Adnan Ahmad Vs Muhammad Salim Khan

JT]DGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BAI\NUBENCH

(Judicial Deportment)

Adnan Ahmad Vs... Muhammad Saleem.

For petitioners: IWs Waris Faheem and Muhammad Tariq Qureshi, Advocates.

For respondents: Mr. Farhan Ullah Gran, Advocate (via video link).

Date ofhearing:

ABDAL FAYAZ, J.- Through instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973,the petitioner has prayed for the following t relief:

" It is humbly prayed that this Hon'ble Court may graciously be pleased toi (l)Set aside, the orders/j dated 12.11.2022 of leamed trial Court/ Civil Judge-VI, Lakki Marwat and dated 23.05.2023 of leamed revisional Court/ADJ-I, Lakki Marwat and resultantly the of petitioner for amendment may please be accepted.

(z)Any other relief deemed in the circumstances not specifically

prayed for may also be given to the petitioner."

2.Brief facts forming the background of the instant petition are that the petitioner/plaintiff instituted a suit for possession through exercise of the right of pre-emption against the respondent, who had purchased the suit property vide Mutation No.3352 dated 23.11.2020. The respondent contested the suit by submitting written statement. Subsequently, during pendency of the suit, the petitioner filed an application seeking amendment of the plaint by inserting Khata No.69, Khasra No.380, as well as Khata No.73 along with Khasra No.379, asserting that these were omitted due to clerical error and that the mutation in question $ comprised three Khatas. The respondent opposed the application. The learned tial Court after hearing arguments of both the learned counsel for the parties, dismissed the petitioner's application vide order dated 12.11.2022; the revision petition filed by the petitioner against the order of the learned trial Court dated 12.11.2022 was also dismissed by the learned Additional District Judge-I, Lakki Marwat vide

a its judgment dated 23.05.2023. Hence, this petition.

3 Arguments heard and record examined.

4 Perusal of the plaint shows that the petitioner sought pre-emption only in respect of Khata No.72, Khasra No.443, measuring l% kanal, part of Mutation No.3352. However, Mutation No.3352 reflects transfer of land from three distinct Khatas, i.e. Khata No.69, Khasra No.380 measuring I kanal 3 marlas, Khata No.72, Khasra No.443 measuring l%L,an;oll and Khata No.73, Khasra No.379 measuring I kanal 4Yzmarlas. Neither Khata No.69 Khasra No.380, nor Khata No.73lKhasra No.379,was mentioned in the plaint, nor were they mentioned in the notice Talb-e-Ishhad, which is a mandatory prerequisite under the law of pre-emption. The omission from notice Talb-e-Ishhad is fatal as a claim not asserted in notice Talb-e-Ishhad cannot be introduced later on through amendment in the plaint.

5.Moreover, during frial management and scheduling conference, as well as in Proforma-E (proposed extribits under Order XIII CPC) and Proforma-F-I (list of witnesses/documents under

Order XVI CPC), the petitioner consistently relied only upon Khata No.72, Khasra No.443.

Furthermore, the petitioner verified the plaint at the time of filing; hence he was fully aware of its contents. The attempt to introduce Khata No.69 and Khata No.73ll(hasra No.379 fundamentally alters the basis of the suit and amounts to introducing a new claim. Wisdom in this respect is derived from a judgment of the august Supreme Court reporGd in 2013 SCMR 23 hu

whereby their Lordships have held as under:-- "Quite apart from this since a case under the latest is more like a criminal case and a plaint in the former is almost like an F.I.R. in the latter, no omission however, fatal it may be, can be allowed to be supplied by means of amendment. In case it is done by means of amendment, it would open K,om foradditions, afterthoughts and improvements which would go ad Neither the pre-emption nor the criminal case with this modus would admit of an end in the mundane existence of the parties. We, therefore, have no error much less patent on the face ofthe record bY declining the prayer for of plaint and

the appeal of the

The leamed tial Court as well as the appellate Court has acted within all four comers while declining the prayer of amendment in the plaint.

The leamed counsel for petitioner could not convince this Court to interfere in the well- reasoned orderV judgments of both the courts below.

6 in view of the above discourse this writ petition is devoid of any merits and is herebY dismissed

Announced.

*Ilaan'

(S,B)

Hon'ble Mr. Justice Abdul FaYaz