Knox and Aikman, JJ.
1. This is a first appeal, from an order passed by the District Judge of Shahjahanpur whereby that Judge remanded the suit out of which the appeal before him arose under Section 562 of the code of Civil Procedure for decision upon its merits. The suit is what is known as a preemption suit. Muhammad Asad Ali, the respondent here, was plaintiff: he sued to enforce a right of pre-emption which he claimed over certain property which had been sold by one Muazziz Ali, one of the defendants to the suit, to Musammat Barkat-un-nissa, a second defendant and appellant here. In the plaint under which the suit was instituted the respondent set out in the recital of facts that the share sold by Muazziz Ali to the appellant was a 2 biswas 9 biswansis share. In his prayer for relief he also stated the share as being a 2 biswas 9 biswansis share. In point of fact, as admitted by both parties to this appeal, the property which was sold was not a 2 biswas 9 biswansis share, but a share amounting to 2 biswas, 9 biswansis, 15 Kachwansis, 11 nanwasis and 2 tanwansis. The portion which was omitted was thus but a small fraction of the whole amount of the property which formed the subject-matter of the bargain between Muazziz Ah and the appellant. The learned Judge held that in the interests of justice permission should have been given to the respondent to amend his plaint so as to include along with the property claimed the fractional share which had been omitted. It appears that the respondent on discovering that he had omitted to claim the whole of the property asked for leave to amend his plaint so as to include the whole bargain, but his prayer was refused. In appeal before us it is contended that the Court of first Instance was, and is, precluded from permitting the plaint to be amended, because by so doing it would virtually extend the period allowed by hw within which a preemption suit can be instituted, and that the omission by the respondent to claim a portion of the property which was sold prevents him from enforcing his right over any part of the property and renders his suit liable to dismissal. In support of the first contention we were referred to the case of Jainti Prasad v. Bachu Singh I.L.R. 15 All. 65. That case however, was of an entirely different character, and the point which arose for decision there is in no way connected with that which we are called upon to decide in the present appeal. The case of Jainti Prasad was one in which the plaint presented before a Court of First Instance was written upon paper insufficiently stamped and permission was given by the Court before which the plaint was filed to make up the deficiency. The period of grace allowed by the Court extended beyond the time within which the suit could have been instituted. It was held (vide p. 70) that 'a plaint is a document within the meaning of the Court-fees Act and within the meaning of Section 28, and as a suit can only be instituted by the presentation of a plaint, the presentation of an insufficiently stamped document, which if sufficiently stamped could be treated as a plaint, cannot be regarded in law as the institution of a suit within the meaning of the explanation to Section 4 of the Indian Limitation Act, 1877, or of Section 48 of the Code of Civil Procedure. Section 28 of the Court-fees Act prohibits the Court from regarding any document which ought to be stamped under that Act as of any validity unless and until it is properly stamped.'
2. In the case before us the suit as brought was undoubtedly instituted within time and no question of sufficiency of stamp arises. The whole tenor of the plaint, and we have examined it carefully, satisfies us that the intention of the respondent was to institute a claim for the whole of the property sold to the appellant: it was merely from inadvertence or some other similar cause that he left out of his plaint the small fractional share which has been set out above. The question before us is--is a Court precluded from returning a plaint for amendment if at the time when it is returned for amendment the period of limitation of the suit may have expired
3. The Section of the Code which authorizes a Court to return plaints for amendment is Section 53. That section empowers a Court at any time before judgment to let a plaint be amended upon such terms as to the payment of costs as the Court thinks fit. Only one circumstance is set out as being a circumstance under which a plaint should not be amended either by a party or by a Court, and that is when the amendment would convert a suit of one character into a suit of another and inconsistent character. Does that circumstance arise in the present case? The suit as instituted was a suit to enforce a right of pre-emption over a 2 biswas 9 biswansis share: the suit as amended would be to enforce the same right of pre-emption over the same 2 biswas 9 biswansis share plus a small fraction. It cannot be said with any show of reason that by the addition of this fractional share the suit brought will be converted into a suit of another and inconsistent character.
4. As regards the second contention, the case before us is not one in which the pre-emptor is seeking to break up the bargain, or to pick and choose out of the property which has been sold. The learned pleader for the appellant referred us to the case of Muhammad Vilayat Ali Khan v. Abdul Rab I.L.R. 11 All. 108. That was a case not at all in accord with the present case. The reason why the would be pre-emptor in that suit lost his suit for pre-emption was that he had by his conduct acted in such a way as to lead the parties to the bargain to conclude that he would not be the purchaser of any portion of the property sold. We are satisfied that in the present case, and from the very first, the respondent wished to purchase the whole of the property which was for sale. Both the pleas taken in appeal fail and the appeal before us is dismissed with costs.