P L D 1965 (W (PLP)

(a) Civil Procedure Code (V of 1908), O. VI, r. 17‑Amendment of plaint‑Amendment seeking to change nature of case‑Not allowed‑[Suit originally praying for declaration that property in dispute was waqf, but amendment seeking to include relief that if property was not proved to be waqf, plaintiff No. 2 as sole heir of alleged waqf was entitled to it]. (b) Civil Procedure Code (V of 1908), O. VI, r. 17‑Amendment of plaint‑Declaratory suit sought to be amended to include prayer for possession‑(Possession of part of property having been made over to defendant during pendency of suit)‑Amendment allowed‑No question of changing nature of case or cause of action‑"Cause of action" Meaning Plaintiff alleging possession through karinda Defendant not in possession Declaratory suit competent Specie Relief Act (I of 1877), S. 42, proviso Application‑"Other relief " must be available against defendant, not third person Such relief must be competent at time of institution of suit Defendant going into possession during pendency of suit‑Suit will remain declaratory inform but Court may mould decree in accordance with circumstances which intervene later‑Court not obliged to dismiss suit for failure to comply with proviso‑Rule of practice‑To allow amendment. Held that the trial Court was not justified in refusing amendment to include a prayer for possession of the property. By the substitution of .the relief of possession for one of declaration, there can be no question as to the change of the nature of the suit. It remains the same. The contention that by amendment of the plaint to include a prayer for possession the plaintiffs wanted to introduce a new cause of action is equally fallacious. The expression "cause of action" has been defined to mean every fact, which would be necessary for the plaintiff, if traversed, to prove in order to support his right to the judgment of the Court. In other words, it means the whole bundle of material facts‑which it is necessary for the plaintiff to prove in order to entitle him t6 succeed in the suit and which if not proved would give the defendant a right to an immediate judgment. It has, therefore, nothing to do with the relief prayed for by the plaintiff or the defence that may be set up by the defendant. Whether the relief in the suit is. one for declaration or possession the plaintiff will have to prove the same facts. The cause of action in either case, therefore, remains the same. The trial Court, therefore, was clearly in error to refuse the amendment on this ground. Muhammad Khalil v. Mahboob Ali P L D 1948 P C'131 ref. The plaintiffs were not in actual possession of the property at the time of the institution of the suit. The defendant was not in possession either. The possession was with one S who had obtained it in pursuance of the order, of a Magistrate under section 145, Cr. P. C. The case of the plaintiffs as put forth in paragraph 6 of the plaint was that they were in constructive possession of the property through S whom they termed as their karinda. S had at no time claimed any hostile title against the plaintiff petitioners . . . . The suit in the nature of things and according to the allegations made in the plaint had to be one for declaration. The necessity to claim a specific relief of possession arose only during the pendency of the suit when the order of the Magistrate whereby possession had been restored to S was set, aside in revision by High Court and the possession was restored in obedience to that order. But for such an order there would have been no valid objection to the frame of the suit. The suit of the plaintiffs would not have been competent if as indicated in the proviso to section 42 of the Specific Relief Act, 1877, the plaintiffs, being able to seek further relief than a mere declaration of title, had omitted to do so. The further relief which a plaintiff is bound to seek by reason of the proviso is a relief which he can obtain against the‑defendant or defendants to the suit and not against a third party. It was thus clear that the plaintiffs, under the circumstances of the case, could ask only for a declaration against the defendant respondent and could not ask for possession against him, the property being in possession of S who was alleged to have held the property on behalf of the plaintiffs. No objection, therefore, could be taken to the form of the suit with reference to the time of institution. Nawab Humayun Begum v. Nawab Shah Mohammad Khan A I R 1943 P C 94; Sunder Singh‑Mallah Singh Sanatan Dharam High School Trust Indaura v. Managing Committee; Sunder Singh Mallah Singh Rajput High School, Indaura A I R 1938 P C 73 and Giribala Chaudhary and others v. Ushangini Debi A I R 1955 Assam 177 ref. The further relief contemplated in the proviso to section 42 of the Specific Relief Act, 1877, is a relief which was available to the plaintiffs at the time of the institution of the suit and which he had failed to pray for. What the proviso to section 42 contemplates is the position as obtaining at the date of the suit and not subsequently. The plaintiffs' right to maintain a suit for declaratory decree was not affected by the fact that during the pendency of the suit, right to possession had also accrued to the plaintiffs. If the original relief claimed becomes, by reason of any subsequent change of circumstances, inappropriate, it is open to a Court of justice to take notice of such events as had happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. Fateh Shah v. Bahab Shah and others A I R 1927 Lah. 128; Govinda v. Parumdevi (1889) 12 Mad. 136; Hurmat Ali Shah v. Tufail Mohammad and others A I R 1935 Lah. 332; Singheshwar Jha v. Ajab Lai Mandar A I R 1941 Pat. 142 and Mahant Indra Narain Dos v. Mahant Ganga Ram Das and another A I R 1955 All. 683 ref. There is no obligation on the Court to dismiss a suit if it is bad under proviso to section 42 of the Specific Relief Act. Section 42 of the Act does not authorise the dismissal of a suit where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. It only forbids the Court to make the declaration, the prayer for which is not coupled with a prayer for a consequential relief. A suit which is defective under section 42 should not, therefore, be dismissed for failure on the part of the plaintiff to pray for further relief and the Court should allow the plaintiff to amend the plaint. It is a settled rule of practice not to dismiss suit for non‑compliance of the provisions of section 42 but to allow the plaintiff necessary amendments. The facts which are necessary for the purpose of this petition are that the petitioners instituted a suit on the 21st of December 1961 for a declaration that a mosque and a building. Along with the land measuring 4 kanals was a waqf property for the benefit of the disciples and the followers of Darbar Muhammad Khair Bahar Shah and plaintiff petitioner No.1 was its Sajjadanashin and Mutawalli, with a consequential relief in the form of a permanent injunction restraining the defendant from interfering with his possession. No relief was claimed in favour of Mst. Ghulam Fatima, plaintiff‑petitioner No.2. It was alleged in paragraph 6 that Mian Niaz Hussain, plaintiff‑petitioner No. 1, was in constructive possession through his representative Sain Chiragh. Imdad Hussain defendant‑respondent filed his written statement on the 12th of October 1962 and controverted the allegations made in the plaint and further raised a preliminary objection that the suit for declaration was not competent in view of the fact that the plaintiff‑petitioners were not in possession. Issues were framed on the same day.

