P L D 2005 Peshawar 238 (PLP)

MUHAMMAD RAZA KHAN, J.--A Civil Suit No.464/1 was filed by Syed Mehmood Ali Qadri on 27-6:1998 for a declaration to the effect that he and the pro forma defendants were owners of 439 Kanals, 19 Marlas land (as described in the-head note of the plaint) through a registered sale-deed dated 22-1-1989 and that Mutation No.100 dated 8-1-1989 in favour of the defendant No.5 by defendant No.4 was fraudulent, without jurisdiction, ineffective on the rights of the plaintiff and pro forma defendants and therefore, void. A prayer for injunction as consequential relief and in the alternative, for possession was also made. A similar Suit No.465/1 was also filed by Abdur Rehman etc. (the pro forma defendants of the Suit No.464/1) with the same prayers.

2. These suits were contested by the defendants. The defendant No.2 namely Bahauddin Bhai vide his written statement dated 25-7-1989 stated that the said defendant No.2 had appointed defendant No.3 as his general attorney but the power of attorney was revoked and it was also stated therein that the petitioner had earlier filed a review application relating to Mutation No.100 dated 1-4-1989 but he" has not referred to any sale transaction.

3. A application was moved on 23-1-2003 for the amendment of plaint which was rejected on 21-4-2003 and a revision petition was also dismissed on 7-7-2003. Hence this Constitutional petition. The plaintiff Syed Mehmood Ali Qadri has expired in the meanwhile and his legal heirs pursued the present writ petition. Another similar Petition No.121/2003 was filed by Abdur Rehman etc. (the pro forma defendants in suit No.464/1 and plaintiffs in Suit No.465/1). Both these petitions are being decided through this common judgment.

4. The learned counsel for the petitioner argued that pleadings can be amended at any stage of hearing and the rejection of application for the amendment of plaint amounted to refusal to exercise jurisdiction vested in both the Courts below.

5. The learned counsel for the contesting respondents argued that the predecessor of the petitioners knew about the revocation of power of attorney of defendant No.3 and he had already challenged the attestation of Mutation No.100 before the relevant forum but he did not mention any sale agreement or a registered deed in his favour. He contended that both the Courts below have properly exercised jurisdiction and refused to allow the amendment which was proposed after inordinate delay merely to prolong the litigation.

6. Rule 17 of Order VI, C.P.C reads:-- "

17. Amendment of pleadings.

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." The plain reading of the said Rule will clearly highlight the intention of the law that the amendment of pleadings can be allowed to meet the ends of justice and for the determination of real question in controversy between the parties. It is correct that the said Rule provides for ample discretion with the Court to allow the amendment of plaint or written statement at any stage of proceedings but this discretion has to be exercised judiciously as has been done in this case. The exercise of the said discretion has been qualified with phrase that the purpose of such amendment should be to determine the basis of the dispute. This provision is invoked where there are "apprehensions of multiplicity of suits," as held in 1993 SCMR

593. The amendment can be allowed "for the purpose of furthering the ends of justice" (PLJ 1987 SC 617(sic)) and so that "the interest of substantial justice should be advanced" (1989 SCMR 732). The amendments are also allowed in the cases of a clerical error or bona fide wrong description of property (1986 SCMR 1488), It was also held that if a legal plea is sought to be raised which will go to the root of the case, the amendment may be allowed (1996 SCMR 1858). Similarly, if the earlier pleadings were faulty due to defective drafting, the amendment can be allowed keeping in view the principle that a party should not be penalized for the wrong of others, (1993 SCMR 2289). These are some of the precedents in the galaxy of cases where the amendment is allowed to meet the ends of justice even at the appellate stage. However if the above criteria, justifying the amendment, is not satisfied, the amendment of pleadings may result injustice to a, party which is never permissible by the law.

7. In the case in hand, the original suits were filed on 27-6-1989 and, despite the arrival of its 17th anniversary shortly, the suit is still lingering in the original Court due to the misuse of the process of law. The written statement was filed on 25-7-1989 i.e. within one month of the institution of suit and the ground, on which the amendment is sought, was clearly stated in the written statement not once but three times. The plaintiff kept quiet on this subject for almost 13-1/2 years and for the first time moved the application for amendment of plaint on 23-1-2003 and thereafter the proceedings are diverted towards the revisional and Constitutional fora and a further period of 2-1/2 years has elapsed. This is extremely unfortunate that one of the parties is able to delay the entire machinery by moving a frivolous application. The law as well as interpretation thereof has never intended that such frivolous attempt of prolonging in the civil litigation indefinitely may be encouraged. In PLD 1985 SC 345, PLD 1986 SC(AJ&K) 98 and 1998 MLD 1381 it was clearly laid down that the request for the amendment of the pleadings must be refused where the application for amendment is mala fide. Not only that the present application for amendment was based on a ground that was already in the knowledge of the petitioners more than 13 years prior to the date of application but even the original controversy between the parties indicated that the registered deed was allegedly executed on 22-1-1989 where the property had already been transferred through Mutation No. 100 fourteen days prior to the said registered deed and the registration of the deed by the defendant No:3, the alleged attorney of the defendant No.2 (the owner), stood revoked a couple of months earlier. This even raises doubts about the bona fides of the original suit as well. 'The learned counsel for the petitioners argued that the power of attorney in favour of the defendant No.3 was irrevocable and therefore, this revocation was not legal. When asked to quote any provision of law supporting the-concept of "irrevocable power of attorney", the learned counsel had no answer. Power of attorney is merely an instrument of the appointment of an agent to act on behalf' of the principal. Such instrument can be revoked any time by the principal at this will and in certain cases, like death and insolvency, the power of attorney is automatically revoked. Even during the currency of a valid power of attorney, the principal cannot be denied the rights of his personal participation. It is identical to the concept of agency where the agent merely represents the principal but the rights and powers of the principal are never abridge or withdrawn by the appointment of an agent.

8. The instruments of power of attorney have been frequently misused to deprive the innocent citizens of their valuable money by exercising the authority which already stands revoked. Through the prevalent misconceived term of "irrevocable power of attorney", the instrument is normally used as alternative to the regular transfer deed whereby on the one hand, the Governments is defrauded by avoiding the stamp duty etc. on regular sale-deeds and on the other, such instrument is also used in cases where transfer is generally not permitted under a law or policy. Thus the Government has to give an urgent thought for regulating the power of attorney in accordance with the changing needs of the day and avoid misuse of the instruments to the detriment of the citizens as well as the Government.

9. Since the petition for amendment of the plaint was made more than 13 year after the date of knowledge of the fact that was intended to be introduced through amendment and the matter was being delayed for almost 1-1/2 decades, therefore, the application for amendment was mala fide and frivolous and has been rightly declined by the Courts below.

10. The present constitutional petitions are without merit which are hereby dismissed with cost of Rs.10,000 (Rupees ten thousands) each which must be paid by the petitioners to the respondents before further step in the proceedings before the learned trial Court. H.B.T./463/P Petitions dismissed.