1. A decree for pre-emption was sought on the ground of the plaintiff being a co-sharer as also a relation of the vendor. The relationship pleaded being that the plaintiff was the vendor's father's
sister's son. This relationship was denied in the written statement filed by the defendants, where it was said that the plaintiff was the adopted son of Harphool, Harphool being the plaintiff's father's brother. In the replication filed by the plaintiff, the pleas raised in the plaint were reiterated; while those to the contrary in the written statement were controverted.
2. When the suit reached the stage of recording the plaintiff's evidence in rebuttal and arguments, an application for amendment of the plaint was filed by the plaintiff with a view to incorporate in the plaint
the claim of the plaintiff to pre-emption on the ground that the plaintiff was the vendor's father's brother's son. In other words, on the basis of the relationship as mentioned in the written statement filed by the defendants and denied by the plaintiff in his replication. This application had admittedly been filed on a date when a suit for pre-emption on this basis would have stood barred by time. This revision petition is directed against the order of the trial Court allowing such amendment.
3. It was the contention of Mr. Ashok Kumar Aggarwal, counsel for the defendant-petitioner that it is a wel1 established proposition of law that the specific ground upon which a preferential right of pre-emption is sought must be pleaded within the period of limitation. If this period is allowed to elapse the right that thereby accrues to the defendants-vendees to defeat the pre-emptor's claim by such passage of time cannot be allowed to be defeated by such specific ground being allowed to be introduced thereafter. Reliance here being placed upon the judgment of Chief Justice Mehar Singh in Shankar Singh v. Chanan Singh, 1968 Cur LJ 363 (Punj & Hry). The plaintiff in this case claimed a right of pre-emption on the ground that the vendors were his collaterals. Collateral relationship was being no ground of pre-emption with regard to agricultural land. After the period of limitation for the filing of the suit had expired, an amendment was sought by the plaintiff with a view to spell out his collateral relationship with the vendors. It was in dealing with this amendment that it was held that the specific ground on which preferential right of pre-emption is sought must be pleaded in the suit within the period of limitation. It was further observed that it was a particular defined relationship which gave a right of pre-emption and such particular relationship has to be stated in the plaint within the period of limitation. If after the period of limitation such an attempt is made it cannot be permitted to defeat the right that has accrued to the vendee to defeat the pre-emptors' claim as not coming within the statutory provisions upon which reliance is placed.
4. On a parity of reasoning there is no escape from the conclusion, in the present case, that here too the amendment asked for could not and should not have been allowed. The application for amendment having been filed beyond the period of limitation, the right which had accrued to the defendants-vendees to defeat the plaintiff's claim for pre-emption cannot be allowed to be denied in this manner.
5. In seeking to avoid interference in revision with the impugned order Mr. C. B. Kaushik, counsel for the pre-emptor sought to press in aid the provisions of Section 115 of the Civil P. C. to contend thereby that no such interference was warranted in terms thereof. This is clearly a contention devoid of merit. A similar contention had also been raised in Shankar Singh's case (1968 Cur LJ 363) (Punj & Har) (supra), where it was held that where a Court exercises a discretion, as it had done in that case, against the statute of limitation it cannot be said to have exercised its discretion judicially. Failure of justice and irreparable injury to the defendants-vendees would manifestly be there in so far as the defendants-vendees are concerned.
6. For the foregoing reasons, the impugned order of the trial Court is hereby set aside and the amendment as prayed for by the plaintiff is hereby disallowed. This revision petition is thus accepted. The parties are directed to appear before the trial Court on February 21, 1984 for further proceedings in the suit according to law.
7. Costs of this petition shall be costs in the suit.
8. Revision allowed.