2. The plaintiff petitioners applied on the 17th of November 1962 under Order VI, rule 17, Civil Procedure Code, for the amendment of the plaint to include a prayer for possession on the ground that during the pendency of the suit possession of a portion of the property in dispute had been delivered to the defendant by the Ilaqa Magistrate on the 14th of February 1962. A further plea was sought to be raised in favour of petitioner No. 2 that in the event it be held that Khalifa Hussain Shah ha not purchased the property as a waqf of Darbar Muhammad Khair Bahar Shah, Mst. Ghulam Fatima being the only legal representative of the deceased to the exclusion of plaintiff No. t and the defendant, was entitled to the property. The application was opposed by the defendant. The learned Civil Judge refused, the amendment. He observed that the plaintiff‑petitioners were not in possession even on the 21st of December 1961 when the suit was instituted and could not be deemed to have bee dispossessed during the pendency of the suit, because the defendant was delivered possession against one Sain Chiragh only who was not a party to the suit. The proposed amendment, in his opinion, being one which was intended to change the nature of the suit was, therefore, refused. The order of the learned Judge is challenged through this petition.

3. The impugned order in so far as it relates to the refusal of an amendment in the plaint to include a relief in favour of the petitioner No. 2 based on her title on the allegation that she was the sole legal representative of the deceased, is unexception able. Such an amendment could not have been allowed. The cause of action in the case of petitioner No.2 is absolutely different from the one alleged in the plaint. It is also to introduce a new and absolutely different case. There is ‑moreover in this respect no identity of purpose between plaintiff No.1 and plaintiff No.

2. In fact petitioner No. 2 by this amendment is setting up a case also against her co‑plaintiff. If the plaintiffs in the first instance had instituted the suit including also a prayer in favour of petitioner No. 2 based on the allegations which she is seeking to raise by way of amendment, the suit 'would have been bad both on account of misjoinder of plaintiffs and causes of action. The order of the learned Judge refusing amendment in this behalf is, therefore, maintained.

