if the correction sought for by the plaintiff was made the total area would be 111 Kanals as was mentioned in the plaint. It was, therefore, to remove this clerical error that the amendment was sought for by the plaintiff. No legal right had vested in the vendee by the misdescription of the area of any particular Killa No. in the plaint, when the total area had been rightly shown therein. According to the plaintiff, his right of pre-emption only extended to 74 Kanals out of the land sold. If, later on the vendee succeeded in showing that he was a tenant of some more land, then the question of the present suit being for partial pre-emption might arise. But, so far as the present application for amendment is concerned, there does not seems to be any legal ground as to why it should be dismissed, when only a clerical error was being sought to be corrected and which mistake had not in any way clothed the vendee with any legal rights. The un-reported decision relied upon by the trial Judge was clearly distinguishable. There the plaintiff filed a suit for possession by pre emption of 70 Kanals of land only out of 82 Kanals which had been sold. He had based his right on the ground that he was a tenant of the said land. Later on, however, it transpired that the area under this tenancy was 82 Kanals and he, consequently, applied for the amendment of his plaint and to substitute 82 Kanals in place of 70 Kanals. That prayer was, however, disallowed in the present case, however, the suit had been instituted regarding 74 kanals that is two-third of 111 kanals. The mistake that was sought to be corrected was only with regard to the areas of Nos. 233/1 and 233/12, which bad been incorrectly mentioned in the plaint by a. clerical error. The amendment sought was for removing that defect. Such an amendment should have been allowed by the Court below. The view that I have taken is supported by another un-reported decision of Kaushal J. in Second Appeal from Order No. 58 of 1965, Bir Singh v. Fateh Singh and another S.A.O. 58 of 1965 decided on 23rd August, 1966.

In view of what I have said above, I will accept this petition, set aside the order dated 6th of May, 1967 passed by the Court below and allow the application under order 6 Rule 17, Civil Procedure Code, filed by the plaintiff for the amendment of his plaint. In the circumstances of the case, however, there will be no order as to costs.