2002 PLP 199 (MLD)

IJAZ‑UL‑HASSAN, J.‑‑‑Through the instant Constitutional Petition, Sher Afzal petitioner challenges the correctness of order, dated, 10‑3‑1999 and 30‑6‑1999 passed by learned Senior Civil Judge, Batagram and learned District Judge, Batagram respectively, whereby the application of the petitioner for amendment in plaint was rejected and the impugned order was maintained in Revision Petition No.2 C.R. of 1999. The petitioner prays that the aforesaid orders be declared without lawful authority, void and without jurisdiction and the petitioner be allowed to make proposed amendment in his plaint.

2. The facts relevant for the disposal of this writ petition are that the petitioner filed suit (being Suit No. 10/1 of 1995) against Abdul Malik defendant/respondent for declaration, possession and in alternative for specific performance of the contract in respect of suit land bearing Khasra Nos. 1959, 1964, 1968 and 1972 measuring 10 Kanals, 9 Marlas situate in the area of Deh Phagora, Tehsil and District Batagram. The petitioner claimed to have purchased suit land from the respondent in consideration of Rs.3,14,

000. The petitioner also claimed to have paid the entire amount to the respondent at the time of sale. It was averred in the plaint that the respondent was asked to transfer suit land in the name of the petitioner but he declined to do so which obliged the petitioner to file suit. The respondent in his written statement refuted the claim of the petitioner and denied having entered into any transaction with the petitioner. The trial Court formulated as many as 8 issues out of the pleadings of the parties and after recording evidence fixed the case for arguments on 16‑12‑1997, adjourned to 14‑7‑1998 at the request of the petitioner. At the argument stage the petitioner made an application for amendment in the plaint. The application having been contested was rejected vide order, dated 10‑3‑1999 which was upheld by the appellate Court through order, dated 30‑6‑1999 which has given rise to the filing of instant writ petition.

3. Mr. Muhammad Ilyas Khan, Advocate appearing on behalf of the petitioner attacked the impugned orders on a number of grounds and contended, inter alia, that in order to arrive at a correct decision and to do complete justice between the parties, a liberal view should have been taken by the Courts below and proposed amendment should not have been declined. To substantiate the contentions, he relied on. cases reported as "Ghulam Nabi v. Sardar Nazir Ahmad (1985 SCMR 824), Ali Hussain v. Late Ali Ahmad Khan (1983 SCMR 1178), Muhammad Ismail v. Muhammad Sarwar (1980 SCMR 254), S. Ikhlaq Hussain v. WAPDA Lahore (1997 SCMR 284), Zubaida Begum v. Wali Muhammad Khan (1974 SCMR 181), Bashir Ahmad Khan v. Qasiar Ali Khan (PLD 1973 SC 507), Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) and Sultan Ahmad and another v. Sahu and others (1969 SCMR 277)".

4. Conversely, Qazi Anwarul Haq, Advocate for respondent No. l supported the impugned order and maintained that proposed amendment was refused for valid and solid reasons because it introduced an entirely new cause of action which virtually altered the nature of the suit. He relied on "Kaptan Yousuf Kalkava appellant v. Semco Salvage PTD Ltd. respondent (1992 CLC 143) and Sardar Muhammad Mushtaq Khan and 6 others petitioners v. Sardar Muhammad Pervez Khan and 14 others respondents (2001 MLD 1725).

5. We have heard at length the arguments and submissions of learned counsel for the parties in the light of the case‑law cited at the bar.

6. There is no cavil with the proposition that Court is always empowered under Order 6 rule 17, C.P.C., and enjoys jurisdiction to allow amendments in plaint at any stage which are just and necessary for final disposal of case in between the parties and generally delay alone in applying for amendment is not a. ground for refusing amendment in the plaint but at the same time the Court is bound to exercise such jurisdiction in accordance with settled judicial principles particularly while allowing request for amendment that no prejudice is caused to other side and secondly for accurate determination of case, amendment is necessary. It needs no reiteration that while allowing amendment in the plaint, the defendant's rights should also be kept in view and no amendment should be allowed which is aimed to change complexion of the suit altogether or to introduce a new case based on new cause or action, as held by this Court in the case of "Sardar Muhammad Mushtaq and others v. Sardar Muhammad Parvez and others reported in (2001 MLD 1725 (Peshawar).

7. In the instant case we find that the application for amendment was made at a belated stage when the case was fixed for arguments. B When the petitioner realized that the witnesses produced by him do not support his claim and speak differently, he immediately moved an application for amendment for no other reason but to bring his case in line with the depositions made by his witnesses. We feel that the Courts below were quite justified to reject the application and declined to grant amendment. A valuable right having been accrued to the defendant- respondent could not have been snatched away lightly. The rulings cited, on behalf of the petitioner proceed on different facts. The rulings are not helpful to the petitioner in any manner for the reason that in the cited rulings amendments were allowed which were found just and proper for resolution of the controversy involved and which were not aimed to change' character of the suit.

8. In view of what has gone above it follows that no illegality or material irregularity has been exercised by the Courts below. The petitioner has failed to point out any jurisdictional defect attracting the exercise of extraordinary Constitutional jurisdiction of this Court. Resultantly the writ petition fails which is hereby dismissed with no order as to costs. H.B.T./379/P Petition dismissed.