P L D 1973 Lahore 513 (PLP)

I have gone through the copy of the plaint as well as the sale deed which is on the record and found that description of the land was not only given according to number of Khatas and khasras but the area of the land was also given. The numbers of the khatas and area in the two documents coincided with one another and only a slight error or omission is in respect of khasra numbers. At the end of the plaint, there is a note that if any number of khata or khasra or any portion of the area given in the sale deed is omitted, due to forgetfulness, from the plaint, the same should also be deemed to be included in it. It is obvious that the learned trial Court has not considered the fact that the entire area sold has been shown in the plaint and khata numbers have also been correct shown and by way of abundant caution, the plaintiff has given the above note so that the suit may not, on account of any error, be deemed to suffer from the defect of partial pre‑emption. The learned trial Court, has, therefore, acted illegally and with material irregularity in the exercise of its jurisdiction by refusing to allow the amendment which was only a formal one, and the authority relied upon by the plaintiffs Le. Muhammad Irshad Khan v. Murad Khan (P L D 1965 Pesh. 225) was fully applicable. For this proposi tion, there is also further authority of the Privy Council and the High Court of West Pakistan reported in Charan Das and others v. Amir and others (A I R 1921 P C 50) and Mst. Fatima v. Sardaran (P L D 1956 Lab. 474). The contention of Mr. Muhammad All Zaidi that this was a belated application has no force because a belated application of defendant‑respondents Nos. 1 to 9 has been accepted by the learned trial Court for amendment of the written statement. Any way, this is not a sufficient ground for disallowing the amendment which according to Order VI, rule 17, C. P. C. could be allowed at any stage of the proceedings. In fact, the policy of the law in allowing an amendment necessary for the determination of the rights of the parties, is very liberal. In C. R. No. 509 of 1965, in a suit for pre‑emption the plaintiff‑petitioner had made an application for amendmen in order to enable him to add a new ground of attack, i.e. that he was a collateral of the vendor and this was dismissed on the ground that a new ground could not be allowed to be added after the expiry of the period of limitation. I have not been able to find out any authority for the proposition that a pre‑emptor cannot be allowed to add a new ground of superiority of his right of pre‑emption in the plaint after the expiry of the period of limitation. In fact, there is authority for the proposition that a new ground in support of the relief claimed cannot be said to alter the character of the suit and will as a general rule i.e allowed. It is also established that where in such case the amendment is allowed, it takes effect from the date when the suit was instituted. The learned trial Court has exercised its jurisdiction illegally and with material irregularity in this case by exercising its discretion in a capricious manner and contrarily to the principles established by the precedents of High Courts. In C. R. No. 239 of 1967, the facts are that the plaintiff respondent No. 5 filed a suit for declaration that he was allottee in possession of plot No. 1 (which was previously known as plot No. 1/13). Block A, measuring 6 kanals situated in Satellite Town Scheme No. II, Multan, popularly known Gulgasht Colony Scheme and the order of the Chairman., District Allotment Committee, Multsn (defendant‑respondent No.1) dated 1st December 1965, whereby the said plot was pooled together with Plot No. 1‑A (of an equal area of 6 kanals) of defendant respondents Nos. 3 and 4 and was split up into three plots of 4 kanals each out of which one plot was allotted to the present, petitioners, was void and ultra vines. The suit was resisted by the petitioner and respondents Nos. 3 and

4. As the: question, whether the plaintiff‑respondent No. 5 was entitled to 6 kanals or 4 kanals, was obviously involved, an application, for amendment of the written statement was made by defendant No. 3 (present petitioner) by which he wanted to add some pleas in the alternative in his written statement. It was alleged that after the evidence was recorded in the case, he had come to know that plots Nos. 1‑A and 1‑B were allotted by defendant‑respondent No. 1 originally with an area of 4 kanals each and the agreement Exh. D. 1 between plaintiff respondent No. 5 and defendant‑respondents Nos. 1 and 2, by which the plot of the plaintiff was shown as 6 kanals had been collusively obtained by concealment and suppression of the fact of alleged allotment on the basis of the area of 4 kanals for each plot. A compromise entered into between the plaintiff respondent No. 5 and defendant‑respondents Nos, 3 and 4 was also attacked as being collusive, fraudulent and Inoperative against the rights of the defendant‑petitioner. The petitioner, therefore, applied that he should be allowed to add the following two paragraphs as paras. Nos. 9 and 10 to the preliminary objections‑ "Para 9.‑‑If in any manner the plaintiff and defendants, Nos. 4 and 5 be deemed to be entitled to any portions off plots Nos. 1‑A and 1‑B, the agreements about the transfer of these plots by defendants Nos. 1 and 2 in favour of the plaintiff and defendants Nos. 4 and 5 were illegal, inoperative and void on account of fraud and misrepresentation." Para. 10.