2004 PLP 697 (CLC)

AMIR HANI MUSLIM, J.

The petitioners through this petition have challenged the orders dated 23-10-2001 passed by the IIIrd Senior Civil Judge, Hyderabad, in Suit No.249 of 1986 filed by the petitioners against respondents whereby the petitioners' application under Order VI, rule 17 read with section 151, C.P.C. was dismissed against which the petitioners preferred Civil Revision Application No.2 of 2002 before the VIth Additional District Judge, Hyderabad. On 11-12-2002 the learned Additional District Judge has dismissed the revision of the petitioners affirming the order of Senior Civil Judge, Hyderabad. Both these orders have been impugned in these proceedings.

2. The facts as has been pleaded in the petition are that on 29-6-1986 the petitioners filed Suit No.249 of 1986 in the Court of IVth Senior Civil Judge, Hyderabad, against the respondents for declaration and permanent injunction. In the suit it was pleaded that the petitioners are in possession and the petitioners had prayed the following relief in the said suit:-- "(A) To declare that the defendants have no legal right or power to include the plot of plaintiff bearing C.S. No.A/2986, Ward `A', Hvderabad in the LMC Hostels area, by raising walls on its south and west. (B) To issue permanent injunction restraining the defendants from interfering in the peaceful use and possession of the plaintiffs over their plot bearing C.S. No.A/2986, Ward `A', Hyderabad so also from including the same in L.M.C. Hostels area, by raising walls on its southern and western sides or in any other manner, directly or indirectly,' in person or through their servants, subordinates, contractors, agents or any other person. (C) To saddle the costs upon the defendants. (D) Also to award any other relief which this Honourable Court deems fit and proper, in the circumstances of the suit."

3. Written statement was filed and ad interim order was operative when the respondents alleged to have dispossessed the petitioners and the petitioners initiated proceedings against the respondents under Order 39, rule 2(3), C.P.C. The said application was dismissed but since Criminal Original Miscellaneous No.584 of 1986 is pending adjudication before this Court, the petitioners did not prefer any appeal against the order, dated 30-5-2000 passed by the learned trial Court dismissing their contempt application. It has been pleaded by the petitioners that after receipt of the record and proceedings from the IInd Additional District Judge, Hyderabad, the City Mukhtiarkar, Hyderabad, on direction of the trial Court inspected the site and submitted his report by demarcating the boundaries of the two plots. In the light of the report of the City Mukhtiarkar, Hyderabad. Petitioners made an application under Order VI, rule 17, C.P.C. on 11-4-2000, after receipt of the report of the City Mukhtiarkar on 28-3-2000 praying for the amendments in the plaint, which amendments are reproduce herein-below:-- "(1) In the title of the plaint words, `Possession Mandatory Injunction and Mesne Profits', be added. (2) After para.(13) following paras. be added:-- 13(a) That with the mutual consent of the parties in M.C.A. No.47 of 1986 preferred by the plaintiffs against the order, dated 6-7-1986 passed on the application under Order 39, rules 1 and 2, C.P.C. by learned IVth Senior Civil Judge, Hyderabad, the learned IInd Additional District Judge, Hyderabad vide his order, dated 30-7-1986 decided the said appeal and thereby defendants were allowed to raise compound walls around their plot bearing C.S. No.A/2479; but the defendants with the assistance of local administration and the police force illegally, forcibly and in violation of the abovesaid order, dated 30-7-1986 passed by learned IInd Additional District Judge, Hyderabad raised the walls on the western and southern .sides of the plaintiffs plot bearing C.S. No.A/2986 on 2-8-1986; and thereby dispossessed the plaintiffs from their said plot and included entire C.S. No.A/2986 within the four walls raised by them. 13(b) That the plaintiffs named above sent telegrams and made application for the contempt of Court before the Court of learned IInd Additional District Judge, Hyderabad against the defendants. The plaintiffs also filed contempt proceedings viz. Criminal original M.A. No.584 of 1986 against the non-party contemners including the defendants, which are still pending in the Honourable High Court of Sindh, Circuit Court at Hyderabad. 13(c) That the wails raised around the plaintiffs plot viz. A/2986 and illegally occupying and depriving the plaintiffs from its use and occupation, has made the defendants liable to pay mesne profits; and the walls so raised and/or any construction raised on any portion of C.S. No.A/2986 is liable to be removed. (3) That para. (16) of the plaint be substituted by the following para:-- `That for the purpose of the court-fee and jurisdiction of this Honourable Court, the suit is valued at Rs.80,800 i.e. Rs.200 for each prayer made in clauses (A), (B), (C) and (E) and Rs.80,000 for the prayer made in clause (D), upon which court-fee stamps worth Rs.3,795 are attached with the plaint. The plaintiffs undertake to pay more court-fee on the total amount of grant of mesne profits. (4) In prayer clause, sub-clauses (C) and (D) be substituted by clauses (F) and (G) respectively and following sub-clauses (C), (D) and (E) be added as under:-- (C) To issue Mandatory Injunction directing the defendants to dismantle the walls and/or any other construction raised on and/or by the western and eastern sides of Plot No.A/2986 and further directing them to raise walls on the sides of their Plot No. A/2479 leaving the plaintiffs Plot No. A/2986 as per site plan attached with the sale-deed executed by the H.M.C. in favour of plaintiffs. (D) To dispossess the defendants from the plaintiffs Plot No.A/2986 and to put it in vacant and physical possession of the plaintiffs. (E) To award mesne profits at the rate deems fit and proper by this Honourable Court w.e.f. 2-8-1986 i.e. the date of possession of the plaintiffs from their Plot No.A/2986 at the hands of the defendants, till the plaintiffs are put in vacant and physical possession of the same."

