P L D1969 Azad J & K 7 (PLP)

During the pendency of this second appeal Fateh Mohammad Khan and others plaintiff‑respondents made an application under Order VI, rule 17 of the C. P. C. for amendment of the plaint on the lines stated by them in their application. The defendant‑appellant Mohammad Yaqub Khan put in a written statement objecting to the amendment sought by the appellant. His contention was that at this late stage of second appeal the application for amendment could not be said to have been made in good faith; and that by now his adverse possession of the land had ripened into ownership by prescription and if the amendment was allowed, a valuable gut which has accrued to him by prescription would be lost by him. After this the arguments of tae learned counsel for the parties were heard on the question of' the amendment of the plaint. Mr. Said Muhammad Khan learned counsel for the applicants Fateh Muhammad and others argued that nowhere it was stated in the plaint by them that they were the reversioners of Mst. Sansari Begum. The plaint had not been carefully drafted and actually it was intended that the plaintiffs were claiming as reversioners of Makhan deceased husband of Mst. Sansari Begum and not through Mst. Sansari Begum who was a limited owner. It was further contended by him that for the adjudication of the real question at issue and in order to avoid multiplicity of suits it was necessary that amendment sought in good faith by the plaintiffs‑applicants may be allowed. In support of his conten tion he has cited Abdul Aziz v. The Multan Electric Supply Company Ltd. (P L D 1958 Lah. 614) and Muhammad Fakirullah Mia v. Bimalendra Nath Maitra and others (P L D 1961 Dacca 254). Mr. Muhammad Siddique Farooqi in reply has contended: (1) that the amendment sought by the plaintiffs‑applicants was inconsistent with the original stand taken by them in their plaint wherein they have claimed as reversioners of Mst. Sansari Begum and not that of Makhan, her deceased husband. (2) That they are not the reversioners of Mst. Sansari Begum and finding to that effect would result in an accrual of a valuable right to them, i.e. their adverse possession would have ripened into ownership by then. If the amendment is allowed they would be deprived of this valuable right which accrued to them by prescription. (3) That the application for amendment has been made with a delay of 10 years and is, therefore, mala fide. If the amendment is allowed the resulting loss to them cannot be compensated by award of any costs to them. In support of his contention he has cited Imam Ali Halsana and others v. Furkan Ali Mondal and others (P L D 1960 Dacca 3), A I R 1964 Mys. 56 and A I R 1964 Bom.

7. In this case the original suit for possession of the suit land was instituted by the plaintiffs‑applicants on 13‑8‑

58. After the entire trial had been completed and the case was fixed for arguments, a cross suit for a declaration that he had acquired the right of ownership by prescription in respect of the suit land was instituted by Muhammad Yaqub Khan defendant‑respondent on 20‑7‑

64. That suit was dismissed by the trial Court as a result of the judgment in the suit for possession of the applicants wherein it was held that Muhammad Yaqub Khan defendant‑respondent had failed to prove his adverse possession of the land. It would thus appear that there has been litigation between the parties since the last 10 years and the present application for amendment of the plaint has been made with considerable delay at the stage of the second appeal. Whether this delay disentitles the applicants from seeking the amendment of the plaint it is to be ascertained from the circum. stances appearing in the record. I have perused the original plaint in the suit for possession instituted by Fateh Muhammad Khan and others and I have no hesitation in agreeing with the contention of the learned counsel for the applicants that it is a vaguely drafted document from which it does not appear clearly whether the plaintiffs were claiming possession on the basis of title through Makhan husband of Mst. Sansari Begum or through Mst. Sansari Begum. I have also read the judgment of the learned trial Judge and that too indicates that the learned Judge had proceeded on the assumption that the plaintiffs were claiming the possession of the land as reversioners of Makhan who died in the Dogra Regime and whose landed property was inherited by Mst. Sansari Begum as his widow. I am, therefore, constrained to say that it was not only the vagueness of the plaint but also the carelessness of the trial Judge that an in appropriate issue had been framed from which it appeared that the plaintiffs were claiming possession of the land as reversioners of Mst. Sansari Begum. The plaintiffs, as would appear from the record, are the reversioners of Makhan deceased husband of Mst. Sansari Begum. It was through inadvertance of the Petition‑writer or the person who drafted the plaint that this fact could not be brought out in the plaint. They are now seeking to amend the plaint so that the real question at issue may be adjudicated upon. What they are after is a mere clari fication of the position so that future litigation between the parties may be avoided. They are not making a plea which can be called inconsistent with the original plea and moreover, they sire not trying to introduce a cause of action which is different from the one they have relied on in the original plaint. As such I do not see any justification to disallow the amendment sought by them. It is settled law that the object of allowing amendment is to get at the rights of the parties and to avoid multiplicity of suits where the dispute can be settled in the suit already instituted without unfairness or injustice to the other side amendment must be allowed. In A I R 1950 Ham. Prad. 12 it was held: "However, the necessity to amend may have arisen, leave to amend should always be given and at any stage in the proceedings in order to allow the real question at issue between the parties to be raised on the pleadings unless the party applying for leave has acted in bad faith or the amendment will cause some injury to the opposite‑party for which he cannot be fully compensated by costs or otherwise. In this case the party, i.e. the applicants, in my opinion, have not acted in bad faith. The mere fact that the application for amendment has been made with a delay of nearly 10 years does not for the reason stated above, indicate that the applicants knowingly allowed the case to proceed. The case was decided in their favour by the trial Court and the judgment and decree thus passed in his favour was upheld by the first appellate Court and the appeal filed by Muhammad Yaqub Khan, the present non‑applicant, was dismissed with costs. Naturally these concurrent findings of the two Courts below must have given them (applicants) the impression that there was nothing wrong with the original plaint filed by them. If they continued with the prosecution of the case up to the time of making the present application for amendment they cannot be blamed for it and this conduct of the applicants, in my opinion, cannot amount to a deliberate mistake or negligence on their part. They appear to have acted in good faith and the present application has been made by them in good faith for bringing the real matters in controversy at issue. The authorities cited by the learned counsel for Mohammad Yakub Khan, non‑applicant, do not appear to be on the point. On the other hand P L D 1958 Lah. 614 (627‑28) cited by the learned counsel for the applicants is on all fours with the present case. Mr. B. Z. Kaikaus, J. in that case has held:‑ "An amendment of the plaint is almost the right of a party when it relates to the cause of action on which the suit is based. Apart from exceptional considerations an amendment is refused only when it is not bona fide and the intention is merely to delay the case. If a plea could have been taken originally, one does not see why, if it is raised bona fide, it should not be allowed, unless it be that a question of limitation arises, the defendant having gained some valuable right which in the circumstances it may not be proper to deprive him of." In this case the plea, that the applicants were the reversioners of Makhan, could have been taken in the original suit. It has been raised bona fide and no question of accrual of any valuable right by lapse of time arises here. As such I would hold the it is a fit case in which amendment sought for should be allowed. It also follows from it that the plea being one which could be taken in the original suit cannot be held to be inconsistent with the original suit. In this very case B. Z. Kaikaus, J. has explained what amounts to an inconsistent plea. He has observed:‑

