2020 PLP 68 (CLC)

SHAHID WAHEED, J.

The petitioner through this constitutional petition seeks an order in the nature of writ of certiorari for quashing the order dated 28.04.2016 of the Additional District Judge, Sargodah and order dated 08.02.2016 of the Senior Civil Judge, Sargodha whereby application seeking amendment in the application under section 12(2), C.P.C. was partly allowed.

2. Brief facts giving rise to this petition are that vide Notification dated 03.04.1995 land measuring 18 kanals 14 marlas was acquired for construction of WAPDA Colony at Kot Momin. The Land Acquisition Collector on 29.04.1997 announced the award. Respondent No.1 claimed that he being dissatisfied with the award had made an application to the Land Acquisition Collector requiring him that the matter be referred to the Court for determination of his objections to the amount of the compensation, which had not received any response and thus, he moved this Court through Writ Petition No.9183 of 1999 seeking direction to the Land Acquisition Collector to send reference under Section 18 of the Land Acquisition Act to the Senior Civil Judge, Sargodha. In this petition reply of the Land Acquisition Collector was that the reference could not be sent because application filed by respondent No.1 objecting to the rate of compensation was time barred. Writ Petition No.9183 of 1999 was, however, dismissed in default vide order dated 29.09.1999. Subsequently, on 05.11.2001 respondent No.1 instead of getting Writ Petition No.9183 of 1999 restored, instituted a suit for mandatory injunction and enhancement of compensation of suit land with a prayer that the Land Acquisition Collector be directed to send reference to the Court for correct determination of price of the acquired land; and, that compensation of the acquired land be enhanced and fixed at Rs.60,000/- per marla. The Senior Civil Judge, Sargodha vide judgment dated 25.04.2011 decreed the suit and enhanced compensation of the suit land from Rs.5000/- per marla to Rs.57,000/- per marla with 25% compulsory acquisition charges and 8% compound interest. Afterwards execution proceedings were taken out by respondent No.1. During the course of execution proceedings, the present petitioner filed an application under section 12(2), C.P.C., for setting aside the decree dated 25.04.2011. This application was dismissed vide order dated 20.02.2013. The petitioner thereupon filed an application under section 115, C.P.C., before the Additional District Judge seeking revision of the order dated 20.02.2013. This revisional application was also dismissed vide judgment dated 09.09.2013. The said orders of the subordinate courts were challenged before this Court through W.P.No.27961 of 2013. On consideration of the matter, this Court vide judgment dated 07.07.2015 came to the following conclusion: - "

13. The resume of afore-stated facts and arguments canvassed by the learned counsel for the parties give rise to the intricate questions of law and facts. The questions as to whether: (i) the petitioners were necessary party to be impleaded in proceedings arising out of acquisition of land under the Land Acquisition Act, 1894; (ii) the learned Trial Court had the jurisdiction to entertain and decide the suit of respondent No.1; (iii) the respondent No.1 after dismissal of W.P.No.9183 of 1999 and receiving compensation as determined by the Land Acquisition Collector was estopped to challenge the validity of the award dated 29.4.1997 before the learned Trial Court; (iv) respondent No.1 had obtained judgment and decree dated 25.4.2011 through misrepresentation or fraud; and (v) the accounts of the present petitioners could be attached for satisfaction of the decree dated 25.4.2011. The said questions required detailed investigation. In the present case the learned Trial Court after hearing preliminary arguments adjourned the case to 20.2.2013 for arguments and order in respect of application under section 12(2), C.P.C. Perusal of the record unfolds that on 20.2.2013 none appeared on behalf of the parties before the learned Trial Court as the Bar was on strike. Instead of adjourning the case for final arguments the learned Senior Civil Judge, Sargodha, on the basis of preliminary arguments, which were heard on previous date, dismissed the application under section 12(2) C.P.C. This procedure, in my view, was not valid. Learned Senior Civil Judge was required to afford opportunity of advancing final arguments to the parties and thereafter to decide the case in accordance with law. Non giving of opportunity for submitting final arguments was not only a violation of the principle of natural justice but also Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973, which guarantees fair trial for determination of rights of the parties. Besides above, the learned Trial Court, in view of the controversy involved in the present case was required to frame issues and to provide opportunity to lead evidence to the parties. This exercise was not done in the present case and, therefore, the said procedural irregularities vitiate the final order dated 20.2.2013 of the learned Trial Court. This fact was also not considered by the learned Revisional Court while passing the impugned judgment dated 9.9.2013. Thus, revisional judgment being perverse and infirm in law is not sustainable." On the basis of above said conclusion, constitutional petition, that is, W.P.No.27961 of 2013 was allowed and order dated 20.02.2013 of the Senior Civil Judge, Sargodha as well as judgment dated 09.09.2013 of the Additional District Judge, Sargodha were set aside and declared to have been passed without lawful authority and of no legal effect and consequently, Senior Civil Judge, Sargodha was directed to decide the application under section 12(2), C.P.C. afresh after framing issues and providing adequate opportunities to the parties to lead evidence in support of their respective claims.

