PLJ 1999 Karachi 852

Mr. Kanya Lai, Advocate for Petitioners. Mr. Ali Ahmed Qureshi, Advocate for Respondent No. 2. Mr. Abdul Fatah Mughal, for A.A.G. for Respondent No. 1. Date of hearing: 26.8.1998.

order

In this revision petition under Section 115 CPC arising out of concurrent findings of fact in a suit for declaration and permanent injunction brought by the petitioners prayer is made for amendment of the plaint under the provisions of Order VI, Rule 17 CPG as follows:-

"1. In Para No. 8 of the plaint, after the words : Land measuring about- instead of 51 figure be corrected as "41 acres".

2. That after the Para No. 10 of the plaint, Para No. 10-A be added as below:-10-A. That the land granted in favour of Late Khialdas the ancestor of the plaintiffs during the year 1941 was legal, proper after proper enquiry and in accordance with law, Late Khialdas after making full malkana amount of the granted land, executing the statement and agreement before the Barrage Mukhtiarkar Dadu during the year 1941 became lawful owner of the land. The subsequent order dated 18.9.1963 passed by Defendant No. 1 allowing revision of the Defendant No. 2 by remainding the matter to Additional Commissioner, Hyderabad Division without notice to plaintiffs, order dated 17.3.1972 passed by the Additional Commissioner Hyderabad Division Hyderabad where by resuming land measuring area of 18-20 and 22-20 acres from R.S. No. 115 of Deh Nerah Taluka Mehar falling within 20 Chains of Village Fazal Agro and Junejo respectively on the inspection report of the Deputy Commissioner, Dadu, of the land granted in 1941, and the order dated 7.6.1975 passed by the Defendant No. 1 dismissing revision application filed by the plaintiffs, as time barred without computing the period of limitation properly, are illegal, mala fide, void abinitio, without jurisdiction, without lawful authority, against law of natural justice, equity and no legal effect because:--

(a) The Defendant No. 1 before passing order dated 18.9.1963 neither issued notice to the plaintiffs nor were heard.

(b) That the grant order dated 19.5.1941 passed by the then Assistant Revenue Officer after proper verification and enquiry in favour of Khialdas, had already taken legal effect.

(c) The order of Additional Commissioner, Hyderabad dated 17.3,1972 resuming land of 41-0 acres from S. No. 115 of Deh Nerah taluka Mehar for Asaish of villages is without jurisdiction, illegal, mala fide, void abinitio and of no legal effect because land was granted to ancestor of plaintiffs in 1941 during that period there was no ban on disposal of land within 20 chains of village, but ban on disposal of land within 20 chains was imposed on 30.11.1966.

(d) The Defendant No., l.has not e&mpttteeHhe period of _ _.- — — -~ limiStion prior to deciding the revision plication of plaintiffs at the time of passing the order dated 7.6.1975.

3. In prayer clause (a) of Para No. 13 be amended as:--

(i) After the word property of 51 acres be amended and instead of that 41 acres be inserted.

(ii) After the words; and all orders: be added as :

Passed by Defendant No. 1 dated 18.9.1963 Additional Commissioner, Hyderabad dated 17.3.1972."

2. Plaintiffs' case as averred in the plaint essentially is that their predecessor Seth Khialdas purchased about 74-6 acres agricultural land in deh Nerah taluka Mehar from Barrage department and paid full consideration to the Government of Sindh with the result hat the grant in his favour was complete in all respects which was fotyowed by necessary survey and mutation in the record of rights. It was further averred that ancestors of the plaintiffs improved the quality of the land by making huge investments. Such land was granted as far back as 1941. After 20 years of the above grant in the year 1961 Respondent No. 2 Nawab Khan challenged the aforesaid grant whereupon certain departmental enquiries were made and informations collected behind the back of the plaintiffs without their knowledge and notice to them, Commissioner, Hyderabad Division on 4.4.1963 informed the Respondent No. 2 that his application could not be considered. This order was impugned in revision before the Board of Revenue which was allowed and the case was remanded to the Additional Commissioner vide order dated 18.9:1963. Additional Commissioner, Hyderabad called for fresh reports and vide order dated 17.3.1972 ordered resumption of plaintiffs' land measuring about 51 acres (wrongly mentioned instead of about 41 acres) for 'Asaish' and for village purposes. This order was impugned in revision before the Board of Revenue well within time but the Member, Board of Revenue wrongly held that the revision was time barred and that the order of the Commissioner elaboi'ate and reasonable providing a cause of action to the plaintiffs to approach the Civil Court for a declaration and permanent injunction seeking the following reliefs:--

"(a) That the plaintiffs are the owners of the suit properly in their own right, title, interest and the order about allowing the property of 51 acres, for village andAssaisk as proposed, and all orders whereby the disputed property is take by Government, by final order dated 2.6.1975, are illegal, mala fide, fraudulent and ultra vires.

