Gokal Chand Mital, J. - (1.) A sale made on 16 -2 -1981 was sought to be pre -empted by vendor's brother by filing a suit on 15 -2 -1982. The sale was of 1/4th share. Both the Courts below found the pre -emptor to be vendor's brother and decreed the suit. The vendees came to this Court in second appeal which was admitted. While the appeal was pending, the Supreme Court declared the ground of pre -emption on the basis of relationship contained in the Punjab Pre -emption Act, 1913 to be ultra vires of Article 14 of the Constitution of India. The judgment was delivered on 27 -2 -1986 and is reported as, 1986 (1) P.L.R. 329 in the part issued for 1 -3 -1986. In the month of March, 1986, without loss of time, the pre -emptor, who was Respondent in the appeal, filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking permission to amend the plaint so as to add/substitute the ground of pre -emption on the basis of being a co -sharer, which was also a ground for pre -emption at the time of sale; at the time of filing of the suit: at the time when the decree of the trial Court was passed and even till today. It is further stated on behalf of the pre -emptor that evidence in regard to his using a co -sharer is already on the record and he would not seek any opportunity to lead evidence in that respect. Notice of the application was given to the vendees and they have opposed the application.
(2.) THE counsel for the pre -emptor has placed reliance on two D. B. judgments in support of the prayer for amendment (1), AIR 1964 J & K 82 and (2) : AIR 1978 Cal 482. The judgment of the J. & K. High Court on all fours supports the pre -emptor in seeking amendment, whereas the Calcutta High Court judgment is on somewhat different facts. The Judges of the Calcutta High Court followed the J. & K. judgment and dissented from the judgment of this Court in : AIR 1971 P&H 418. On the contrary, the counsel for the vendees has cited (1), 1968 CriLJ 363, (2) : AIR 1971 P&H 418, (3), 1974 PLR 387, and (4), 1985 PLR 483. There has been consistent view of this Court that a new ground of pre -emption cannot be allowed to be added after the expiry of the period of limitation. It is true that the highest Court of the land has declared the pre -emption on the ground of relationship to be ultra vires and void but there was no impediment in the way of the pre -emptor to seek pre -emption on all possible grounds which were available to him at the time of filing of the suit within the period of limitation. When he rested content by seeking pre -emption on one ground and if on that ground he fails, in second appeal, he cannot be allowed to take a new ground of preemption after the expiry of the period of limitation. This rule has been accepted even by the J. & K. High Court but they considered that a special case had been made out to allow amendment after the ground on which the pre -emption was initially sought, is declared void. I am not in agreement with this view of the J. & K. High Court, nor with that of the Calcutta High Court and would follow the consistent view of this Court noticed in the aforesaid judgments.
(3.) FOR the reasons recorded above, the application under Order 6, Rule 17 of the Code of Civil Procedure is disallowed. Since the pre -emption was claimed only on the ground of relationship, namely, brother of the vendor, and since this ground is not available now in view of the Supreme Court decision in, 1986 P.L.R. 329, the appeal of the vendees is allowed and the suit filed by the pre -emptor is hereby dismissed. Since the pre -emptor is failing because of the declaration made by the Supreme Court recently, there will be no order as to costs.;