1997 PLP 2538 (MLD)

"(1) Whether the defendant illegally took over possession of the suit property on 6‑2‑1986 from the plaintiff and if so with what effect? OPP (2) Whether the suit is time‑barred? OPD (3) Whether the description of the suit property is incorrect? OPD (4) Whether the defendant is entitled to special costs under section 35‑A of C.P.C.? OPD (5) Relief. The parties completed their evidence on these issues on 15‑10‑1989. The suit remained at arguments stage for petty long time for the reasons not ascertainable from the present record. The respondent No.2 on 5‑6‑1991 moved application for amendment of the written statement. The petitioner contested the application. The trial Court after hearing the arguments dismissed the same vide order dated 14‑9‑1991, which was assailed through a revision petition before the respondent. No.1, who accepted the same vide order dated 3‑5‑1992. Now this Constitutional petition, which was admitted to hearing on 14‑7‑1992 and notice was issued to the respondents: The respondent No.2 alone has appeared and contested the petition while respondent No. l is proceeded ex parte.

2. The learned counsel for the petitioners argued that the petitioners have filed suit under section 9 of the Specific Relief Act and against their forcible dispossession while through amendment respondent No.2 was allowed to take up the plea that the respondent has been transferred adjacent land of the Committee, therefore, decree if passed would not be executable. It is added that the amendment sought was beyond the pale of the suit, therefore, the order of respondent No. l is bad in law. The learned counsel in this behalf has referred to Nawab Haji Muhammad Dawood Khan and others v. Muhammad Usman Ghani and others (1985 CLC 2309), Messrs A.R. Muhammad Siddique v. The Saifee High School Board (1983 CLC 507) and Muhammad Rafique v. Muhammad (1989 CLC 1318). It is added that in any case the subsequent events were not relevant and should have been ignored. In this behalf, the learned counsel has relied on the judgment of Hon'ble Supreme Court reported as Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698).

3. On the other hand, the learned counsel for respondent No.2 argued that the amendment was sought as abundant caution and the purpose was just to safeguard the rights acquired by the defendant in the adjacent land. It is submitted that the writ petition is not competent against order passed in revision and particularly when it is an interlocutory order. In this behalf, the learned counsel has relied on Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970), Ghulam Hussain and another v. Malik Shahbaz Khan and another (1985 SCMR 1925) and Noor Muhammad v. Sarwar Khan and 2‑others (PLD 1985 SC 131) and also referred to Muhammad Zahoor and another v. Lal Muhammad and 2 others (1988 SCMR 322).

4. The learned counsel for the petitioners while summing up the arguments submitted that the earlier view as to the competency of writ petition has been modified by the Hon'ble Supreme Court as is clear from the judgment reported as Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 SC 65).

5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The learned counsel for, the respondent No.2 has raised a preliminary objection as to the competency of the writ petition. The Hon'ble Supreme Court examined the effect of its judgment in Noor Muhammad's case (PLD 1985 SC 131) and held as under:‑‑ "

9. The effect of the judgment given by this Court in Noor Muhammad's case, on the basis of which leave to appeal was granted, is not that a Constitution petition is in no case permissible whatever the nature of the defect in the proceedings before the District Judge be, but that a mere illegality committed with jurisdiction shall not be a ground for entertaining a Constitution petition..."

6. Now coming to the merits. The amendment sought was beyond the scope of suit under section 9 of the Specific Relief Act. The trial Court while dismissing the application held as under:‑‑ "

5. Amendment is generally allowed, where it is necessary for the purpose of determining the real questions in controversy between the parties. The amendment sought is not necessary rather is irrelevant, for determining the real question in controversy and is a usual delaying tactics by the applicant to prolong litigation." There is nothing wrong with these findings. Respondent No.2 failed to make out a case for interference in revisional jurisdiction but respondent No. 1 ignored the legal and most important aspect altogether while exercising revisional jurisdiction and accepted the petition. If looked from this angle the order of the respondent No. 1 is without jurisdiction.

7. The upshot of the above discussion is that the impugned order of respondent No. 1 dated 3‑5‑1992 is set aside by accepting this writ petition with costs. The parties are directed to appear before the trial Court on 17‑10‑1995 while the trial Court is directed to decide the suit expeditiously and in any case by 23rd December, 1995 and submit compliance report to the Additional Registrar of this Court. H.B.T./M‑2644/L??????????????????????????????????????????????????????????????????? Petition accepted.