P L D 1962 (W (PLP)

FAIZULLAH, J.‑For the purposes of this appeal, the following admitted statement of fact would suffice : Ata Muhammad brought a suit giving rise to this Regular Second Appeal, against Sardar Shah defendant (since dead) for the possession of 36 Kanals 5 Marlas of agricultural land situated in Village Garhi Awan. The plaintiff's claim, as made out in the plaint, was that he was formerly an occupancy tenant of the land in suit and had become an owner of the same by depositing compensation under section 114 of the Punjab Tenancy Act, as amended, and that a mutation given effect to the transfer of the proprietary rights to him, had been duly given effect to in the revenue records. It was alleged that Sardar Shah defendant had taken wrongfully the possession of the land about a year before the institution of the suit and had got fictitious entries made in the revenue papers showing him as not paying any malkana on account of beradri.

2. Syed Sardar Shah resisted the plaintiff's suit by pleading inter alia that he had been in possession of the land as owner since 19?8‑39, and before him, his brother Ghulam alias Game Shah had been in possession of the land and that the suit was beyond time. The suit was decreed by Senior Civil Judge, Gujranwala. On appeal to the District Judge, the case was remanded with a direction that fresh Issues should be settled in the case as indicated by him in the order of remand. After the remand, the following issues were settled in the suit by the learned Senior Civil Judge, Gujranwala: ‑ (1) Was it open to the plaintiff, in face of the allegations to the contrary in para. No. 2 of the plaint, to allege that the defendant's possession had commenced with his permission as a sub‑tenant or a co‑tenant, and had been converted into adverse possession only a year before the suit ? (2) Had the plaintiff been arranging for cultivation of the land in suit and for payment of the rent thereof to the land lords till within a year of the extinguishments of the occupancy rights under section 114 of the Tenancy Act ? (3) If issue No. 2 is found in the negative, had the plaintiff any subsisting occupancy rights at the time of coming into force of the Punjab Tenancy (Amendment) Act of 1952 ? (4) If issue No. 3 is found in the negative, could the plaintiff acquire any proprietary rights in the land by paying compensa tion as prescribed under the said Act ? (5) If Issues Nos. 1 and 2 are found in the affirmative, had the defendant or his deceased brother Game Shah, been cultivating the land with the plaintiff's permission as his sub‑tenants or co‑tenants ? (6) If issue No. 5 is found in the affirmative could the defendant plead adverse possession against the plaintiff ? If so, since when his possession became adverse ? (7) Could the defendant acquire ownership of the land by adverse possession when the land was subject to occupancy rights of the plaintiff ? (8) Could the defendant acquire occupancy rights by adverse possession when the transfer of the occupancy rights without the landlord's consent was prohibited under the law ? (9) If issues Nos. 2 and 3 are found in the affirmative or issues Nos. 7 and 8 are found in the negative, was the plaintiff not entitled to recover possession of the land in suit ? (10) If issues Nos. 1, 2 and 5 are found In the affirmative, was the suit time‑barred ? (I1) Could the present defendant tack the possession of his brother Game Shah to his own possession ? (12) If any of the issues, 1, 2 or 5 is found in the negative, was the suit within time ? (13) Relief. Mr. Sher Muhammad Khan Sial, Senior Civil Judge, Gujranwala, by his order dated the 30th of September 1957, decreed the plaintiff's suit with costs. Issue No. 1 was found in favour of the plaintiff and with the following observation: ‑ "In view of the directions in the order of remand as well as the rule of law stated above, I think it was not open to me to refuse to allow the plaintiff to show that the defendant had originally occupied the land as his sub‑tenant or co‑tenant." Issues Nos. 2, 3 and 4 were treated together and found in favour of the plaintiff. Issue No. 5 was also found in favour of the plaintiff and the possession was summed up by the learned Senior Civil Judge as follows: ‑ "I hold that both Game Shah and Sardar Shah had originally occupied the land as a ghair maurusi tenant under the plaintiff'." Possession, as he and his brother, before him, were holding the land as tenants under the plaintiff. Issues Nos. 7 and 8 were considered to be redundant in view of the finding on other issues. In the result, as already stated, the plaintiff's suit was decreed with costs.