‑"The compromise between the plaintiff and defendants Nos. 4 and 5 was collusive and according to law was void and ineffective." This application was rejected by the learned trial Court by order dated 4th April 1967, on the grounds that‑ (1) the real dispute between the plaintiff and defen dants Nos. 4 and 5 was as to the exact plot allotted to the plaintiff and the area of the plots was not at all disputed ; (2) the matter in controversy was the legality of the order of the Chairman, District Allotment Committee, regarding the splitting up of the plot of the plaintiff and defendants Nos. 4 and 5 Into three parts ; (3) The absence of defendants Nos.1 and 2 coupled with the statement of Government Pleader not to contest the suit of the plaintiff bore the implication that the allegation of the plaintiff as to the illegality of the order dated 1st December 1965, was not intended to be contested by those defendants ; (4) It is not denied that so far the Town Planner who is the only proper authority to demarcate, has not sanctioned the splitting up of the plots into three parts ; and (5) The locus stand of defendant No. 3 to challenge the area of the plot allotted to the plaintiffs and defendants Nos. 4 and 5 was open to doubt." It is apparent from this order that the learned Judge has been partly misled about the true scope of the suit and partly he has taken into consideration matters not at all relevant for the decision of the application under Order VI, rule 17, Civil P. C. The learned counsel for the respondent also did not at all, advert to the other ground but submitted that the revision was not competent as the area of the plot was not in, dispute in the suit. According to him, the nature of the suit was basically that of a challenge against the authority of defendants Nos. I and 2 to pool the property and divide it between three persons and if this is accepted the question, whether the area of plaintiff's plot was 6 kanals or not, was not relevant. According to the learned counsel this will amount to changing the nature of the defence as the basic enquiry in case amendment is allowed, will be regarding the area to which the plaintiff will be found entitled and not regarding. the competence of the authorities to pass the order Impugned in suit. This plea is not correct. The basis of the plaintiff's claim is that the plot originally allotted to him bore an area of 6 kanals. If this is proved to be incorrect, and the area originally allotted is found to be 4 kanals only the plaintiff's locus stands to file the suit may itself be open to question. In this view of the matter, it cannot be said the question of the area was not relevant to the scope of the suit. The petitioner wanted only to add a new ground which had come to his knowledge, during the pendency of the suit, from the evidence that had come on record, and the amendment was necessary for the purpose of determining the real question in controversy between the parties. The learned trial Court has acted illegally and with material irregularity in the exercise of its jurisdiction by misconceiving the nature of the suit as well as by taking into consideration extraneous matters for dismissing the petition for amendment. In C. R. No. 593 of 1967, a bus‑stand was proposed to be leased on 22nd June 1966, with effect from 1st July 1966 to 30th June 1967. An auction of this lease was held and the last bid in auction was Rs. 29,

000. The petitioner being the highest bidder deposited a sum of Rs. 7,750 including Rs. 500 as security. It is alleged that possession was not given and this lease was again auctioned to Noor Muhammad and others. The Municipal Committee claimed Rs. 21,250 from the petitioners which appears to be the difference between the sum for which the auction was held, i.e. Rs. 29,000 and the amount paid i.e., Rs. 7,

750. On 1st December 1966, the petitioner filed a suit for recovery alleging that the agreement had become void. A prayer for permanent injunction was also made restraining the respondent from recovering a sum of Rs. 1,250 from the petitioner. In the written statement, it was pleaded by the respondent that the plaintiff had not executed the agreement. An application for permission to amend the plaint was submitted by the petitioner on the 16th September 1967, to enable him to plead that no formal agreement was executed and the respondent could not recover any amount from the petitioner as it was respondent's own case that no agreement was executed and according to law agreement which was not formally executed could be acted upon: The learned trial Court dismissed this application by order dated 19th December 1967, on the ground the petitioner had based his suit on an agreement but he was now pleading absence of agreement and thus wanted to change the nature of the suit The learned counsel for the petitioner contended, and rightly' so in my opinion, that this did not change the nature of the suit but only amounted to the addition of a fresh ground or an alternative plea In the plaint. He relied upon Rahmanullah Khan v. Shuja Khan (P L D 1968 Pesh. 67) in which it was held that a fresh ground, can be added by way of amendment if the trial has not commenced provided the amendment goes to the root of the case. An authority for this proposition is hardly required Order VI. rule 17, C. P. C. itself says that 3n amendment should be allowed for the determination of the real question in controversy between the parties. The real question is whether the plaintiff is entitled to recover Rs. 7,750 from the defendant respondent and whether the defendant‑respondent was not entitled