4. The amendment application was opposed by the respondents on the ground that amendment of the nature would change the complexion of the suit. The Senior Civil Judge by his order, dated 23-10-2001 dismissed the amendment application, inter alia, on the ground that the application has been made at a belated stage and the relief sought through the application was afterthought and time-barred. The petitioners preferred civil revision which, too, was dismissed by the order of the VIth Additional District Judge, Hyderabad on 11-12-2002, affirming the order of the Senior Civil Judge, holding therein that the grant of the application would amount to introduction of new cause.

5. It has been argued by the learned counsel for the petitioners that the making of an application under Order VI, rule 17 was within his rights and it would neither change the complexion nor would it introduce new cause as has been held by both the Courts below. He submitted that the application under Order VI, rule 17, C.P.C. was necessary in the light of the report of Mukhtiarkar and there is no delay. He further submitted that the amendment was sought on basis of the report of the Mukhtiarkar and both the Courts below overlooked this material fact. It was argued by him that if a party during the pendency of the suit is dispossessed, amendment application praying therein for possession would neither-change, the complexion nor would introduce a new cause. In support of his argument he has relied upon the case of Ghulam Bibi v. Sarsa Khan reported in PLD 1985 SC 345 and the case of Arshan Bi v. Maula Bakhsh reported in 2003 SCMR 318.

6. Mr. Masood Noorani, the learned Additional Advocate-General while opposing the petition after filing the counter-affidavit has argued that the petitioners have approached the trial Court for amendment after delay of 16 years which is impermissible in law. He further submitted that both the Courts below have rightly dismissed the application of the petitioners and the orders impugned have been passed in accordance with law. He has relied upon the case Muhammad Hussain v. Sani Hussain reported in 2000 SCMR 391 and the case of Bootay Khan v. Allah Rakha reported in 2000 SCMR 1631.

7. We have heard both the learned counsel and have gone through the record. Since short point was involved in these proceedings we, therefore, with the consent of both the learned counsel have admitted the matter to regular hearing for deciding the issues finally. The scope of Order VI, rule 17, C.P.C. is very wide. The delay alone in seeking amendment of the plaint is no ground to refuse amendment application. Amendment in the pleadings can be sought at any stage of the proceedings and the expression "at any stage of proceedings" used in the Order VI, rule 17 has to be liberally construed. Even the amendment in the pleadings has been ordered up to the stage of the Honourable Supreme Court. Additionally, the Courts are required in law to allow all such amendments that may be necessary for the purposes of determining the real question in controversy. Both the Courts below have overlooked the principles for grant of amendment as propounded by the Honourable Supreme Court in its celebrated judgment 'in the case of Mst. Ghulam Bibi v. Sarsa Khan reported in PLD 1985 SC

345. In the present case the amendment application in which the allegation of dispossession has been made and consequent amendment sought in the pleadings is necessary. During the pendency of proceedings if any development takes place in the proceedings, the Courts would not overlook such development and that too when it is material for the purposes of deciding controversy between the parties. The judgment cited by the learned Additional Advocate -General propounds the general principles of law which are not in dispute but in no way applies to the facts of the present case. There is no delay and both the learned Courts below have overlooked the reasonable explanation given by the petitioners for making the application for amendment. Even otherwise, the question of limitation is not significant in the case of grant of amendment in the pleadings as has been held by their Lordships in the case of Ghulam Bibi and others. The reasoning of both the Courts below in dismissing the application of the petitioners under Order VI, rule 17, C.P.C. were erroneous and are not sustainable in law. To our understanding of law, the scope for grant of application under Order VI, rule 17, C.P.C. is very wide and such application ought to be granted liberally as it restraints the parties from multitude of proceedings.

8. For the aforesaid reasons we allow this petition and direct the petitioners to file the proposed amended plaint within two weeks from date of hearing before the trial Court, Since this is an old matter of 1986 we, therefore, direct the trial Court to finalize the case within six months from the date of receipt of this order. The office is directed to send the R&P immediately to the District Judge, Hyderabad, for transmission of the same to the concerned trial Court. S.A.K./M-12/K Petition accepted.