2016 PLP 533 (MLD)

WAQAR AHMAD SETH, J.

This revision petition has been directed against the judgment and decree dated 19/10/2006 passed by the learned Additional District Judge-II, Kohat whereby he dismissed the appeal bearing No.19/13 of 2003 of the petitioners/plaintiffs against the judgment and decree dated 10/03/2003 passed by the learned Civil Judge, Kohat.

2. Brief facts of the case are that Attaur Rehman and others, petitioners/plaintiffs have instituted a suit against Abdur Rashid and others, respondents/defendants for declaration to the effect that they are owners in possession of the suit property fully details of which have been given in the heading of the plaint and the predecessor-in-interest of defendants Nos.1 to 22 have got no right to transfer the same in the name of defendant No.1 through sale Mutation No.99 dated 28/02/1974 and defendant No.1 has got no right to transfer the same in favour of defendants Nos.22 to 24 through Mutation No.4094 attested on 22.03.1992 and they prayed for cancellation of both these Mutations on the ground of fraud. They have also prayed for perpetual injunction restraining the respondents/defendants not to interfere in the suit property and that the respondents/defendants were asked time and again to admit their claim but they refused to do so, hence the instant suit.

3. The respondents/defendants Nos.1, 23 and 24 have contested the suit by filing written statement, denying therein the claim of the petitioners/plaintiffs. Out of the divergent pleadings of the parties, the learned trial Court framed as many as six issues including the relief. Both the parties produced their evidence in respect of their respective claims and after hearing their learned counsel, the learned Civil Judge, Kohat dismissed the suit filed by the petitioners/plaintiffs vide his consolidated judgment and decree dated 10/03/2003.

4. Feeling aggrieved from the above judgment and decree of the trial Court the petitioners/plaintiffs preferred an appeal bearing Nos. 19/13 of 2003. It is pertinent to mention here that the petitioners/ plaintiffs during the pendency of the appeal have also filed an application under Order-VI, Rule 17 of the Civil Procedure Code for amendment in the plaint for inclusion of landed property bearing Khata No.165 as per fard jamabandi for the year 1962-63 situated at Mauza Mir Ahmad Khel District Kohat on the ground that in the plaint inadvertently the said Khata number was not mentioned. The learned Additional District Judge-II, Kohat vide judgment and decree dated 19/10/2006 not only dismissed the application for amendment in the plaint but also dismissed the appeal of the petitioners/plaintiffs. Hence the instant revision petition by the petitioners/plaintiffs.

5. At the very out set learned counsel for the petitioners/plaintiffs contended that their application for amendment in the plaint has been turned down by the learned Appellate Court mainly on the ground that it was submitted after lapse of more than two decades whereas delay in seeking amendment is itself no ground for rejecting it and the application should be decided on merits. It has also been argued the purpose of the provisions for amendment is the promotion of ends of justice and not defeating the same and that the application ought to have been allowed by the learned Appellate Court. On the other hand learned counsel for the respondents/defendants while opposing the aforesaid contentions, defended the judgment of the learned lower Appellate Court and contended that no fruitful purpose would be served even if the proposed amendment is allowed, hence the application was rightly dismissed by the learned Appellate Court.

6. Arguments heard and recorded perused.

7. The rules of procedure applicable to the amendment of pleadings are postulated under Rule 17 of Order VI of the Civil Procedure Code. The legislature has empowered the Court seized with the matter, to allow the amendment of pleadings, at any stage of the proceedings. However, discretion is restricted as, according to the language of the Rule, it is imperative that the amendment of the pleadings may be allowed in such manner and on such terms as it may be just. It was further provided that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The second part of the Rule postulates that the amendments which are found necessary in order to determine the real questions in controversy between the parties, have to be allowed by the Court. The intention of the legislature is evidence that an amendment which is relevant and necessary to the proposition under consideration, has to be permitted. The consensus is that an amendment may not be allowed when it was likely to change the nature of the suit or cause of action, or both. In cases where, on account of omission to raise a plea in the pleadings, a valid right was accrued to the opposite party, in such cases the amendment was not permissible. Besides it was enjoined upon the Court to ensure that the amendment was not male fide. No other restrictions have been construed by the superior Courts to disallow the amendment of the pleadings of the parties in a civil action.

8. There is no doubt that an amendment in the pleadings can be allowed at any stage and delay in itself is no ground to refuse an application filed in that behalf unless it is likely to cause injustice to any party. Similarly ends of justice are the paramount consideration for deciding an application for an amendment of pleadings, but it cannot mean that the ends of justice can be achieved only by granting the desired amendment. In an application for amendment is likely to impair the judicial process or cause the abuse of process of law it would rather defeat the purpose for which the provisions of Order VI, Rule 17, C.P.C. have been formulated.

9. In the instant case, the petitioners/plaintiffs filed an application under Order VI, Rule 17, C.P.C. for amendment in the plaint to include landed property bearing Khata No.165 as per Jamabandi for the year 1962-63 situated in Mauza Mir Ahmad Khel District Kohat on the ground that as before Settlement of 1972-73 Mian Khel and Mir Ahmad Khel were two different Mauzas having different revenue record and both were amalgamated at the time of Settlement of 1972-73 making one Mauza Mir Ahmad Khel Mian Khel and the name of the predecessor-in-interest of the petitioners/plaintiffs as owner to the extent of 1/6th share is recorded till Jamabandi 1961-62 and later on his name was deleted. Thus if the proposed amendment is allowed to the petitioners/plaintiffs, the same would not change the cause of action or subject matter in the lis and would not cause prejudice to the opposite party. Amendment can be allowed at any stage, if it does not change the cause of action of the suit. Amendment can be allowed to seek consequential relief arising from the cause of action originally incorporated in plaint and amendment can be allowed to add additional relief available to plaintiff even before higher Courts. In this regard reliance is placed on "Mumtaz Baig and 5 others v. Sarfaraz Baiq" (2003 CLC 713). In case of "Sh.Abdul Rahim v. Noor Muhammad and 8 others (1993 CLC 1059) it has been held that, "power of amendment of pleadings is available at any stage of the lis and the bar of limitation and delay will not be a ground to refuse amendment if it was necessary for the just decision of the case". In another case reported as (1993 SCMR 593) it has been held that, "while deciding application under Order VI, Rule 17, C.P.C. technicalities are to be avoided. In case the proposed amendment was directly connected with the cause of action and same would not alter the nature of suit either in form or in substance and is necessary for resolving entire dispute between the parties and saving them from multiplicity of proceedings the order allowing amendment is lawful and hence was restored in appeal by the Lordship of the Supreme Court by setting aside the order of dismissal of application passed by a D.B. of this Court".

10. In view of what has been discussed above, this instant revision petition is allowed, judgments and decrees of both the Courts below are set aside and the case is remanded back to the learned trial Court where the petitioners/plaintiffs should file amended plaint only to the extent of inclusion of landed property bearing Khata No.165 as per jamabandi for the year 1962-63 situated at Mir Ahmad Khel Tehsil and District Kohat in the plaint and thereafter respondents/defendants should file amended written statement, if so desired, and after giving opportunity to the parties to adduce evidence, if any, the trial Court is directed to decide the case strictly on merits. Parties are directed to appear before the learned Senior Civil Judge, Kohat on 18/05/2015. SL/246/P Petition accepted.