to recover a sum of Rs. 21,250 from the plaintiff. The question whether, in fact, there was an agreement or not, as contemplated by law would certainly be a material circumstances for determining this controversy. The nature of the suit is not in any way changed by the proposed amendment. The learned trial Court has, therefore, exercised its jurisdiction Illegally and with material irregularity by misconceiving the exact scope of the suit and by failing to consider that the plea amounted to an alternative plea only. All these cases are liable to be accepted but before passing any final order, it is necessary to consider an objection regarding maintainability of the revision petition against the order refusing to allow amendment. This objection was taken in C. R. No. 511 of 1966 and C. R. No. 612 of 1966 by Mr. Muhammad Ali Zaidi, counsel for the respondent in those cases on the ground that such an order does not amount to 'case decided' within the meaning of section 115 of the Civil P. C. Reliance was placed on an observation of their Lordships of the Supreme Court in Chaudhry Ahmad Din v. Australasia Bank Ltd., Bhalwal (1970 S C M R 507). In that case, the plaintiff had been given permis sion to amend the plaint and this order was challenged by a revision petition which was dismissed by the High Court. A petition for special leave to appeal filed against this revisional order was dismissed on the ground that their Lordships were satisfied that the character of suit had not been changed by the amendment and moreover, it was not a case decided and, therefore, the High Court was not competent to entertain the revision petition. The orders in the other three cases were also reserved by me in order to consider the question of maintainability of the revision petition in those cases. The above‑mentioned case decided by the Supreme Court was distinguished by the learned counsel for the petitioner in C. R. No. 511 of 1966 and C. R. No. 612 of 1966 as being a case where amendment was allowed, the present cases being of the converse nature, as in all these cases the trial Court had disallowed the amendment prayed for. The points for considera tion are‑ (1) Whether this observation embraces the present category of cases ; and (2) Whether the decision applies to all cases where amendment has been allowed. To arrive at a correct conclusion on these propositions it will be necessary to find out the true intent of the above observation, in the light of decided cases. For a long time, in fact since 1877 when "the provision empowering the High Court to call for the record of a "case", and to pass such orders as it may think fit, if the Court by which the "case" was decided appear to have conducted itself in certain specified ways," was Introduced, the exact meaning and scope of the word "case" has been the subject‑matter of divergence of opinion between different High Courts in the Indian sub‑continent and sometimes even between different Judges of the same High Court. According to one Interpretation word "case" was held to be wide enough to include and embrace not only the order finally disposing of a suit or any other it but also an interlocutory order on a question which had been the subject of controversy between the parties. The second view favoured a narrower interpretation according to which the word "case", in the case of a suit, did not include a part or branch of the suit but meant the whole suit and as sue interlocutory orders passed during the pendency of the suit were held not to be revisable until the final decision of the suit. Yet another view, which was an intermediate one between these two extremes, was that it is not a case unless its subject‑matter can be regarded as something distinct end in a sense independent from the main suit, and the termination of that proceeding should be somewhat different from mere orders passed in the ordinary trial of the suit itself. A Full Bench of the Lahore High Court consisting of seven Judges considered this matter in case of Bibi Gurdevi v. Ch. Muhammad Bakhsh and others (A I R 1943 Lah. 65) and the entire case‑law with particular reference to the above‑mentioned three views was reviewed and the wide interpretation was favoured and it was held that 'case decided' does not mean in the case of suit, decision of the whole suit but includes within its scops even the decision on a branch of a suit. But any interlocutory order would also include purely formal orders such as those relating to adjournment or summoning of a witness and the question cropped up as to what is the criterion for determining whether a particular interlocutory order is a case or not. In his exhaustive judgment, Bhide, J., posed the following question :‑ "Is it the importance of the order from the standpoint of the parties or the likelihood of grave injustice and irreparable loss in case no revision is allowed or is something else?" and considered some suggestions and possibilities. One such suggestion was that some test may be evolved in course of time from decisions given in individual case, but this appeared to be unsatisfactory to the learned Judge as for the last 20 years since the Full Bench decisions in 5 Lah. 288 and 43 All. 564 were given, the matter was still in a state of uncertainty. After considering the wider and the narrower interpretations it was observed "that some of the conditions necessary for the exercise of the revisional jurisdiction are expressly stated in section 115, C. P. C. but there are others which are implied and flow from the extraordinary character of the