Nasib Chand etc. vs Pershotam etc.

R.S. Pathak, C.J.—This is a Defendant''s revision petition u/s 115, Code of Civil Procedure, against an order of the learned Subordinate Judge, Nalagarh, allowing an amendment of the plaint and refusing amendment of the written statement.

The Plaintiff''s mother, Sita, executed a sale deed in favour of the Defendants under which she transferred her share in a certain parcel of land and also a share in a house. The sale deed recites that the land was sold for Rs. 14,800/- and the house for Rs. 200/-, the total consideration being Rs. 15,000/-.

The Plaintiff has now brought a suit for possession by pre-emption in respect of the land pleading that he had a pre-emptive right over the Defendants. The Defendants have filed their written statement and the Court has framed issues.

On May 26, 1970, the Defendants applied for amending the written statement, the proposed amendment being that the suit was bad for partial pre-emption inasmuch as the Plaintiff had not claimed relief respecting the house also. The Plaintiff filed a reply opposing the amendment. The court fixed September 26, 1970, for arguments on the amendment application. On that date the Plaintiff filed an application for amendment of his plaint in order to include the house in the suit. It was alleged that the omission to include the house initially in the suit was occasioned by in advert ant mistake and the property sold had not been described properly in the plaint. The amendment was opposed by the Defendants. The learned Subordinate Judge, Nalagarh, has made an order dated March 18, 1971, allowing the Plaintiff''s amendment and rejecting the Defendants''. The Defendants pray for relief against that order.

It seems to me that the learned Subordinate Judge is right. The sale deed recites that the transfer of the two properties, the land and the house, has been effected for a total sum of Rs. 15,000/-. The house has been described as "Khola", and the sale consideration in respect of it has been set at Rs. 200/- only. The balance, which represents almost the entire sale consideration, relates to the land. The case disclosed in the plaint is that Sita sold the land to the Defendants, and that while the sale deed shows the price at Rs. 15,000/- the price actually paid is Rs. 10,000/- only. The Plaintiff has paid Court fee on the basis that the suit was in respect of the land. It is apparent that the Plaintiff intended to challenge the sale in respect of the entire property covered by the sale deed. Had the Plaintiff intended to file the suit in respect of the land alone, and therefore, part only of the property included in the sale deed, he would have mentioned that the land had been shown as sold for Rs. 14,800/-. He would not have referred to the sale consideration being Rs. 15,000/-. It seems that the house being merely "khola" and of the trivial value of Rs. 200/-, it was supposed that it was included when reference was made to the land in the plaint. It is urged by the Defendants that if relief in respect of the house is now introduced, long after a suit for such relief is barred by limitation, it would work serious injustice to the Defendants as they were entitled to the dismissal of the suit by reason of the doctrine against partial pre-emption. Reliance is placed on A.K. Gupta and Sons Vs. Damodar Valley Corporation, Reference has also been made to Shankar Singh v. Chanan Singh 1968 C L.J. 363, where Mehar Singh, C.J., of the Punjab and Haryana High Court held that the specific ground on which a preferential right of pre-emption is sought must be pleaded in the suit within the period of limitation, and that an attempt to amend the plains after the period of limitation has expired cannot be permitted as it would result in defeating the right, which had accrued to the vendee, to defeat the preemptor''s claim. The case before me is a very different one. There is no question here of seeking relief in respect of property which had been deliberately omitted when the plaint was originally filed. It is a case where the Plaintiff intended to bring the entire property covered by the sale deed within the scope of the suit and where in the mistaken belief that reference to the land alone was sufficient no mention was made of the house. That is clear, as I have observed, from the circumstance that the plaint refers to the entire amount of Rs. 15,000/- for which the sale deed was executed. The omission to refer to the house was not deliberate. In Jalal Din and Ors. v. Qaim Din and Ors. AIR 1914 Lah 263, a Division Bench of the Lahore High Court upheld the amendment of a plaint even though made after the expiry of the period of limitation. The learned Judges drew a distinction between the case where the defects in a plaint were intentional and where they were inadvertant. That view was followed by the Punjab and Haryana High Court in Karam Singh v. Charan Singh and Anr. 1971 R LR 529, The rule is that even where limitation intervenes it is merely a factor to be taken into account in deciding whether an amendment should be allowed; it does not automatically call for rejection of the amendment. It does not affect the power of the Court to order amendment if that is required in the interests of justice. See Charan Das v. Amirkhan ILR 47 Ind App.225 and L.J. Leach and Co. Ltd. v. Messrs Jardine Skinner and Co. AIR 1956 S.C. 357.

In my judgment, upon the facts and circumstances of the case, no fault can be found with the order of the learned Subordinate Judge.

In the result the revision petition fails and is dismissed with costs, which I assess at Rs. 100/-.