4. The learned trial Court, however, was not justified in refusing amendment to include a prayer for possession of the property. By the substitution of the relief of possession for one of declaration, there can be no question as to the change of the nature of the suit. It remains the same. The contention that by amendment of the plaint to include a prayer for possession the plaintiffs wanted to introduce a new cause of action is equally fallacious. The expression "cause of action" has been defined to mean every fact, which would be necessary for the plaintiff if traversed to prove in order to support his right to the judgment of the Court. In other words, it means the whole bundle of material facts which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit and which if not proved would give the defendant a right to an immediate judgment. It had, therefore, nothing to do with the relief prayed for by the plaintiffs or the defence that may be set up by the defendant. In Muhammad Khalil v. Mahboob Ali (P L D 1948 P C 131) the Judicial Committee observed that the cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff which refers to the media on which the plaintiff asks the Court to arrive at a conclusion in his favour. Whether the relief in the suit is one for declaration or possession the plaintiff will have to prove the same facts. The cause of action in either case, therefore, remains the same. The learned, Judge, therefore, was clearly in error to refuse the amendment on this ground.

5. Doubtless, the petitioners were not in actual possessions of the property at the time of the institution of the suit. The defendant was not in possession either. The possession was with Sain Chiragh who had obtained it in pursuance of the order of a Magistrate under section 145, Cr. P. C. The case of the petitioners as put forth in paragraph 6 of the plaint was that they were in constructive possession of the property through Sai Chiragh, whom they termed as their karinda. Sain Chiragh ha at no time claimed any hostile title against the plaintiff petitioners. The fact that Sain Chiragh was in possession at the relevant time is not denied. I, therefore, cannot agree with the observation of the learned Judge that the plaintiffs should have instituted a suit for possession. The suit in the nature of things and according to the allegations made in the plaint had to be one for declaration. The necessity to claim a specific relief o possession arose only during the pendency of the suit when the order of the Magistrate whereby possession had been restored to Sain Chiragh was set aside in. revision by Mr. Justic J. H. Rizvi, on the 24th of November 1961 and the possession was restored in obedience to that order. But for such an order there would have been no valid objection to the frame of the suit.

6. The suit of the plaintiffs would not have been competent if as indicated in the proviso to section 42 of the Specific Relief Act, the plaintiffs, being able to seek further relief than a mere declaration of title, had omitted to do so. The further relief which a plaintiff is bound to seek by reason of the proviso is a relief which he can obtain against the defendant or defendants to the suit and not against a third party. In Nawab Humayun Begum v. Nawab Shah Muhammad Khan (A I R 1943 P C 94), the Judicial Com mittee observed that "it is well settled that the other relief mentioned in the proviso must be `other relief' against the defendant himself against whom the declaration is sought". The facts of that case were that the plaintiff instituted a suit against her husband, his son, and two banks in India with whom money had been deposited on fixed deposit receipt and the claim was brought by the lady for a declaration that certain sums of money which were held by the banks on deposit receipt were her property and not her husband's. "When the plaintiff filed the suit the amount was not payable by the banks, as the time fixed for payment had not still reached and as soon as the amount became payable, the Banks applied to the Court showing their willingness to pay the amount to whomsoever the Court directs them to pay. The Banks, on this were discharged from the suit. The Chief Court of Oudh held that the lady was entitled to ask for other relief and, therefore, she could notmerely get her declaration of title. The Judicial Committee, however, held "that the lady" was entitled to a declaration against the husband and there was no other relief she could properly claim against him;" and their Lordships further observed, "The money was in the banks and at the disposal of the plaintiff and it would have been impossible to make any other claim against the husband except for a declaration that the money in the banks was money which the plaintiff was entitled to have paid out to her." It was pointed out by Lord Thankerton in Sunder Singh‑Mallah Singh Sanatan Dharam High School Trust, Indaura v. Managihg Committee, Sundar Singh‑Mallah Singh Rajput High School, Indaura (AIR 1938 P C 73), that when the defendants were not in possession or in a position to deliver possession of the disputed properties to the plaintiffs, there was no further relief available to the latter. In a foreign judgment, Giribala Chaudhary and others v. Ushangini Debi (A I R 1955 Assam 177), the plaintiff and the defendants both were not in possession of lands. They were in possession of the tenants. The plaintiffs case was that the tenants paid the rents to them. It was held that a suit for declaration under the circumstances without the prayer for possession was competent.

