P L D 2001 Supreme Court 518

Present: Muhammad Bashir Jehangiri and Nazim Hussain Siddiqui, JJ

QAMAR-UD-DIN---Petitioner

Versus

MUHAMMAD DIN and others---Respondents

Civil Petition No.718 of 2000, decided on 2nd February, 2001.

(On appeal from the judgment/order dated 1-3-2000 of the Lahore High Court, Rawalpindi
Bench passed in W.P. No. 1726 of 1999).

(a) Civil Procedure Code (V of 1908)------

----O. VI, R.17---Pleadings, amendment of---Scope---Amendment can be allowed at any stage,

in such manner and on such terms, which may be equitable and just for contesting
parties---Reasonable ground, however, has to be shown for exercising jurisdiction under O.VI,
R.17, C.P.C.

(b) Punjab Pre-emption Act (IX of 1991)----

----S. 13---Civil Procedure Code (V of 1908), O.VI, R.17 & S.35--Constitution of Pakistan
(1973), Art. 185(3)---Pre-emption suit---Amendment of pleadings for rectification of
typing/clerical mistake---Date of knowledge of sale was inadvertently written in the plaint
whereas the correct date was mentioned in the notice of Talb-i-Ishhad---Pre-emptor filed
application for correction of the date and the same was allowed by Trial Court against
costs---Lower Appellate Court in exercise of revisional jurisdiction set aside the said order of
Trial Court---Order of Lower Appellate Court was assailed in Constitutional petition wherein
High Court allowed the amendment but the costs fixed by Trial Court was enhanced from
Rs.1,000 to Rs.10,000--Validity---Ex facie the amendment was to rectify the typing/clerical
mistake and was rightly allowed by the Trial Court on payment of costs---Lower Appellate Court
by setting aside the order of Trial Court in exercise of revisional jurisdiction had committed
serious illegality of the nature which could have the effect of depriving the legitimate right of a
par y---Leave to appeal was refused.

(c) Civil Procedure Code (V of 1908)---

----S. 115---Constitution of Pakistan (1973), Art. 199---Constitutional

petition---Maintainability---Order passed in revision petition by Appellate Court below assailed
in Constitutional petition---Validity---Merely because revision was decided, the same would not
by itself be a bar for aggrieved party to file Constitutional petition in High Court for seeking
complete justice---Exercise of such jurisdiction de ends solely upon the merits of each case.

Noor Muhammad v, Sarwar Khan and 2 others PLD 1985 SC 131 and ass an Din v. Hafiz Abdus
Salam PLD 1991 SC 65 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for
Petitioner.

Malik Ilyas Khan Tamman, Advocate Supreme Court and Ejaz Muhammad Khan,
Advocate-on-Record for Respondents.

Date of hearing: 2nd February, 2001.

JUDGMENT
NAZIM HUSSAIN SIDDIQUI, J.---Petitioner Qamar-ud-Din, has impugned judgment dated
1-3-2000 of a learned Judge in Chamber, Lahore High Court, Rawalpindi Bench, whereby Writ
Petition No. 1726 of 1999 was allowed.

2. It is a pre-emption matter relating to Ian measuring 35 Kanais and 13 Marlas, situated in

village Kot Shera, Tehsil Talagang, District Chakwal, V6hulam Mohi-ud-Din and Muhammad
Hussain, the respondents Nos.2 and 3 respectively filed a suit for possession through right of
Pre-emption before learned Civil Judge, First Class, Talagang against Qamar-ud-Din, petitioner,
Muhammad Din respondent No. 1/rival pre-emptor also brought such suit against petitioner. The
matter was contested by the parties. It is alleged that after 3 years and 6 months respondent No.
1, moved an application, under Order 6, Rule 17, C.P.C. for amendment in the plaint, alleging
that due to inadvertence the date of knowledge was shown as 5-1-1995 instead of 28-12-1994
and the latter date was clearly mentioned in the notice of Talb-i-Ishhad. It was sent to the vendee
i.e. the petitioner. Learned trial Court vide order dated 6-11-1998 allowed amendment, subject to
the payment of Rs.1,000 as costs.

3. The petitioner and respondent No.2 through separate Civil Revisions challenged above order
before learned Additional District Judge, Chakwal, who, vide order dated 7-5-1999, allowed
revision applications and set aside the order of trial Court.

