1994 PLP 955 (CLC)

Respondent No.l in person. Date of hearing: 16th November, 1993. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan seeks a writ of certiorari against the orders dated 28-5-1989 and 7-4-1991, respectively passed by the Civil Judge, Toba Tek Singh and the Additional District Judge, Toba Tek Singh refusing an application of the petitioners for amendment of their written statement in a suit for possession filed by respondent No.l, Muhammad Siddique in December, 1983.

2. As borne out by the plaint, the suit property consists of two Ihatas Nos.55 and 56 situated in Chak No.291/G.B, Tehsil and District Toba Tek Singh. The claim of the respondent-plaintiff is based upon ownership of the suit property which according to him was obtained by the petitioners defendants for temporary residence about 7/8 years prior to the institution of the suit but have now refused to vacate the same.

3. Contesting the suit on all fours, the petitioners-defendants claimed the maturity of their title through adverse possession also. After framing issues on merits of the case, the learned trial Court recorded evidence of the parties and fixed the case for final arguments. It was somewhere in March, 1989. Thereafter, the defendants filed an application for appointment of Local Commissioner which was dismissed by the learned trial Court. Then they brought an application for amendment of the written statement which too was dismissed by the trial Court on the ground that the same was aimed at perpetuating the pendency of the suit. A revision petition against the rejection of this application was preferred before the learned Additional District Judge but it was also declined.

4. The petitioners wanted to raise two preliminary objections by way of amendment. First, that the possession of the suit Ihatas had not been delivered by the Collector to the predecessor-in-in:erest of the plaintiff and as such by virtue of section 10(4) of the Colonization of Lands Act, no right or title accrued to him in respect of this property. The petitioners thus maintained that the respondent-plaintiff had no cause of action to file the suit. Secondly, the Ihatas in question were the property of the Provincial Government and the relief, if any, could only be granted by the Collector and that, for that reason, the Civil Court lacked jurisdiction in the matter.

5. The contention of the petitioners before this Court is that their application for amendment of written statement has been turned down by the learned lower Courts mainly on the ground that it was filed at too belated a stage and was meant for causing delay in the disposal of the suits 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 that 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.

6. 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 amendment of pleadings, but it cannot mean that the ends of justice can be achieved only by granting the desired amendment. If 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 have been formulated. A party is, therefore, not at liberty to sleep over the available ground of attack or defence and to raise the same according to the schedule suiting to its own requirement. The prayer should not be detrimental to the legitimate rights of the opposite party. Thus, if delay alone is no ground for refusing an amendment, it cannot go unlimited, unchecked or unfettered also. Before condoning a delay and especially inordinate delay, it must be ensured that the same may not destroy the rights of the other party. The criterion provided by the law is that the requisite amendment shall be made as may be necessary for determining the real question of controversy between the parties.

7. Applying that touchstone, it will be seen that the petitioners defendants categorically denied in their written statement the availability of cause of action to the plaintiff-respondent. They claimed adverse rights over the suit property and, though evasively, denied the ownership of the plaintiff. Thus, the question of possession alongwith its nature and duration was also very much controversy between the parties. The cause of action having been specifically denied by the petitioners-defendants they could lead evidence on the same but if for a fault of their own they failed to do so, now they cannot be allowed to supplement their evidence or to fill any lacuna by the amendment of the pleadings and raising the same plea or objection in a different form. In these circumstances, not only the desired amendment is not necessary for determining the real question of controversy but the delay in seeking the same also becomes relevant and if the amendment is allowed it would exert oppressively against the other parties who have been prosecuting their cause before the trial Court for about six years.

8. It may also be observed that the scope of Constitutional jurisdiction does not extend to the case in hand. Extraordinary jurisdiction has to be invoked only in exceptional circumstances where either no adequate remedy is provided or where grave injustice has been caused. Appropriate remedy by way of revision having been availed by the petitioners, the controversy must now come to an end, especially in the case of the nature of impugned interlocutory order on which the learned Courts below have given concurrent findings. If the law does not provide further remedy in the matter, the Constitutional jurisdiction can not be invoked as a substitute for section 115, C.P.C. unless it is manifested that grave injustice would be caused by refusal to exercise such jurisdiction On this principle too the impugned orders do not call for interference by this Court. In view of the above, the petition has no force which is dismissed hereby, R.A /S-395/L Petition dismissed.