P L D 2019 Balochistan 59 (PLP)

ABDULLAH BALOCH, J.

This Civil Revision Petition is directed against the order dated 19th November, 2018 (hereinafter referred as "the impugned Order") passed by the learned Civil Judge-IV, Quetta (referred hereinafter as "the trial Court") whereby the application under Order VI, Rule 17, C.P.C. filed by the petitioner was rejected.

2. Relevant facts for disposal of the instant Petition are that the petitioner/plaintiff filed a suit thr declaration, partition, permanent injunction and cancellation of agreements dated 15th October, 2011 and 30th December, 2011 against the respondents with the averments that the petitioner/plaintiff is co-owner with defendants Nos.1 to 3 and purchased the property under Khasra Nos. 30, 31, 32, 33, 34, 35, 36, 37 and 38 total area consisting upon 8809 sq. ft. Ward No.26, Tappa Urban No.2 City Multani Muhalla, Patel Road, Quetta from Meer Ishaq Zehri in which the share of the petitioner/plaintiff is 2202 sq. ft. and it was agreed that the property will be transferred in the name of defendant No.1 and further two months before filing of the suit when the plaintiff came back from Turkey was informed that the property was further sold out to defendants Nos.2 and 4 through an agreement dated 15th October, 2011 and no approach was communicated with the petitioner/plaintiff.

3. The suit was contested by the defendants by means of filing written statement, in the meanwhile, the respondents Nos.7 and 8 filed an application under Order I, Rule 10, C.P.C., which was also contested by the petitioner/plaintiff, after hearing the parties learned trial Court allowed the application of the interveners vide order dated 20th March, 2016 and directed the petitioner/plaintiff to amend the title of suit by impleading interveners as defendants, accordingly in compliance whereof the title was amended and the interveners were impleaded as defendants Nos.7 and

8. On coming to know new facts from the application of interveners the petitioner/plaintiff filed an application under Order VI, Rule 17, C.P.C. for amendment of his plaint, but the same was rejected vide impugned order as mentioned hereinabove in para No.1 .

4. Notices have been published for respondents Nos.1 to 4 and 7 to 8 in daily Bakhabar Quetta on 12th April, 2019, but they had failed to appear accordingly proceeded against ex-parte on 23rd April, 2019. 5 Heard the learned counsel for the parties and perused the record minutely, which reveals that the petitioner/plaintiff filed a suit, for declaration, partition, permanent injunction and cancellation of agreement dated 15th October, 2011 and 30th December, 2011 in the trial Court initially against the respondents Nos.1 to 6: however, during the course of pendency of the suit, respondents Nos.7 and 8 filed an application under Order l, Rule 10, C.P.C. which was allowed and suit was amended by impleading the respondents Nos. 7 and 8 as defendants Nos. 7 and 8 and it was come in the knowledge of the petitioner/plaintiff that respondents Nos. 7 and 8 entered into an agreement of sale with respondent/defendants Nos. 1 to 4 and claimed to be purchaser of land bearing mutations Nos.106 and 1206 and also in possession of the said property and also claimed that they have raised construction and invested a huge amount in the said property vide agreement dated 30th May, 2016 and 18th June, 2016 and after payment of consideration amount, the mutation entries were also registered with the name of respondents Nos.7 and 8 (intervener namely Saleem Javed) and it was further averred from the application of the interveners that defendant No.1 also executed Irrevocable General Power of Attorney dated 20th September, 2016 in the favour of applicants/intervener (Saleem Javed) and also executed an agreement dated 7th October, 2017 meaning thereby all the consideration amount were paid by the interveners and they have constructed 12 mini units (bungalow type) measuring 700 sq. ft. each and thereafter sold out some units to different people.

6. Perusal of record reflects that at the time of filing of suit the petitioner/plaintiff was not in the knowledge of the above stated facts, which were brought by the interveners as such, he filed an application under Order VI, Rule, 17, C.P.C. to amend his suit; however, in the application for amendment of suit there are so many amendments have been sought by the plaintiff/petitioner and his application was rejected by means of impugned order, prima facie it appears that some new facts as highlighted by interveners were not in the knowledge of the plaintiff/petitioner at time of filing of suit.

7. It is settled principle of law to ask for an amendment is an inherit and vested right of plaintiff subject to two conditions i.e. (i) the proposed amendment shall not alter and change the character and complexion of the suit and (ii) all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties and this right is governed by the provision of Order VI, Rule 17, C.P.C. Legally any defect in the form of a suit shall not culminate in dismissal of suit because all the rules of procedure are meant to foster the cause of justice. Similary, the court is bound to consider the request of amendment in a broader perspective and remain quite liberal and flexible while exercising jurisdiction under Order VI, Rule 17, C.P.C. The latter portion of the Order VI, Rule 17, C.P.C. costs a duty upon court to grant permission for amendment as a matter of right if it is essential and inevitable for the resolution of real controversy and just decision of the case.

8. In some of the cases the Court has exercised suo motu jurisdiction even without any formal written request of the plaintiff, reliance is placed on the case law titled as "Javed Iqbal v. Abdul Aziz and another" reported in PLD 2006 SC 66, relevant operative portion is reproduced as under: "

13. On its part, in the exercise of its revisional jurisdiction, Lahore High Court was perfectly justified in observing that the suit could not fail merely for the reason that some relief which was available and not been claimed. Honourable Judge of the High Court is perfectly justified in observing that the suit could not have been dismissed on account of any defect in form. In view of the assertion of the respondents that they had passed on total sale consideration and obtained possession in part performance of sale, they would be entitled to full protection of their possession within the contemplation of section 53-A of the Transfer of Property Act, 1882. In our considered opinion, both the Courts below failed to take into account the legal impact and effect of the provisions contained in section 53-A of the Transfer of Property Act and the provisions of Code of Civil Procedure, 1908 providing sufficient mechanism for doing complete justice to the parties. Evidently and essentially, this was a fit case for exercise of jurisdiction under Order VI, rule 17, Order VII, rule 7 and section 151, C.P.C., rather than attaching much importance to the defective drafting of the plaint and the prayer clause. The view taken by the High Court in exercise of its revision jurisdiction, in our considered opinion, does not suffer from any inherent legal infirmity misreading of record, misconception of law or error of jurisdiction. To the contrary the judgment of the High Court in the peculiar facts and circumstances of the case, on the face of the record, appear to be just, fair, equitable and expedient to achieve the ends of justice and to defeat the mischief. The order of remand is, therefore, fully justified and not open to any exception."

9. In view of the above dictum laid down by the Hon'ble Supreme Court of Pakistan the proposed amendments, if not allowed, the very purpose of the suit would be frustrated, multiple litigations will be started between the parties; even otherwise, certain facts for just decision and resolution of the real controversy between the parties are apparent in the case in hand, if proposed amendments i.e. para

2. A, C, E and F, a, b, c are allowed, no prejudice would cause to either of the parties. Learned trial Court while rejecting the application has failed to consider the above aspect of the case, as such, the order passed by the learned trial Court suffers from inherent, legal infirmity, misreading of record, misconception of law, is not sustainable, accordingly the petition is accepted. The impugned order is set aside. The petitioner/plaintiff is allowed to amend the suit to the extent of proposed amendments i.e. para

2. A, C, E, and F, a, b, c. Parties are left to bear their own costs. ZC/40/Bal. Revision allowed.