4. Thereafter, writ petition was filed by the respondent No. l and it was accepted by High Court
with the following observations:--

"A perusal of the record reveals that sale took place on 28-12-1994 vide Mutation No .2235.
Notice of Talb-i-Ishhad was issued to the vendee on 5-1-1995 a copy of which has been annexed
with this writ petition. A perusal of this notice clearly shows that plaintiff/petitioner has stated
therein that he came to know about this sale on 28-12-1994. This notice was drafted on 5-1-1995.
It appears that while drafting the plaint the learned Advocate gave the date of knowledge
as.5-1-1995 as the said date appeared in the end of that notice. Had the notice of Talb-i-Ishhad
not been annexed with the plaint containing date of knowledge as 28-12-1994, it could be said
that amendment had been allowed without any justification. This nonce of Talb-i-Ishhad dated
5-1-1995 starts from the very fact that plaintiff/petitioner had come to know about this sale on
28-12-1994. Since the notice of Talb-i-Ishhad was drafted on 5-1-1995 so while drafting the
plaint the said date has been mentioned therein. This being the factual position, the trial Court
was justified in granting the said amendment vide order dated 6-11-1998. The revisional Court
has not exercised the jurisdiction vested in it in accordance with law while passing impugned
order dated 7-5-1999. Accordingly writ petition is accepted and order dated 7-5-1999 is set aside
and order dated 6-I1-1998 passed by the trial Court is hereby restored.

Since the petition seeking amendment has been moved with a delay of 3 years and 6 months, so
the cost of Rs.1,000 is enhanced Rs.10,000. "

5. It is contended on behalf of petitioner that the impugned order of High Court is against the
established judicial norms and once matter was decided by learned Additional District Judge,
while exercising revisional jurisdiction it could not be reopened. Learned counsel also argued
that since it was not shown that revisional order was without lawful authority and jurisdiction,
High Court was not justified to reverse the findings of the revisional Court. In support of above
contentions, reliance is placed upon cases reported as:--

(1) Noor Muhammad v. Sarwar Khan and 2 others PLD 1985 SC 131, and

(2) Hassan Din v. Hafiz Abdus Salam PLD 1991 SC 65.

b. In case of Noor Muhammad, it was held that there was an increasing tendency to file
Constitutional petitions even when the Courts, whose orders were challenged, had the
jurisdiction to pass those orders. Further, it was observed that so was done notwithstanding the
fact that where the Court has jurisdiction to decide a matter, it can do so rightly or wrongly and
the mere fact that the decision on a question of fact or law is not correct, does not necessarily
render it without lawful authority and certainly not illegal.

7. In the case reported as Hassan Din, leave to appeal was granted to examine, whether the
decision of this Court in above-referred Noor Muhammad case did not oust the jurisdiction of the
High Court to interfere in Constitutional jurisdiction with an order passed by the District Judge
under subsection (2) of section 115 of the Civil Procedure Code. It was held that the effect of the
judgment delivered in Noor Muhammad case is not that a Constitutional petition is in no case
permissible whatever the nature of the . defect in 'the proceedings before District Judge be.
Further, it was observed that a mere illegality committed with jurisdiction shall not be a ground
for entertaining a Constitutional petition,
8. Adverting to the facts of the instant case, it is noted that amendment in pleading can be
allowed at any stage, in such manner and on such terms, Which may be equitable and just for the
contesting parties. Of course for A` exercising jurisdiction, as above, a reasonable ground always
has to be shown. It is not disputed that in the notice of Talb-i-Ishhad dated 5-1-1995, it was
clearly stated that the petitioner had come to know about the sale on 28-12-1994. Ex facie it was
typing/clerical mistake and was rightly allowed to be rectified by trial Court on payment of costs,
which was further enhanced by High Court from Rs.1,000 (Rupees one thousand) to Rs.10,000
(Rupees ten thousands). Revisional Court by setting aside the order of trial Court had committed
serious illegality of the nature, which could have the effect of depriving the legitimate right of a
party. Merely because revision was decided, it would not by itself be a bar for an aggrieved party
to file writ for peeking complete justice in appropriate cases, which of course will depend upon
the sole merits of each case.

9. Accordingly, leave to appeal is refused and the petition is dismissed.

Q.M.H./M.A.K./Q-8/S Appeal dismissed.