(b) That injunction be issued against the defendants restraining them from interfering with the properties on the basis of the order passed by the Additional Commissioner, Hyderabad and Member Board of Revenue dated 2.6.1976."

3. Respondent No. 2 contested the suit on various grounds and supported the orders passed by the Additional Commissioner as well as the Member, Board of Revenue. However, the grant of land and payment of full consideration therefor to the Government by the original grantee was not dispute. On the pleadings of the parties as many as five issues were settled of which only two issues are relevant and material namely whether the orders passed by Respondent No. 1 are illegal, mala fide and ultra vires and whether the civil Court had jurisdiction to entertain the suit?

4. Both the parties adduced evidence and after hearing, the suit was dismissed with costs. Petitioners assailed the judgment and decree in Civil Appeal No. 16 of 1985 but without any success, hence the present revision application.

5. Grounds urged in support of the application for amendment are firstly that the case was not properly pleaded in its true perspective econdly that instead of specifically assailing the order of remand dated 18.9.1963 and the order dated 17.3.1972 prayer clause said that all orders whereby disputed property was taken by the Government through final order dated 2.6.1975 be declared as illegal, mala fide, fraudulent and ultra vires, thirdly that amendment of pleadings can be granted at any stage of the proceedings in as much as there is no period of limitation for such relief and lastly that the proposed amendment is absolutely necessary for a just and fair decision of the controversy between the parties.

6. Formal objections have been filed to this application raising the question of delay in asking for amendment; that the amendment asked for is absolutely redundant and lastly that it will change the character of the suit and proposed with mala fide intention.

7. Upon hearing, learned counsel for the parties and examining the record and proceedings at quite some length, I am of the view that amendment sought in Paragraph 8 and clause (a)(i) of Para No. 13 of plaint substituting the figure 41 acres for 51 acres can be safely allowed without any hesitation as sufficient evidence has already been placed on record and no prejudice is likely to be caused to any of the parties. To this extent even learned counsel for the contesting respondent has fairly conceded.

8. As regards proposed Paragraph 10-A, it elaborates the case precisely pleaded in the plaint narrating the background of the grant of and by Barrage authorities in favour of the ancestor of the petitioners and its legality and validity. Since oral as well as documentary evidence has already been adduced by the parties such elaboration of the earlier pleadings would advance the cause of justice and suppress the mischief and is not likely to prejudice the defence of the respondent. Even otherwise Paragraph 10-A except its grounds which are argumentative in nature and which need not be incorporated in the plaint might be supported from the evidence of the parties and such point can be decided without further oral evidence which was concluded as far back as 1980.

9. Learned counsel for the applicants desires that the case may be remanded to the Court of Senior CivU Judge for further evidence as otherwise the case of the plaintiffs would be greatly prejudiced but I am not inclined to agree with this proposition for the intention and purpose behind allowing amendment of pleadings is not to fill in the gaps or to improve upon the quality of oral evidence already adduced more so after the passage of very long time. It is true that amendment can be introduced if necessary and in case the amendment does not change the complexion of the suit at any stage which is again discretionary with the Court, in the present case I think no further evidence is necessary. It may further be observed that plaintiffs though averred about the order dated 18.9.1963 passed by Member Board of Revenue remanding the revision to the Commissioner as pleaded in Paragraph 7 of the plaint it was neither challenged before any other higher
forum nor assailed in the body of the plaint in which orders dated 17 3.1972 and 2.6.1975 have been specifically and expressly assailed and impugned. It would, therefore, be neither just nor proper to assail this order of remand at this belated stage of the proceedings. Even otherwise challenge to such order at this stage is absolutely unnecessary as it has merged in the subsequent order dated 17.3.1972 and finally absorbed in the order passed by Member, Board of Revenue which are the subject matter of the controversy in this revision petition.

10. Learned counsel has relied upon Haji Suleman Gowawala v. Usman (1985 CLC 132), Lalzada v. GurBakhsh Singh (PLD 1987 Peshawar 59), Nawab Jehan Begum v. Dr. Imdad Mi (1989 SCMR 1798), Muhammad Iqbal v. Mirza Begum (1992 MLD 1257) and Mir Mazar v. Azim (PLJ 1993 SC 288) in support of his submissions. On the other hand Mr. Qureshi learned counsel for Respondent No. 2 has referred to the judgments reported as Abdur Rashid v. Muhammad Hanif (1994 SCMR 2035) and Imam Hussain v. Sher Mi Shah (1994 SCMR 2293).

11. In Haji Suleman's case a Division Bench of the Sindh High Court ruled that one distinct of action cannot be substituted for an other by an amendment of the pleas is of general application. The rule is that an amendment must be such as is either raised in the pleadings or is consistent with the case as originally laid. It was further held that unless it is shown that one set of facts is contradicting the other and as sucjj cannot be proved, the application for amendment cannot be rejected.