3. The heirs of Sardar Shah feeling aggrieved, went up In appeal to the District Judge, Gujranwala. The learned District Judge, as a result of decision on Issue No. 1, dismissed the plaintiff's suit, relying on the decision of the Federal Court Karam Ali and others v. Raja and others (P L D 1955 F C 35), "that plaintiff could not be permitted to shift his ground by taking plea contrary to the original averment that the defendant had been cultivating the land as a tenant under him and had been giving him batai or else, the defendant had been cultivating the land jointly with him". Ata Muhammad feeling aggrieved has come up in appeal to this Court. On the 28th of March 1962, All Ahmad Khan, Advocate, moved an application under Order VI rule 17 C. P. C. for leave to amend the plaint. It is stated In the application that in the interest of justice and for proper decision of the case, it was necessary that specific allegation about the exact character of possession or dispossession of the plaintiff‑appellant should be made, so as to show that defendant entered as a tenant originally and paid lagan to the plaintiff, but he refused to pay batai and thereby assumed wrongful possession about a year ago. In para. No. 3 of the application it was stated that "in the very first statement in the Court in August, 1956, the plaintiff as his own witness, however, clarified the position and stated that the defendant was originally a tenant under him and had been paying batai to him, but refused to pay batai about a year ago and thereby assumed wrongful possession of the land".

4. The respondent opposed the application on the ground, inter alia, that the application for amendment was very much belated, that there was no defect In the drafting of the plaint, that the amendment, if allowed, would change the very nature of the suit and such amendment should not be allowed.

5. The question which calls for determination is as to whether the application for amendment should be allowed or not. After hearing the learned counsel for the parties at length and giving our careful consideration to the case‑law on the subject, we have formed the opinion that for the purpose of determining the real question in controversy between the parties, the application for amendment ought to be allowed.

6. It will be plain from reading of the language of O. VI, r. 17 that the real purpose of allowing amendment is to secure proper administration of justice for the purpose of "determining the real question in controversy between the parties". The words "and all such amendments shall be made as may be neces sary for the purpose of determining the real questions in con troversy between the parties" clearly emphasise the imperative necessity that Courts should get at and try the merits of the case that come before them. In other words the language of the said rule strongly favours an amendment where it is necessary in the ends of justice.

7. The following three main considerations should be borne in mind in exercising the discretion while allowing or refusing amendment. The first and the foremost consideration is as to whether the proposed amendment is necessary for the purposes of "determining" the real question in controversy between the parties and in case the Court thinks It Is so, the rule makes it imperative on the Court to allow such amendment. The second consideration which should receive due consideration by the Court is as to whether the amendment would introduce a totally different, new and inconsistent case, and, as a general rule, should not allow such amendments. The third and the last consideration is as to whether the proposed amendment is made in good faith and is not unduly belated.

8. So far we have been discussing the real object of O. VI, r. 17, untrammelled by authorities. We now proceed to examine a few authorities on the subject. The first authority from which we like to quote is the decision of the Privy Council in Ma Shew Mya v. Maung Hnaung (A I R 1922 P C 249). Their Lordships of the Privy Council observed as follows: ‑ "All rules of Court are nothing but provisions intended to secure the propel administration of justice and it is, therefore essential that they should be made to serve and be subordinate, to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised ; but nonethe less, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject‑matter of the suit."

