Haji Habib Lone vs Pt.Jia Lal and others

(1) This is a civil revision. It arises in the following circumstances : By virtue of a registered sale deed dated 2471967 one. Shamboo Nath, sold

land measuring 4 kanah 10 marlas covered by survey Nos 70/Min (1 kanal 13 marlas), 560 (13 marlas) under khewat No. 2L and by survey Nos.

57/ Min (3 marlas), 109/min (4 marlas), 256/min (I 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 591967 against Jidlal and others. Soon after, on 1191967, Jia Lal and Mohan Lal (hereinafter called the plaintiffs) brought a suit

against Haji Habib Lone (hereinafter called the 'defendant' 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, to 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 preemption which alerted the plaintiffs, who brought an application for amendment of the

plaint soon after and sought the inclusion of survey No J09/min in the suit. The trial court allowed both the applications, the first by it* order dated

991972 and the second by its order dated 2721973. 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 d0gd supplied to the 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 application1 for permission to raise the additional plea of partial preemption.. 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 bona fide, having resulted from the defect in the copy of the sale

deed which neither party could detect till the end.

(3) 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 td him by lapse of time, cannot be allowed save in exceptional circumstances It is not possible to place such circumstances in a

straitjacket. 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 & AIR 1957 S. C. 363)

(4) 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. Undisputably the copy does not include survey No.

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. Moh'd Kenu Vs. Kh Abdul Ahad and ors ( Civil revision

No. 91 of 1971, decided in 258 1972 ) and Yasin Shah Vs. Ibrahim Shah and ors ( Civil revision No. 110 of 1971, 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 preemption. 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 interalia on the

ground that the 'measurement 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 case has therefore no application to the present case. In the second case the 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 2681967. About a month

after on 2791967 the plaintiffs applied for amendment of the plaint by introducing a claim in the alternative based on preemption. The application

was granted. Subsequently on 10121972 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 for the first time with a view to introducing the alternative claim based on

peremption, although along with 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.

(5) 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.