2012 PLP 1976 (CLC)

SHAHID WAHEED, J.

Petitioner, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has called in question order dated 29-8-2012 passed by the learned Additional District Judge, Toba Tek Singh who set aside order dated 25-4-2012 passed by the learned Civil Judge 1st Class, T.T. Singh and allowed the application moved by respondents Nos.3 and 4 seeking amendment in the plaint.

2. Briefly, the facts of the case are that the respondent No.3 and 4 claiming their share in the suit property instituted a called in question gift Mutation No.757 attested on 5-4-2007 in favour of the petitioners. During the pendency of the suit the respondents Nos.3 and 4 filed an application under Order VI, Rule 17, C.P.C. seeking amendment in the plaint so as to correct description 'of square number of land which was inadvertently written as Square No.68 instead of Square No.61; and, also to add prayer of possession as consequential relief in the prayer clause. The petitioners resisted this application by filing a reply. The learned trial Court vide order dated 25-4-2012 dismissed the application. Feeling aggrieved, the respondents Nos.3 and 4 filed a revision before the learned Additional District Judge, T.T. Singh who vide order dated 29-8-2012 accepted the application for amendment in plaint. Hence, this petition.

3. Learned counsel for the petitioners submits that the amendment sought for cannot be allowed as the same will affect and cause change in the nature of the suit; and, that after the conclusion of evidence the amendment in the plaint cannot be allowed.

4. I have heard the learned counsel for the petitioner and perused the record.

5. The respondents Nos.3 and 4 filed a suit for declaration and claimed his share in the suit property. During the pendency of the suit an application .under Order VI, Rule 17, C.P.C. was filed seeking amendment in the plaint so as to correct description of land which was inadvertently recorded as Square No.68 instead of Square No.61; and, add a prayer of possession as consequential relief in the prayer clause of the plaint. The petitioners did not resist the amendment to the extent of correction of Square No. before the learned Additional District Judge but only objected to the addition of prayer of possession in the prayer clause. Now, the sole point which requires determination is whether amendment sought by the plaintiff upto the extent of addition in prayer clause brings any change in the nature of the suit. In my view allowing addition of prayer for possession in the prayer clause of the suit neither would change nature of the suit nor cause of action would be affected. Relief of possession is a consequential relief for declaration. In this regard reference may be made to the case of KARAMAT ALI and another v. MUHAMMAD YOUNAS HAJI and others (PLD 1963 SC 191) wherein one of the questions which came up before the Hon'ble Supreme Court for consideration was whether the suit was barred under section 42 of the Specific Relief Act when the plaintiff to whom the relief of delivery of possession was available failed to claim such consequential relief in order to avoid payment of ad valorem court-fee. It was held by the Hon'ble Supreme Court that the Supreme Court has power even to grant leave to amend the plaint at the stage in which the said matter has reached before the Supreme Court and consequently allowed the amendment and remanded the suit to the learned trial Court for disposal of the same in accordance with law. It was further held in the case of KARAMAT ALI (supra) that by allowing amendment in the prayer clause by adding prayer for possession does not alter nature of the suit. Similarly in the case Mst. BARKAT BIBI v. 'KHUSHI MUHAMMAD and others (1994 SCMR 2240) the Hon'ble Supreme Court refused to grant leave to the defendant against the order of Lahore High Court who was aggrieved by the order of amendment in the plaint allowed by the First Appellate Court whereby prayer for specific performance was added in a declaratory suit. The Hon'ble Supreme Court of Pakistan held that by mere adding an additional prayer in the plaint without changing the contents and averments made in the plaint, the nature, of suit is not changed or altered. It was, further held that such amendment will not change even the cause of action.

6. There is yet another angle to address this issue. The "further relief" contemplated in the proviso to section 42 of the Specific Relief Act, 1877 is a relief which was available to the plaintiff at the time of institution of the suit-and in which he had failed to pray for. What the proviso to section 42 contemplates is the position as obtaining at the date of the suit and not subsequently. The plaintiff's right to maintain a suit for declaratory decree is not affected by the fact that during the pendency of the suit right to possession had also accrued to the plaintiffs. It is settled principle of law that if the original relief claimed becomes, by reason of any subsequent change of circumstances, inappropriate, it is open to a Court of justice to take notice of such events as had happened since the institution of suit and to mold its decree according to the circumstances as they stand at the time when the decree made. It has been held by this Court in the case Mian NIAZ HUSSAIN and another v. IMDAD HUSSAIN (PLD 1965 Lah. 172) that there is no obligation .on the Court to dismiss a suit if it is had under proviso to section 42 of the Specific Relief Act. Section 42 of the Act does not authorize the dismissal of a suit where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. It only forbids the court to make the declaration, the prayer for which is not coupled with a prayer for a consequential relief. A suit which is defective under section 42 should not, therefore, be dismissed for failure on the part of the plaintiff to pray for further relief and the Court should allow the plaintiff to amend the plaint. It is a settled rule of practice not to dismiss suit for non-compliance of the provisions of section 42 but to allow the plaintiffs) necessary amendments. 7.???????? In view of above, this petition lacks merit and is accordingly dismissed in limine. KMZ/M-292/L??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.