- (1.) The plaintiff Dalbir Singh filed a suit for possession of agricultural land mentioned in the plaint by pre-emption. The land sold was owned by Suba Singh, defendant 1, who sold it for Rs. 22,000/- in favour of defendants 2 to 5 by a sale-deed dated May 27, 1965. The plaintiff is the son of the vendor and on the basis of the relationship, he claimed the right to pre-empt the land. In the plaint he stated that only Rs. 1,000/- had been paid and that was the market price of the land and he asked for a decree in his favour on payment of Rs. 16,000/-. The vendees filed a written statement in which they pleaded that the suit was benami for the vendor, it was bad for partial pre-emption and the value for court-fee and jurisdiction had not been correctly given. It was further submitted that the land was banjar on the date of sale and the vendees had reclaimed it. They claimed expenses of stamps and registration of the sale-deed and the cost of improvements. On the pleadings of the parties, the following issues were framed ? 1. Whether the plaintiff has a superior right of pre-emption ? 2. Whether the price was paid or fixed in good faith ? 3. If issue No. 2 is not proved, what was the market value of the land in suit ? 4. Whether the value for purposes of court-fee and jurisdiction has been correctly fixed ? 5. Whether the plaint and vakalatnama are not signed by the plaintiff ? 6. whether the suit is benami for the vendor ? 7. Whether the suit is bad for partial pre-emption ? 8. Whether any land out of land in suit was banjar as alleged and the defendants have reclaimed it ? If so, to what effect ? 9. Whether the defendants made any improvements and if so, to what amount ? 10. Whether the defendants are entitled to deed and registration expenses, if so to what amount ?
(2.) It is to be noted that the suit was filed on May 27, 1966, the written statement was filed on January 21, 1967, and the issues were framed on February 15, 1967. After the framing of the issues the case was adjourned to March 22, 1967 for the evidence of the plaintiff. In the meantime on March 4, 1967, the plaintiff filed an application under Order 6 Rule 17 of the Civil Procedure Code for seeking permission to amend the plaint. In this application it was stated that the plaintiff had not expressly entered in the plaint :- (a) a house in abai No. 28 measuring 1 kanal 2 marlas 1 Sarashi; (b) a taur No. 31 measuring 1 kanal 1 marla 7 Sarsahi; and (c) a house on the well. The mistake was stated to be inadvertent and not intentional as it had been mentioned in the plaint that no property as entered in the sale-deed had been given up. In the plaint the share in the well and shamlat was mentioned as 1/8th whereas it should have been 1/5th. It was, therefore, prayed that the plaintiff may be permitted to amend the plaint so as to include the items mentioned as (a), (b) and (c) above and to correct the share in the well and shamlat as 1/5th instead of 1/8th. This application was opposed by the defendant-vendees but was allowed by the learned trial Court by order dated April 17, 1966 on payment of Rs. 50/- as costs. The costs were not accepted by the defendant-vendees and the same were deposited in the Court. The amended plaint was filed on April 26, 1967, as ordered by the trial Court to which no fresh written statement was filed by the defendants. After the trial, the suit was decreed by the learned trial Court on June 26, 1967. The learned Sub-Judge held that Rs. 22,000/- had been paid to which the defendant-vendees were entitled in addition to Rs. 1,320/- on account of stamps and registration charges on the sale-deed. It was held that no part of the land was banjar nor had it been reclaimed. The decree for possession of the land in suit was passed in favour of the plaintiff on payment of Rs. 23,320/-. The defendant-vendees went up in appeal which was dismissed by the Additional District Judge Jullundur. Before the learned lower appellate Court only two issues were argued, that is, issues 1 and 7. On issue No. 1, the learned Court came to the conclusion that the plaintiff was the son of the vendor and not his pichhlag son as was asserted by the vendees. On issue No. 7, the argument was advanced that the learned trial Judge should not have allowed the plaintiff to amend the plaint as there was no bona fide mistake. The argument was also not accepted by the first appellate Court and, therefore, the appeal was dismissed on January 12, 1968. Feeling aggrieved, the vendees have come up in second appeal to this Court.
(3.) The only point argued before me is that the learned trial Court should not have allowed the plaintiff-respondent to amend his plaint as the mistake was not inadvertent but the omission to mention the house in the abadi, a taur and the house on the well in the plaint, was due to negligence. Both the lower Courts have found that the omission to mention those properties in the original plaint was due to the bona fide mistake. That finding has been arrived at after considering the material on the record. Apart, from that, I find that in the sale-deed, these properties, were mentioned towards the end, after the sale-deed with regard to the land had been closed. It appears that the advocate who drafted the plaint did not read the sale-deed upto the end and mentioned the property to be pre-empted on the basis of what was stated in the earlier portion of the sale-deed. This mater was duly considered by the learned trial Court. It is also evident from the agreement to sell, Exhibit D-1, that the property which was agreed to be sold for the sum of Rs. 22,000/-, was only the land and not the house in the abadi, the taur and the house on the well. This fact also shows that these three items of property were of insignificant value and the vendor just agreed to give them away to the vendees along with the land for no extra consideration. In the agreement to sell, the price of Rs. 22,000/- was mentioned for the land only and in the same price these three items of property were also sold. That these properties were of very little value is also borne out from the fact that the plaintiff fixed their price for purposes of court-fee as Rs. 200/- which was contested by the defendant-vendees. The learned counsel for the plaintiff-respondent has relied upon the Division Bench judgment of the Chief Court in Jalal Din and others v. Qaim din and others wherein it was held that Order 6 Rule 17 of the Civil Procedure Code allows amendment of any part of a plaint provided the amendment does not alter the character of the suit or introduce a different cause of action. The facts of the case were that on April 7, 1908, a property was sold consisting of 41 kanals 18 marlas of land, the second floor of a house, share in a well and share of a shamilat. On March 30, 1909, a suit for pre-emption was brought but in the plaint, the property asked for was described merely as 41 kanals 18 marlas of land. On May 12, 1909, the plaintiff applied for leave to amend the plaint saying that he had not intended to renounce any part of the claim but had by a kitabi ghalti omitted the house. The Court sanctioned the amendment which was made. Still the share of the well and the shamilat was left out. On February 4, 1910, this defect was pointed out by the vendee's pleader and the plaint was on the same day returned for amendment and was put in finally and fully amended on February 16, 1910. On these facts it was held that this was a case of inadvertence and misdescription of property claimed and not of an intentional omission and the amendments were accordingly admissible. It was further held that where a plaint has been rightly amended, the date of the institution of the claim is the date of the presentation of the original and not the not the amended plaint.;