2016 PLP 1 (YLRN)
MUHAMMAD SHAHID and 6 others — Plaintiffs Versus MUHAMMAD SADIQ and others — Defendants
| Citation | 2016 PLP 1 (YLRN) |
| Forum / Court | Sindh |
| Bench Members | Muhammad Faisal Kamal Alam, J |
| Parties | MUHAMMAD SHAHID and 6 others — Plaintiffs Versus MUHAMMAD SADIQ and others — Defendants |
| Primary Law | (b) Civil Procedure Code (V of 1908), (iv) as a rule, the provision of Order VI Rule 17 of C.P.C., is liberally interpreted, which is not only limited to amend the plaint but also Written Statement, inter alia, as in the words of Hon'ble Supreme Court in the case of Mst. Ghulam Bibi (supra), (a) Civil Procedure Code (V of 1908) |
Q1: What are the key laws and sections cited in 2016 PLP 1 (YLRN)?
This judgment primarily cites: (b) Civil Procedure Code (V of 1908), (iv) as a rule, the provision of Order VI Rule 17 of C.P.C., is liberally interpreted, which is not only limited to amend the plaint but also Written Statement, inter alia, as in the words of Hon'ble Supreme Court in the case of Mst. Ghulam Bibi (supra), (a) Civil Procedure Code (V of 1908), The scope and extent of Order VI Rule 17 of C.P.C. has been expounded through various judicial pronouncements and the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others, reported in PLD 1985 Supreme Court page-345 and subsequent reported case of Ghulam Hyder v. Muhammad Ayub reported in 2001 SCMR page 133 are of relevance here and the legal principle laid down in the above two Judgments besides other decisions can be summarized as follows as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2016 PLP 1 (YLRN)?
The case was heard and decided by the Sindh bench comprising: Muhammad Faisal Kamal Alam, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2016 PLP 1 (YLRN) (MUHAMMAD SHAHID and 6 others — Plaintiffs Versus MUHAMMAD SADIQ and others — Defendants). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- MUHAMMAD FAISAL KAMAL ALAM, J.--- Mr. Iftikhar Javed Qazi, learned counsel for the Plaintiffs states that Mr. Zahid Marghoob, advocate is appearing on behalf of all the Defendants except Defendant No.6, who has already expired. He requests that his CMA No.8489/2013 filed under Order VI Rule 17 C.P.C. be heard, as despite notices till date it has not been opposed by the Defendants' by way of any Counter Affidavit.
Headnotes / Summary
O. VI, R. 17
Scope
Proposed amendments in the plaint would not change complexion of the case and would not affect or prejudice the interest of any party to the pleadings
Application for amendments in the plaint was allowed
Plaintiffs were directed to incorporate the proposed amendments in their plaint within the specified period. [Para. 6 of the judgment] Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Ghulam Hyder v. Muhammad Ayub 2001 SCMR 133 rel.
O. VI, R. 17
Scope
Amendment in the pleadings could be allowed if nature of suit in so far as its cause of action, complexion and character of the case did not change
Amendment should not cause embarrassment to the other party. [Para. 5 of the judgment] Iftikhar Javed Qazi for Plaintiffs. None present for the Defendants. ORDER MUHAMMAD FAISAL KAMAL ALAM, J.