revisional jurisdiction." The following conclusion was then arrived at :‑ I am inclined to think that the true test for deciding whether a particular interlocutory order should or should not be looked upon as a 'case' for the purpose of section 115, Civil P. C., is to be deduced not from the meaning of the word 'case', but from the proper scope and limits of the revisional jurisdiction conferred upon the High Court by that section. From the standpoint of language, pure and simple, there seems to be no good reason why one branch of a suit should be held to be a 'case but not another and the word may include any interlocutory order. This does not, of course, mean that purely formal orders such as those relating to an adjournment or the summoning of a witness, etc., could be looked upon as 'cases'. But when a decision relates to some matter in controversy affecting the rights of the parties. I do not see why it should not be looked upon as a `case'. This wide interpretation of the word 'case' is not, I think, likely to lead to inconvenience in practice as the field of interlocutory orders subject to revision will be extremely narrow in view of the express and implied conditions necessary for the exercise of the revisional jurisdiction. Lal Chand‑Mangal Chand Sen v. Behari Lal‑Mehar Chand, and Buddhu Lal v. Mewa Ram. So the real tests to determine whether particular interlocutory order is a case decided are (1) the proper scope and limit of the revisional jurisdiction conferred upon the High Court by section 115 and (2) relatability of the decision to some matter in controversy affecting the rights of the parties as distinguished from purely formal orders. The same view was taken by a majority of the Full Bench, again consisting of 7 Judges, in S. Zafar Ahmad v. Abdul Khaliq (P L D 1964 Kar. 149) though the language used in the judgment is different. After considering (1) that the revisional jurisdiction can be exercised only if the case falls under either of the three clauses of section 115, C. P. C. and it is not a power to substitute what appears to the revisional Court to be the correct view of the merits of the case (2) that in spite of the case falling within the three clauses given in section 115, C. P. C. the Court is not bound to act particularly in cases falling under clause (b) or the second part of clause (c), if the Court is of the opinion that no injustice has been done; and after laying down certain broad principles for the elimination of delays in the disposal of revision petitions, it was observed that if the interference with the progress of cases may thus be eliminated or at least considerably minimised, the main argument for thinking that the scope of section 115 was intended to be confined to the stage at which the whole cause had been, finally determined would no longer have the force that it seems to have today. The learned Chief Justice then considered, three other reasons for considering the provisions of section 115 as enabling the High Court to correct errors of the kind mentioned in clauses (a), (b) and (c), as and when they occur. One reason was that the word "case" was intended to cover any state of facts juridically determined and not necessarily the whole cause or matter to dispute. Support for this was sought from the decisions in Hanover Fire Insurance Co. v. Murlidhar Banechand (P L D 1958 S C (Pak.) 138) and Levant Shipping Co. v. Pakistan (P L D 1960 S C 341) where the Supreme Court had dealt with the question arising out of the revision petitions before the High Court (in these cases) on the footing that those orders were not made without jurisdiction although in both these cases the revisions were the outcome of decisions on interlocutory matters. The second ground was that the learned Judges who have held that the word "case" when used in relation to a suit, must be confined to the suit or other proceedings itself and must not be regarded as applicable to any part of that suit or to any branch of that suit have found it necessary to draw a distinction between the suit proper which concerns the claims in dispute and those other connected proceedings which relate to matters other than the claim itself. If the emphasis on jurisdiction i.e., the capacity of the Court to act in the manner in which it is acting, as distinct from the decision that it arrives at, on the merits of the case, is steadily and constantly kept in view, most of the difficulties to overcome which that distinction is drawn, are automatically resolved and the need for drawing' a distinction between one proceeding connected with the! suit and calling it a case and another proceeding connected with the suit and refusing to call it a case largely) disappears." These two grounds are exact repetition of the above criteria laid down by Bhide, H. the statement of law in Gurdevi's case was approved by the Supreme Court of Pakistan in Umer Dad Khan and others v. Tila Muhammad Khan (P L D 1970 SC 288). There can be no doubt that whenever an application for amendment is submitted, it raises a controversy between the parties on the question whether there are sufficient grounds for allowing the amendment or not; this controversy affects the rights of the parties and the decision on the question 161 arrived at by the Court after the state of facts are juridically considered. If this had been the only test laid down in Gurdevi's case a decision of an application for amendent whether allowing it or declining to allow it, would always be within the scope of the words "case decided". But it' the second and more