P L D 2000 Peshawar 10 (PLP)

SHAHZAD AKBAR KHAN, J.‑‑‑This writ petition is filed to challenge the legality and correctness of the undated order passed by Banking Court‑II. N.‑W.F.P., Peshawar (respondent No.3), whereby he has accepted the application of the respondent‑Bank and has allowed amendment in the plaint. and order dated 22‑2‑1998 of the same authority, vide which ex parte decree for the recovery of Rs.2,80,561 in favour of the plaintiff and against the defendant/petitioner was passed.

2. The facts of the case for the purpose of appreciating the controversies between the parties are that for purchase of tractor with implements, establishment of tube well and dairy farm, the petitioner/defendant was advanced financial assistance for a sum of Rs.2,47,000 on 4‑12‑1988 on the terms and conditions mentioned in the agreement deed of the same day by the Agricultural Development Bank of Pakistan through its Manager, Tank Branch. The petitioner failed to make payment of yearly instalments since 7‑1‑1991 and an amount of Rs.1,73,257 was shown outstanding against him on 28‑2‑1993, for the recovery of which, the Bank filed a recovery suit before the Banking Tribunal, N.‑W.F.P., Pehsawar on 27‑9‑1994. However, the petitioner admitted his liability to the demanded claim of the respondent and, thus, a decree was passed in its favour which ended on payment of the full decretal amount by the petitioner. Nonetheless, the respondent‑Bank sought review of the said order of the Banking Tribunal after lapse of two years only on the ground that there was a mistake in the plaint with regard to the claimed amount. During pendency of the said review application, amendment of the plaint was also sought under Order 6, Rule 17 read with section 151 of the Civil Procedure Code for claim of some additional amount. Thereafter vide undated order of the learned Judge Banking Court‑II, Peshawar, the plaintiff‑Bank was allowed to file amended plaint and subsequently an ex parte decree for recovery of Rs.2,80,561 against the petitioner in favour of the Bank was passed by the said forum on 22‑2‑1998 which has aggrieved the defendant/petitioner to challenge the same through the present Constitutional petition.

3. Learned counsel for the petitioner contends that in the instant case the decree was passed for a sum of Rs.1,73,257 on 26‑10‑1994 and the entire decretal amount was paid to the respondent‑Bank in various instalments ending on 17‑2‑1996 and, as such, in execution proceedings the decree was satisfied. In this respect, a certificate was issued by the Bank on 17‑3‑1997 wherein it was stated that the petitioner in loan Case No.018604 has deposited total amount of Rs. 1,73,

257. This certificate is Annexure 'B' to the writ petition.

4. He further contended that the respondent No. l filed a review petition on 19‑5‑1996, which was duly contested and the written reply was submitted by the petitioner and prior to the decision of this review petition, the respondent Bank submitted another application under Order 6, Rule 17, C.P.C. for amendment in the plaint. The review petition was contested by the petitioner, however, the said application for amendment was accepted, which is in sheer violation of the law. 'He contended that since this was a closed and past subject and could not be reviewed by seeking any kind of amendment in the plaint therefore, the learned respondent No.3 after decreeing the suit on 26‑10‑1994 and subsequent recovery of the entire decretal amount had become functus officio and had no authority in law to reopen the closed chapter. In this way, respondent No.3 had exceeded the jurisdiction vested in him by law and thus, the impugned orders and ex pane decrees are passed without lawful authority and in excess of jurisdiction.

5. On the other hand, learned counsel for respondent‑Bank has urged that since there was a clerical mistake in the judgment of respondent No.3, therefore, by invoking the jurisdiction under section 151/152, C.P.C., the respondent- Bank was within its rights to ask for amendment in the plaint by having a recourse to Order 6, Rule 17, C.P.C. and, as such, the order of learned respondent No.3 is legal and proper for the ends of justice.

6. We enquired from the learned counsel for the respondent‑Bank whether the provisions of the C.P.C. are applicable to the proceedings before respondent No.3 in such‑like matters, to which the learned counsel replied in the positive We, therefore, in view of ‑his positive answer perused the relevant provisions, i.e. sections 151 and 152 of the C.P.C. which for the sake of convenience are reproduced below:‑‑ "Section

151. Saving of inherent .powers of Court.‑‑Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Section

152. Amendment of judgments, decrees or orders.‑‑Clerical or arithmetical mistake in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

7. A plain reading of these sections shows that section 152, C.P.C. deals with the situation where there is clerical mistake in the judgments, decrees or orders. In the instant case, it is obvious that there is no such mistake in the judgment and decree o1' the Court passed on 26‑10‑1994, .as the claim of the respondent‑Bank was decreed on 26‑4‑1994 in its totality, therefore, the respondent cannot avail the benefit of section 152, C,P.C,

8. Now adverting to the provisions of Order 6, Rule 17, C.P.C. which deals with the amendment of the plaint, it speaks that the Court may at any stage of the proceedings allow either party to amend the plaint on such terms as may be just and necessary for the purpose of determination of the real controversy between the parties. This provision of law also deals with the situation where the proceedings are pending in the Court and, of course, at any stage of the proceedings the amendment can be allowed. But in the instant case, no proceedings were pending before respondent No.3 as the case was finally determined, the decree was passed which was executed, the entire decretal amount was recovered from the petitioner, therefore, by no stretch of imagination it can be said that any kind of proceedings were pending before respondent No.3.

9. Moreover, as it is stated by the learned counsel for the respondent that the C.P.C. is. applicable to the cases before respondent No.3 then another insurmountable hurdle in his way is Order 2, Rule 2, C.P.C. which too for the sake of convenience is reproduced below:‑‑ "Suit to include the whole claim.‑‑(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of hart of claim.‑‑Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. . (3) Omission to sue for one of several reliefs ‑‑A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs he shall not afterward sue for any relief so omitted. "

10. A plain reading of the rule clearly shows that if any portion of the claim is either omitted or intentionally relinquished, then the plaintiff shall not afterwards sue in respect of the omitted portion or relinquished. Thus, the application of Order 2, Rule 2, C.P.C. has not only put an insoluble bar on the respondent‑Bank but has also created a valuable right in favour of the petitioner.

11. When the learned counsel for the respondent was confronted with the above situation emanating from Order 2, Rule 2, C.P.C. he could not meet the said situation so as to take himself out of the net of the said provision of law.

12. In view of the aforesaid discussion and in the legal and factual specturm of the matter, there is no difficulty in holding that the impugned order was passed by respondent No. 3 in excess of his jurisdiction and in sheer violation of the provisions of Order 6, Rule 17, C.P.C. which has tainted the impugned order with illegality.

13. It is also a settled position of law that if an order is passed by any Court, Tribunal or authority in violation of law and without lawful authority, the same can very conveniently be questioned in the Constitutional jurisdiction of this Court under Article 199 of the Constitution, and to remedy any mischief arising out of such illegal order.

14. We, therefore, after considering the rival submissions of both the sides and going through record of the case and the relevant provisions of law, are of the considered opinion that the impugned undated order allowing amendment in the plaint and the subsequent decree dated 22‑12‑1998 emanating therefrom are illegal, without lawful Authority and of no legal effect. The same are, therefore, I set aside and the writ petition is accepted accordingly. H.B.T./453/P Petition accepted.