2000 PLP 1593 (YLR)

SABIHUDDIN AHMED, J.‑‑‑Both these petitions arise out of an order passed by IInd Additional District Judge. Badin, dated 6‑3‑1999 dismissing Civil Revision No. 31 of 1998 preferred by the petitioner and allowing Civil Revision No. 32 of 1998 preferred by the respondents Nos. 1 to 4.

2. Briefly, the facts are that the petitioner filed S.C. Suit No. 72 of 1996 claiming possession, damages and mesne profits in the sum of Rs. 20,000 in respect of certain pieces of land (hereinafter mentioned as suit land) in Deh Panoo Baeed, Taluka and District Badin alleging that the respondents were his Haris in respect of the suit land and had given up tenancy rights but refused to deliver the possession and shift their houses from the land so as to enable the petitioner to cultivate the same for his own benefit. According to the petitioner, owing to clerical mistake the suit property was wrongly described in the plaint as consisting of Block Nos. 1/12 and 15 though in fact, it comprised Block No. 29/7 measuring 1‑12 acres and Block No. 29/ 10 measuring 15 Ghuntas totalling 1‑27 acres. After written statement was filed and issues settled, but before any evidence could be led by either party, the petitioner detected the mistake and submitted an application purportedly under section 153, C.P.C. praying that he be allowed to make necessary correction. The respondents filed a counter affidavit alleging that more than 2 years had passed since the filing of the suit and issues had already been settled, therefore, the petitioner/plaintiff could not be allowed to seek the amendment at such a belated stage. After hearing the parties learned trial Court held that the objections raised by the respondents/defendants did not merit consideration and granted the application, vide his order, dated 22‑10‑1998.

3. The respondents preferred Civil Revision No. 31 of 1998 calling in question the aforesaid order and the learned Additional District Judge allowed the same holding that the matter had become ripe, the application had been made with the sole mala fide intention to linger on proceedings and grant of the application would amount to changing character of the suit. This order has been impugned in C.P. No. D‑185 of 1999.

4. Through another application purportedly made under section 151, C.P.C. in the same suit the petitioner prayed that the suit land be demarcated on the basis of the existing Rubkari. This application was also contested by the respondents alleging that the Rubkari was a managed document that is why the application was submitted at such later stage. It was alleged that the petitioner could not be allowed to change the character of the suit or introduce new evidence at such later stage after the suit had become ripe for final hearing. As regards this aspect of the matter the learned trial Court granted the petitioner's application and Mukhtiarkar Badin was directed to carry out demarcation.

5. The respondents preferred Civil Revision No. 32 of 1998 against this order and the learned Additional District Judge/ Revisional Court allowed the same holding that the petitioner had remained silent from the date of institution of the suit till the framing of the issues; the petitioner had remained silent for two years and his conduct, therefore, showed that the application was mala fide, intended to improve his case and merited no consideration. As such this revision application was also allowed, and the petitioner has called in question the aforesaid order vide C. P. No. D‑187 of 1999.

6. We have heard Mr. Noor Ahmad Memon, Advocate for the petitioner and Mr. Muhammad Iqbal Qassar, Advocate for the, respondents. We may at the outset observe that this Court does not normally interfere with orders passed by the subordinate Courts in the exercise of Revisional jurisdiction but only when such orders are beyond the scope of jurisdiction available to such Courts and are passed much against the settled principles of law and parameters of judicial discretion. Coming to the merits of the C.P. No. D‑185 of 1999 it may be stated that though titled as an application under section 153, Cr.P.C., the petitioner's application was one for amendment of plaint covered by Order VI, ‑Rule 17, C.P.C. It is settled law that citing a wrong provision of law in the title of the application is no ground for refusing to exercise jurisdiction vested by law. Having gone through the record we have noticed that in Form VII the suit land has been described as Block Nos.29/7 and 29/10 and the respective areas of the aforesaid block numbers have been shown to be 1‑12 and 0‑15 acres respectively. We are, therefore, convinced that the misdescription in the plaint was only founded upon a clerical mistake. Even otherwise, ever since the celebrated judgment of the Honourable Supreme Court in Ghulam Bibi v. Sarsa Khan (PLD 1985 SC 345 the superior Courts have consistently held that the power to allow amendment in pleadings ought to be liberally exercised. Amendments in the pleadings have been allowed even at appellate stage up to the level of the Supreme Court itself and, therefore, delay per se in making an application is hardly relevant. We fail to see upon what legal principle the learned Additional District Judge, came to the conclusion that a clerical error should not be allowed to be rectified merely because issues had been framed though no evidence had been recorded or that by a mere change in the description of the property the character of the suit would be changed. The view that the respondents would be prejudiced is equally untenable inasmuch as once amended plaint has been filed, the defendant is always given an opportunity to file an amended written statement.

7. Coming to C.P. No. D‑187 of 1999 we are constrained to observe that we find the reasoning of the learned Additional District Judge equally untenable. It has been observed in the impugned order itself that the petitioner had requested for demarcation on the basis of Robkar, dated 17‑12‑1998 and the application under section 151, C.P.C. was moved on 25‑5‑1998. Yet the learned Additional District Judge was persuaded to observe that the conduct of the petitioner was mala fide because the petitioner had remained quiet for a period of more than 2 years and did not move the application just after institution of the suit in 1996. In any event demarcation on the basis of Rubkari by itself did not confer title upon any of the parties, and eventually question of ownership had to be decided on the basis of evidence.

8. An, equally important aspect of the matter is that section 115, C.P.C. confers a limited jurisdiction upon a Court exercising revisional powers. In the impugned judgment the learned Additional District Judge has not been able to show how the order of the trial Court suffered from ‑ defect of the jurisdiction or discretion was exercised with material irregularity. Courts exercising revisional powers need to be cautions while interfering with discretionary orders passed by subordinate Courts and must keep in view the constraint upon their own jurisdiction.

9. In view of the above we would allow both these petitions and hold the orders passed by the learned Additional District E Judge, allowing Civil Revisions Nos.31 and 32 of 1998 to be without lawful authority and of no legal effect. Q. M. H. /M. A. K./A‑51/K. Petitions allowed.