Mr. Iftikhar Javed Qazi, learned counsel for the Plaintiffs states that Mr. Zahid Marghoob, advocate is appearing on behalf of all the Defendants except Defendant No.6, who has already expired. He requests that his CMA No.8489/2013 filed under Order VI Rule 17 C.P.C. be heard, as despite notices till date it has not been opposed by the Defendants' by way of any Counter Affidavit. On the other hand, there is no one from the Defendants' side present today, though in the cause list name of learned counsel for Defendant has appeared. Mr. Iftikhar Javed Qazi, the Learned counsel for the Plaintiffs has argued that the facts leading to filing of the above CMA were, that when the Defendants filed Counter Affidavit to his another application being C.M.A. No.2606/2011 for appointment of Receiver (under Order XL, Rule 1 of C.P.C.), the Defendants disclosed in Paragraph-4 (of their above Counter Affidavit) that one of the Properties being Quarter No.F-376, Korangi, Karachi, was already conveyed (allegedly) to the Defendant No.1 Muhammad Sadiq and another Property being Quarter No.S-28, Korangi, Karachi to Defendant No.2 (b) Muhammad Sabir by way of purported Will dated 10.08.1996. Similarly, it has also been averred in the said Counter Affidavit that Relinquishment Deed has also been executed amongst the legal heirs and, therefore, the Plaintiffs have no share in the disputed properties. With somewhat details, the same has been pleaded in their written statement as well, particularly, in Paragraphs-8 and
9. The Plaintiffs in their listed application has stated on Oath that these new facts about purported disposition of the subject Properties in question by way of abovementioned instruments came to their knowledge only in the above manner, that is, when the abovementioned Counter Affidavit and the written statement were filed. Hence, through instant application, the Plaintiffs are seeking amendments in their pleadings/plaint, to the effect that the above instruments are not valid documents and also seeking amendments in the Prayer Clause that these documents and Will be called up by this Court and adjudged as cancelled, in terms of Section 39 of the Specific Relief Act, 1877. The main case of the Plaintiffs is for distribution of the subject Properties amongst the legal heirs of the Deceased Mst. Habiban Begum, including grand children, as some of sons and daughter of deceased Habiban Begum have also passed way, leaving behind a long list of legal heirs and if these two Properties have been taken out from the ambit of inheritance, the entire case would fall on ground. Secondly, in the existing Prayer Clauses the Plaintiffs have sought various relief(s) against the abovementioned Properties, which, as per learned counsel, have to be amended in view of fresh facts and changed scenario. (i) that nature of the suit in so far as its cause of action is concerned is not changed by the amendment sought; (ii) the complexion and character of the case should not be changed; (iii) the amendments should not cause any embracement to the defendants either in seeking and making similar amendments in their Written Statements, and; "We, however, with respect, to the Judicial Committee, in view of the jurisprudential changes influenced by Islamic ethos in Pakistan are unable to agree that if a defendant is prevented from "starving a plaintiff out of his right" then the amendment should not be allowed. It has often been ruled in recently amendment should not be allowed. It has often been ruled in recently years by the superior Courts of Pakistan that the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice." Adverting to the C.M.A. No.8489/ 2013, if the proposed amendments mentioned in this application are perused, it appears that the same do not change the complexion of the case. Secondly, the proposed amendments made in the Plaint will not embarrass the Defendants, as they will get equal opportunity to amend their pleadings/Written Statement accordingly. Thirdly, the matter is still sub judice and has not been finally decided and, therefore, if the amendments are allowed, it will not affect or prejudice the interest of any party to the proceedings. Therefore, I am inclined to grant the CMA No.8489/2013 and the Plaintiffs are allowed to amend their Plaint by incorporating the proposed amendments mentioned in the above application within 10 (ten) days from the date of this order and copy whereof be supplied to the Defendants' side, enabling them to file an amended written statement, if at all they want to file one. Adjourned to a date in office. ZC/M-30/Sindh Application accepted.
Judgment & Decree
MUHAMMAD FAISAL KAMAL ALAM, J.