"Alternative grounds of title do not constitute inconsistent pleas. It is only where a person has to make two contradictory allegations of fact to support two pleas that the pleas are in consistent. If two pleas can be put in the same plaint and that plaint can be verified by a person without contradicting himself. There is no inconsistency in the pleas. That is the simple criterion. There would be inconsistent pleas if a person were to say, a document was a forgery, and were to aver in the same plaint that he executed it because he was threatened with injury. These pleas cannot, in fact, be put in a plaint at all, for the plaint has to be verified as correct and both the pleas cannot be correct." Now in this case the plaintiffs‑applicants have made con sistent pleas and not contradictory allegations of facts. In both the pleas, i.e. in the original plaint as well as in the application for amendment they are claiming as reversioners of Mst. Sansari Begum and also as reversioners of Makhan, her deceased husband. These pleas could be put in the same plaint and the plaint could be verified by them without contradicting themselves. As such the pleas now sought to be introduced in the plaint by way of amendment cannot be held to be incon sistent. As for the argument of Mr. Muhammad Siddique Farooqi, learned counsel for the non‑applicant that the applicants not being reversioners of Mst. Sansari Begum, their claim as such would fail and consequently the defendant non‑applicant would become owner of the suit land by prescription. I would say that this argument too has no force in it. This argument of the learned coun sel is entirely fallacious because if the amendment is allowed it will take effect from the date the original suit was instituted. In that case the adverse possession of the defendant‑non‑applicant would not ripen into ownership by prescription as the time between the death of Mst. Sansari Begum and the original plaint would be far less than 12 years. The other case relied on by the learned Counsel for the applicants, i.e. P L D 1961 Dacca 254 has also been perused by me and this too helps the case of the applicants. It was held in that case:‑ "There is no bar to allow an amendment in a proper case at the appellate stage. All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, So that full power of amendment must be enjoyed and should always be liberally exercised. Though such powers should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by special circumstances of the case. In such a case an amendment can rightly be allowed even at appellate stage." The present amendment as had been held above does not take away from the defendant‑non‑applicant a legal right which has accrued to him by lapse of time. The land in suit is in the possession of the defendant‑non‑applicant and if the amendment sought for is allowed and a retrial ordered in this case it cannot result in any loss to the defendant which cannot be compensated by costs. I would, therefore, hold that in this case the power of amendment should be liberally exercised. The net result of the above discussion is that there is every reason to accept the present application for amendment of the plaint. I would, therefore, accept the application for amendment of the plaint filed by the plaintiff‑applicants, set aside the judgment and decree of the Courts below and remand the case back to the trial Court with the direction that the trial Court shall allow the plaintiff-applicants to effect the amendments in the plaint sought by them and then proceed with the case according to law. In the circumstances of the case I would order that the applicants shall pay costs of Rs. 150 to the other party for the inconvenience the latter has suffered on account of the lengthy proceedings held in this case. Parties are directed to appear in the trial Court on 2‑12‑1968. A. E. Application accepted. Case remanded.