12. In Peshawar case, learned Single Judge allowed the prayer for amendment of plaint which was found to be defective and not reflective of correct position on which foundation would be laid for the relief claimed therein. Learned Judge expressed the view that plaintiffs could not be deprived of their rights or interests in property on technicality if they were otherwise found entitled to, on the evidence available on record. He expressed the view that justice could not be done to the parties unless plaint was amended and formal defect therein removed while allowing the amendment at revisional stage.

13. In Nawab Jehan Begum's case leave to appeal was refused against the order passed by the High Court allowing amendment in the
pleadings after nearly two decades.

14. In Muhammad Iqbal's case Supreme Court of Azad Jammu and Kashmir expressed the view that there was consensus of the superior Courts that amendment could be allowed if two conditions were fulfilled, firstly, that the proposed amendment should not change the nature of the suit and, secondly, that new cause of action was not thus set up. The Court further observed that at the early stages the view held by the same of the superior Courts was that limitation plays some part while deciding the prayer for
amendment, however, the trend in the last fifty years or so generally has been that delay was not a determining factor in the matter of mendment.

15. In Mir Mazar's case Supreme Court of Pakistan observed that Order VI, Rule 17 CPC provides that Court may, at any stage of proceedings, allow either party to alter or amend his pleadings in such manner or on such terms as may be just and all such amendments shall be made as may be necessary for purpose of determining real questions in controversy between parties. It was ruled that rules of procedure are meant to advance justice and to preserve rights of litigants. They are not mean to entrap them into blind corner so as to frustrate purposes of law and justice.

16. Having considered the effect and implication of the aforementioned case-law form the superior Courts, it would appear that
reasonable amendment in pleadings can be allowed where thes are necessary for purpose of determining real questions in controversy irrespective of delay in asking for such relief in order to achieve the ends of complete justice provided proposed amendment does not altogether change the character of the suit and does not introduce entirely a new cause of action. Judged in the light of aforesaid guide-lines, I am of the view that proposed amendment to the extent mentioned earlier must be allowed to the plaintiffs in order to advance the cause of justice and to suppress the mischief. It appears that the plaint was not drafted with due care and circumspection which necessitated the present application but in the given circumstances no fresh evidence would be required to be adduced. Even otherwise allowing of further evidence at this stage would tantamount to allowing a party to introduce new set of facts not pleaded earlier which in all probability may have the impact of prejudicing the defence of the respondent. Further more, it is not necessary for the High Court in all cases to remand the case for further evidence to the trial Court in case the controversy can be resolved on the basis of the material available on record without any inconvenience. Needless to reiterate delay in asking for the proposed amendment is neither fatal nor of much consequence. It may also be observed that nature of the suit remains un-changed and un-altered and there would be no change in the character of the suit nor would the cause of action be materially different.

17. Adverting to the case law cited on behalf of respondent, in Imam Hussain's case Supreme Court observed that amendment of pleadings though could be entertained at any stage of pleadings, yet such amendment could not be allowed to change complexion of the suit. The case is of no assistance to the respondent as I have held that by the proposed amendment complexion of the suit would not be changed. In Abdur Rashid's case, evidently it was held that the proposed amendment as stated in the application was such which was within the knowledge of the petitioner and he could have easily mentioned it in the written statement which he did not do and there was no justifiable reason for him to wait for seven years to divulge it for the first time so late, In the reported case trial Court as well as. the High Court had declined the prayer for amendment and Supreme Court did not find it fit to interfere with the exercise of discretion. There can be hardly any cavil with the proposition of law laid down by the apex Court, in he present case, it is not due to negligence of plaintiffs that the proposed amendment became necessary but laps of the counsel who was fully briefed yet a very brief and precise pleading was drafted for trial before the Court. In any event, since no new facts are introduced, the precedent case does not change the situation.

18. For these reasons CMA-109/96 is allowed to the extent stated in the earlier part of this order. Amended plaint may be filed in office within 15 days with a copy in advance to both the respondents.

19- CMA-110/1996. By this CMA under Order I, Rule 10 CPC applicants seeks to implead Additional Commissioner Hyderabad Division and Province of Sindh through Deputy Commissioner, Dadu as parties to the revision petition No doubt Mr. Qureshi has filed formal objections to such CMA, no objections have been filed by both the respondents who did not contest the suit before the Courts below. Since the order passed by Additional Commissioner, Hyderabad-Division is under scrutiny, he is a proper party to the suit. Likewise Province of Sindh is a necessary party to the suit fora functionary of the said Government acted on its behalf and he could not be sued in isolation from its employer. Even otherwise it is essential requirement of Section 79 and Order XXVII, Rule I CPC. In this view of the matter, Mr. Qureshi did not press his objections, while no argument was put forward on behalf of official respondents, CMA-110/1996 is therefore granted as prayed.

(A.A.) Order accordingly.