7. It was thus clear that the plaintiffs, under the circum stances of the case, could ask only for a declaration against the defendant‑respondent and could not ask for possession against him, the property being in possession of Sain Chiragh who was alleged to have held the property on behalf of the plaintiffs. No objection, therefore, can be taken to the form of .the suit with reference to the time of institution.

8. The question arises as to what is the effect of dispossession of Sain Chiragh and the consequent possession of, the defendant during the pendency of the suit. The `further relief' contemplated in the proviso to section 42 of the Specific Relief Act is a relief which was available to the plaintiffs at the time of the institution of the suit and which he had failed to pray for. What the proviso to section 42 contemplates is the position as obtaining at the date of the suit and not subsequently. The plaintiffs' right to maintain a suit for declaratory decree is not affected by the fact that during the pendency of the suit, right to possession has also accrued to the plaintiffs. In Fateh Shah v. Bahab Shah and others (A I R 1927 Lah. 128) it was observed that the proviso to section 42 refers to the position of the plaintiff at the date of the suit. In that case the plaintiff had instituted a snit for declaration that a gift of ancestral land made by his father in favour of the defendants was not to affect his reversionary rights. During the pendency of the suit the donor, Bahab Shah, died and an objection was raised that the suit as framed was not maintainable and that the plaintiff ought to sue for possession of the land. Relying on Govinda v. Perumdevi ((1889) 12 Mad. 136) the objection was held to be devoid of force, and it was observed that the provisoto section 42 refers to the position of the plaintiff at the date of the suit and not to subsequent events. Again, in Hurmat Ali Shah v. Tufail Mohammad and others (A I R 1935 Lah. 332), it was held by Din Muhammad and Addison, JJ., that if at the time when the suit was instituted the plaintiff was not able to seek any further relief than a mere declaration of title, he need not in his suit ask for any further relief and his suit would be competent under the substantive portion of section

42. They further observed that the ability of the plaintiff to seek further relief dates to the time whey. the suit is brought and cannot be utilized against him if that ability come into existence only after the institution of the suit, during the pendency of the trial these rights would be adjudicated upon as they existed at the time of the institution of the suit. In Singheshwar Jha v. Ajab Lal Mandar (A I R 1941 Pat. 142), also it was held that the right of the plaintiffs to the relief must be judged as at the date of the institution of the suit, and that if at that time they were in possession it was sufficient for them to establish their right to the land, and their suit to establish title was not barred by section 42 even if subsequent to the suit they lost possession. The same view was taken in a foreign judgment, Mahant Indra Narain Das v. Mahant Ganga Ram Das and another (A I R 1955 All. 683). It will thus be clear that by the mere fact that possession was delivered to the defendant during the pendency of the suit, it did not cause any defect in the form of the suit as originally instituted. The suit as originally framed against him had not this alleged defect. The disturbance of possession, if any, took place subsequent to the institution of the present suit. It is well established principle that if the original relief claimed becomes, by reason of any subsequent change of circumstances, inappropriate, it is open to a Court of justice to take notice of such events as had happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. If it involves a payment of Court‑fee, the Court can always allow to amend the plaint.

9. It may as well be noticed that there is no obligation of the Court to dismiss a suit if it is bad under proviso to section 42 of the Specific Relief Act. Section 42 of the Act does no authorise the dismissal of a suit where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. It only forbids the Court to make the declaration, the prayer for which is not coupled with a prayer for a consequential relief. A suit which is defective under section 42 should not, therefore, be dismissed for failure on the part of the plaintiff to pray for further relief and the Court should allow the plaintiff to amend the plaint. It is a settled rule of practice not to dismiss suit for non‑compliance of the provisions of section 42 but to allow the plaintiff necessary amendments. The trial Judge, under the circumstances, was not justified to have refused the application of the petitioner for amendment.

10. I, therefore, accept the petition and set aside the order of the trial Court whereby he disallowed the application of the petitioner for amendment to include a prayer for possession and the plaintiff‑petitioners are consequently permitted to make the necessary amendment. There shall be no order as to costs. A. H. Petition allowed.