9. We may also quote the following observation of Akbar, J. In the case of Muhammad Fakirullah Mia v. Bimalendra Nath Maitra and others (P L D 1961 Dacca 254) :‑ "There is no bar to allow an amendment in a proper case at the appellate stage. All rules of Court are nothing but pro visions 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 power 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 circum stances of the case. In such a case amendment can rightly be allowed even at appellate stage." The Supreme Court of India in L. J. Leach & Co. Ltd. and another v. Messrs Jardine Skinner & Co. (P L D 1957 S C (Ind.) 307), relying on the decision of the Privy Council In Charan Dos v. Amir Khan (A I R 1921 P C 50), went to the length of holding that in the interest of justice amendment can be allowed even If a fresh suit on the amended claim would be barred by limitation on the date of application. At page 316, their Lord ships observed: ‑ "It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice. In Charan Das v. Amir Khan A I R 1921 P C 50, the Privy Council observed :‑ `that there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where the effect is to take away from a defendant a legal right which has accrued to hire by lapse of time, yet there; are cases where such considerations are outweighed by the special circumstances of the case.' "

10. It Is important to observe here that in Charan Das v. Amir Khan, the subject‑matter of the appeal before the Privy Council was a suit for pre‑emption. The plaintiffs in the above: noted case had brought a suit for declaration of pre‑emption rights in respect of the respective properties to which they related but they did not in plain language claim possession of the property sold and the usual consequential relief. The Court of first Instance refused to allow the amendment of the plaint. The Divisional Judge, on 18th June 1915, supported this judgment. The judicial Commis sioner, however, on 12th December 1915, allowed the amendment to be made and from his judgment appeal had been preferred to the Privy Council. Lord Buckmaster, who delivered the judgment, repelled the objection against the amendment allowed by the Court of the judicial Commissioner notwithstanding the fact that right of pre‑emption is a predatory right and the amendment was allowed long after the period of limitation had expired.

11. We may also quote the pithy observation of B. Z. Kaikaus, J. (as his Lordship then was) in Sh. Alauddin v. The Central Exchange Bank Ltd., Lahore (P L D 1960 Lah. 446), wherein his Lordship observed as follows: ‑ "It is general rule that Courts should be lenient towards applications for amendment of pleadings. It does not even matter very much if the application has been put in after delay provided it is bona fide." It follows from the above authority that as a general rule, leave to amend will be granted so as to enable, "the real question in issue between the parties to be raised on the pleadings, where the amendment will occasion no injury to the opposite‑party". It will be profitable to quote some of the very terse observations of Bramwell, L. J. on the point, in Tildesley v. Harper ((1878) 10 C D 393), when he said: ‑ "I have had much to do in Chambers with applications for leave to amend, and I may perhaps be allowed to say that this humble branch of learning is very familiar to me. My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mold fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise." Continuing further, his Lordship observed: - "However negligent or careless may have been the first omis sion and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compen sated by costs." Bawen, L. J. also expressed himself in the same manner, when he observed that "there is one panacea which heals every sore in litigation, and that is costs. There is no rule limiting amendment to accidental errors". His Lordship further observed : "all such amendments shall be made as may be necessary for the purpose of determining the real questions In controversy".

12. In the light of the above authorities, the application for amendment, as already stated, i3 to be allowed for three‑fold reason. Firstly, because we consider it essential for the decision of the real dispute between the parties that the proposed amend ment should be specifically raised in the plaint. Secondly, because the proposed amendment would not change the nature of the suit and the suit would still be governed by Article 142 of the Limita tion Act and the burden of proof would lie on the plaintiff -appellant to prove that the suit was within time and that the defendant had been in cultivating possession of the land through him as his tenant. Thirdly, because the very amendment sought by the appellant was under the directions contained in the remand order of the learned District Judge put into issue after the remand by the learned Senior Civil Judge as reflected in issues Nos. 1, 2 and 3.

13. We accordingly allow the amendment subject to payment of Rs. 100 as costs to the respondent, and direct the Senior Civil Judge, Gujranwala, to allow the plaintiff to file the amended plaint after payment of the costs within two weeks after the summoning of the parties before him. Costs to follow the event. A. H. Order accordingly.