important criterion is applied every order of on an amendment application will not be deemed to be case. On the other hand, only those orders will be embraced by the word "case" which are covered by the conditions laid down in clauses (a), (b) and/or (c) of section 115, Civil P. C. The Supreme Courts authority in Ch. Ahmad Din v. Australasia Bank Ltd., Bhalwal relied upon by Mr. Muhammad Ali Zaidi can be interpreted only In the light of the dictum laid down in Gurdevi's case which has been approved by the Supreme Court also and it could not be deemed to lay down a law that no order of acceptance of amendment petition is a case. I find support for this proposition also from the fact that before holding that the order in 'that case did not amount to a case decided their Lordships had seen whether, the amendment was rightly allowed and were satisfied that the character of the suit had not been changed by it. 1t is worth noting that two of the learned Judges who were a party to the judgment. In the case of Ch. Ahmad Din v. Australasia Bank Ltd., Bhalwal, were also, as Judges of the High Court as their Lordships there were party to the Full Bench decision in S. Zafar Ahmad v. Abdul Khaliq and similarly two of them were party to the judgment in the Supreme Court's case of Umar Dad Khan v. Tila Muhammad Khan (in which the dictum in Gurdevi's case was approved). This is sufficient to dispose of the objection raised by Mr. Muhammad Ali Zaidi but I may briefly notice the distinction drawn between the present category of cases and the case Ch. Ahmad Din v. Australasia Bank Ltd., Bhalwal, by Ch. Aziz Ahmad Bajwa the learned counsel for the petitioners in C. R. No. 511 and C. R. 612 of 1966. The argument of Mr. Bajwa was that there was distinction between an order of acceptance and an order rejecting amendment application. According to this submission, the acceptance may not be a case but the refusal to accept the amendment application is a case decided. There are some authorities for this proposition. In Kishen Lai Bibo v. Ram Chandra (A I R 1933 All. 374) the learned Single Judge was of the view that refusal to allow amendment amounts to a case decided as it does virtually shut‑out a part of the plaintiff's claim and the effect of the order is definitely to debar the plaintiff from proving a part of the claim. Earlier in Sumatra Devi v. Hazari Lai (A I R 1930 All. 758) Niamutullah, J., had also taken the same view and he observed that I do not express any opinion as regards the question whether if an application for leave to sue as a pauper is granted, a definite proceeding should be considered to terminate with the order granting such application and as to amount to a case having been decided; but if the application for leave to sue as a pauper is rejected, I entertain no doubt that a definite case should be deemed to have ended with the order of the Court rejecting the application to sue as a pauper, because if the court‑fee is not paid subsequently, the claim of the pauper cannot be proceeded with and if a revision is otherwise entertained it cannot be contended that a case has not been decided. This statement of law was approved by a Division Bench authority in Rurmal Ram Nath v. Kapil Man Misir and others (A I R 1935 All. 353) where Collister, J., observed that "where a plaint is amended, the amendment appears on the face of the record and the suit proceeds accordingly, but when the amendment is refused, there is a termination of "case" and as it were a chapter of the proceedings is closed. The plaintiff by claiming a right to amend his plaint loses a "case" before the Court and by the Court's order of refusal "the case is decided", the plaintiff thereby being barred from pursuing that portion of his claim." In a D. B. authority Sunder Lai v. Mst. Razia Begum (A I R 1934 All. 785) the question was of a converse nature as the revision petition was directed against an order allowing amendment and the case in Kishen Lai Bibo v. Ram Chandra was distinguished on the ground that that was a case of refusal to allow amendment. In Mst. Suraj Pali v. Ariya Pertinidhi Sabha (A I R 1936 All. 686) however, although it was held that the dismissal of an application for amendment of pleading is not a case decided as it was an interlocutory order, It was observed that when a case is started on an application for amendment the case would be decided when final orders on that application are passed no matter whether the application is allowed or disallowed and there would be an anomaly in holding that if the application is allowed, the case is not decided, but if it is not allowed the case is decided. I am in perfect agreement with this proposition that in the context of the present question, fn essence, there is no distinction between a case where application of amendment is allowed and a case where it is not so allowed. AS held earlier in both cases, a controversy is resolved by a decision by judicial approach. But neither an order rejecting the application for amendment can in all cases amount to a case decided within the meaning of section 115, Civil P. C. nor an order accepting the petition can so amount in all cases. The test laid down in Gurdevi's case has to be applied to the facts of each particular case whether it be of acceptance of the amendment application or of its rejection. All the revision petitions are, therefore] accepted and the impugned orders refusing amendment of the pleadings are set aside and the respective applications for amendment are allowed with no order as to costs. S.A.H. Revision accepted.