1998 PLP 461 (MLD)

S. 42

Civil Procedure Code (V of 1908), O.VI, R. 17

Amendment of plaint

Application for amendment filed before High Court during hearing of revision petition

Effect

Once substantial question in dispute between parties stood decided, verdict of title of party was given by Court of competent jurisdiction and precious right stood accrued to opposite-party, plaintiff could not turn round and seek amendment of plaint, muchless, amendment to ask for partition of suit property when every title to such property was determined in the negative. Safirullah Khan for Petitioners. Muhammad Asif and Haji Abdur Rashid for Respondents. Date of hearing: 24th October, 1997. Adam Khan son of Muhammad Akbar Khan resident of Kagga Wala, Peshawar brought a suit against Dilbar Khan son of Sanobar Khan and 11 others for a declaration to the effect that he is the owner of house detailed in the plaint and situated in Kagga Wala on the basis of having inherited the same from Mst. Sarwara daughter of Ghaffar who was the original owner of the house. The plaintiff in his suit dated 10-5-1986 claimed to be the sole heir of the propositus.

2. Defendants Nos. 10 to 12, namely, Banat, Habibur Rehman and Mst. Razmina, sons and widow respectively of Burhan contested the suit separately from the remaining Defendants, on numerous legal and factual grounds claiming, inter alia, that they were the legal heirs of Mst. Sarwara while the plaintiff was not, that they had purchased the suit house from Mst. Sarwara vide registered deed No.2554 attested on 24-3-1983 and further that the claim having already been decided in Suit No.455/1 instituted on 28-10-1947 and decided on 9-1-1948, is seriously hit by the principle of res judicata. Defendants Nos. l to 9 also contested the suit and claimed adverse possession in their separate written statements.

3. After a contest between the parties, the last judgment given by the trial Court on 17-7-1989 entailed upon the dismissal of plaintiff's suit. It was held that the plaintiff had no title, that the house was purchased by Defendants Nos. 10 to 12 through registered deed dated 24-3-1983 and was badly hit by the principle of res judicata. Adam Khan died during the pendency of the suit and his legal heirs filed an appeal which also was dismissed by learned District Judge, Peshawar on 19-5-1991, partly agreeing with the trial Court to the effect that the sale through registered deed was genuine, and that the plaintiff Adam Khan had failed to prove title as well as his relationship with the propositus but that the suit was not hit by the principle of res judicata, as held by the trial Court. Amanullah etc. have challenged such findings before this Court under section 115 of the C.P.C.

4. I have heard Mr. Safeerullah Khan on behalf of the petitioners, Mr. Muhammad Asif and Abdur Rashid Khan, advocates for the respondents quite at length and observed that the learned counsel for the petitioners had nothing strong and sound to put-forth. It was rightly held by both the Courts below, that the registered deed dated 24-3-1983 was a genuine document and was sufficiently proved by the defendants concerned and further that this deed was not even challenged in the plaint by the plaintiff. Obviously, this alone was a sufficient ground to dislodge the plaintiff.

5. Coming to the question of res judicata, I believe that the observations of the learned District Judge were not well founded when he reasoned that the parties to the former suit were different from the parties to the present suit. Exh.P.W.2/1. is the certified copy on file, of the previous judgment dated 9-1-1948 in Suit No.455/1 passed by Sub-Judge 2nd Class Peshawar. That was a suit filed by the present Adam Khan against Sanobar, Jaffar, Burhan and Mst. Sarwara. The present defendants are all legal heirs of the aforesaid defendants in the previous suit and, hence, there is no difference of parties between the two suits. The subject matter of dispute is the same house situated in village Kagga Wala. The claim of Adam Khan in the former suit was dismissed and now after the death of Mst. Sarwara he happened to bring the suit by claiming the same title, but now through inheritance. In these circumstances, I see no legal or factual grounds to interfere with the ultimate conclusion arrived at by both the Courts below concurrently.

6. Faced with the situation in hand, the learned counsel for the petitioners, with reference to his CM No.365 of 1991, prayed for a permission to amend the plaint in order to include a prayer for partition. By now, it stands settled that both the Courts below have rightly denied the title of the plaintiff in the suit house and hence the question of asking for partition is totally out of place.

7. Once a substantial question in dispute between the parties stands decided; once a verdict qua title of a party stands given by a Court of competent jurisdiction and; once a precious right stands accrued to the opposite party; the plaintiff cannot turn around and seek amendment, as such, much less an amendment to ask for partition when the very. title in property is determined in the negative.

8. Consequently, the amendment sought to bring a claim for partition is disallowed and the revision petition is hereby dismissed alongwith CM No.365 of 1991. No order as to costs. A.A./2246/P Revision dismissed.