Mr. Iftikhar Javed Qazi, learned counsel for the Plaintiffs states that Mr. Zahid Marghoob, advocate is appearing on behalf of all the Defendants except Defendant No.6, who has already expired. He requests that his CMA No.8489/2013 filed under Order VI Rule 17 C.P.C. be heard, as despite notices till date it has not been opposed by the Defendants' by way of any Counter Affidavit. On the other hand, there is no one from the Defendants' side present today, though in the cause list name of learned counsel for Defendant has appeared. Mr. Iftikhar Javed Qazi, the Learned counsel for the Plaintiffs has argued that the facts leading to filing of the above CMA were, that when the Defendants filed Counter Affidavit to his another application being C.M.A. No.2606/2011 for appointment of Receiver (under Order XL, Rule 1 of C.P.C.), the Defendants disclosed in Paragraph-4 (of their above Counter Affidavit) that one of the Properties being Quarter No.F-376, Korangi, Karachi, was already conveyed (allegedly) to the Defendant No.1 Muhammad Sadiq and another Property being Quarter No.S-28, Korangi, Karachi to Defendant No.2 (b) Muhammad Sabir by way of purported Will dated 10.08.1996. Similarly, it has also been averred in the said Counter Affidavit that Relinquishment Deed has also been executed amongst the legal heirs and, therefore, the Plaintiffs have no share in the disputed properties. With somewhat details, the same has been pleaded in their written statement as well, particularly, in Paragraphs-8 and
9. The Plaintiffs in their listed application has stated on Oath that these new facts about purported disposition of the subject Properties in question by way of abovementioned instruments came to their knowledge only in the above manner, that is, when the abovementioned Counter Affidavit and the written statement were filed. Hence, through instant application, the Plaintiffs are seeking amendments in their pleadings/plaint, to the effect that the above instruments are not valid documents and also seeking amendments in the Prayer Clause that these documents and Will be called up by this Court and adjudged as cancelled, in terms of Section 39 of the Specific Relief Act, 1877. The main case of the Plaintiffs is for distribution of the subject Properties amongst the legal heirs of the Deceased Mst. Habiban Begum, including grand children, as some of sons and daughter of deceased Habiban Begum have also passed way, leaving behind a long list of legal heirs and if these two Properties have been taken out from the ambit of inheritance, the entire case would fall on ground. Secondly, in the existing Prayer Clauses the Plaintiffs have sought various relief(s) against the abovementioned Properties, which, as per learned counsel, have to be amended in view of fresh facts and changed scenario. The scope and extent of Order VI Rule 17 of C.P.C. has been expounded through various judicial pronouncements and the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others, reported in PLD 1985 Supreme Court page-345 and subsequent reported case of Ghulam Hyder v. Muhammad Ayub reported in 2001 SCMR page 133 are of relevance here and the legal principle laid down in the above two Judgments besides other decisions can be summarized as follows
(i) that nature of the suit in so far as its cause of action is concerned is not changed by the amendment sought; (ii) the complexion and character of the case should not be changed; (iii) the amendments should not cause any embracement to the defendants either in seeking and making similar amendments in their Written Statements, and; (iv) as a rule, the provision of Order VI Rule 17 of C.P.C., is liberally interpreted, which is not only limited to amend the plaint but also Written Statement, inter alia, as in the words of Hon'ble Supreme Court in the case of Mst. Ghulam Bibi (supra)- "We, however, with respect, to the Judicial Committee, in view of the jurisprudential changes influenced by Islamic ethos in Pakistan are unable to agree that if a defendant is prevented from "starving a plaintiff out of his right" then the amendment should not be allowed. It has often been ruled in recently amendment should not be allowed. It has often been ruled in recently years by the superior Courts of Pakistan that the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice." Adverting to the C.M.A. No.8489/ 2013, if the proposed amendments mentioned in this application are perused, it appears that the same do not change the complexion of the case. Secondly, the proposed amendments made in the Plaint will not embarrass the Defendants, as they will get equal opportunity to amend their pleadings/Written Statement accordingly. Thirdly, the matter is still sub judice and has not been finally decided and, therefore, if the amendments are allowed, it will not affect or prejudice the interest of any party to the proceedings. Therefore, I am inclined to grant the CMA No.8489/2013 and the Plaintiffs are allowed to amend their Plaint by incorporating the proposed amendments mentioned in the above application within 10 (ten) days from the date of this order and copy whereof be supplied to the Defendants' side, enabling them to file an amended written statement, if at all they want to file one. Adjourned to a date in office. ZC/M-30/Sindh Application accepted.