Harbans Singh and anr. vs Gurbakhsh Singh and ors.

S.P. Goyal, J.

The petitioners filed a suit for possession of the land in dispute by way of preemption on the ground of their relationship with the vendor. The right of preemption on the ground or relationship was struck down as ultra vires of the Constitution by the Supreme Court recently in Atma Parkash V. State of Haryana, A. I. R. 1986 S.C. 859. The petitioners, therefore, moved an application under Order 6, rule 17, Civil Procedure Code, for permission to amend the plaint so as to exercise the right of preemption on the basis of their being cosharers in the khewat with the vendor which was opposed by the defendants. The trial Court declined the prayer holding that a new ground for preemption cannot be permitted to be pleaded after the expiry of the period of limitation for filing of the suit. Aggrieved thereby the petitioners have come up in this revision.

To invoke the jurisdiction of this Court under section 115 of the Code of Civil Procedure, it was urged that the trial Court acted illegally in exercise of its jurisdiction inasmuch as the rule laid down by this Court in Kishan v. Charan Singh and others, 1980 P.L.J. 94, and Hukam Pal v. Smt. Bhartho and others, 1985 R.R.R. 641 : 1985 P.L.J. 201, was not observed while declining the amendment. Both the said decisions, however, are distinguishable on facts and of no help to the petitioners. In Krishan''s case (supra) all that the plaintiffs wanted to plead by the amendment was that he was the nephew of defendants Nos. 2 to 4. He had already stated that he was the son of defendant No. 5 brother of defendants Nos. 2 to 4. On these facts it was held that by the proposed amendment no new ground of preemption was sought to be introduced. Similarly in Hukam Pal'' case (supra) by the proposed amendment, the plaintiff wanted to plead that the land was inherited by the vendor from her father. She had already mentioned her relationship with the vendor. Kang, J. on these facts, while allowing the amendment observed that by the proposed amendment neither an effort was made to set up a new case on the basis of a new cause of action nor a new ground for preemption was sought to be added.

The learned counsel then relied on a Division Bench decision of Jammu and Kashmir High Court in Mst. Gulab Bibi and another v. Smt. Shakuntala Devi and others, A.I.R. 1964 J and K 82, wherein exactly on similar facts as in the present case a new ground of preemption was allowed to be pleaded by way of amendment. So far as this Court is concerned since the decision of Harbans Singh, C.J. in Gurmukh Singh v. Dalip Singh and others, 1971 Punjab Law Reporter 830, the consistent view has been that a new ground of preemption cannot be introduced after the expiry of the period of limitation for filing the suit. Similar view has been taken by Sodhi, J. in Mohinder Kaur v. Rana Joginder Singh and others, 1986 R.R.R. 543 : 1985 P.L.J. 240, and Chander Bhan v. Mange Ram and another, 1986 R.R.R. 594 : 1986 P.L.J. 291. The trial Court in these circumstances by no stretch of reasoning can be said to have acted illegally or used its discretion arbitrarily while declining the amendment. This petition, therefore, must fail and is hereby dismissed but without any order as to costs.