3. In post remand proceedings the Trial Court vide order dated 07.12.2015 framed following issues:-

1. Whether the impugned judgment and decree dated 25.04.2011 is result of fraud, forgery and liable to be set aside on the grounds mentioned in the petition? OPA

2. Whether the petition is not maintainable in its present form? OPR

3. Whether the petitioner has not come to the court with clean hands? OPR

4. Whether the petition is time barred? OPR

5. Whether the petitioner has no cause of action and locus standi to file this petition? OPR

6. Whether the petition is filed just to harass the respondent and the respondent is entitled to special costs under section 35-A, C.P.C.? OPR

7. Relief.

4. After settlement of above referred issues, the petitioner on 04.01.2016 moved an application before the Senior Civil Judge, Sargodha seeking permission to make following amendments in the application under section 12(2), C.P.C.: -

5. On consideration of the matter, the Senior Civil Judge, Sargodha vide order dated 08.02.2016 partly accepted the application to the extent of paragraphs Nos.V and VI. The petitioner as well as respondent No.1 challenged the said order through two separate revisional applications before the Additional District Judge, Sargodha. Through consolidated judgment dated 28.04.2016 the Additional District Judge, Sargodha dismissed the revisional application of the present petitioner whereas, civil revision filed by respondent No.1 was partly accepted and the amendment proposed in paragraph No.VI was allowed to be incorporated in the application under section 12(2), C.P.C. So, this petition.

6. The argument of the petitioner's counsel is that if respondent No.1 was aggrieved on account of the Collector either refusing or omitting to make a reference under Section 18 of the Land Acquisition Act, 1894, he, as per principle settled by a Division Bench of this Court in Pak-Arab Refinery's case, had no remedy before the Civil Court and thus, the decree dated 25.04.2011 was without jurisdiction and for that reason through order dated 07.07.2015 passed in Writ Petition No.279617 of 2013 the Trial Court was directed to decide the application under section 12(2), C.P.C. afresh after farming, inter-alia, the issue of jurisdiction. He submits that in the light of order dated 07.07.2005 the petitioner moved an application for amendment of application under section 12(2), C.P.C., which were actually amplification of the plea of fraud, misrepresentation and lack of jurisdiction already made in the application under section 12(2), C.P.C., therefore, the same could not be construed as an attempt to set up a case different from the case already laid and framed; but this fact was not properly appreciated by the Courts below and thus, they fell into error while passing the impugned orders. In support of this argument, reliance is placed on Muhammad Ramzan's case.

7. Arguments canvassed by the petitioner's counsel apparently had weight, so I asked respondent No.1, who is incidentally a practicing Advocate and appearing in person before this Court, to explain his objections as to why the proposed amendments could not be allowed. He replied that the Trial Court could not on remand allow the petitioner to amend the application under section 12(2), C.P.C. in such a way that would reopen the settled questions/issues. In support of this objection he made reference to Muhammad Hussain's case. This objection does not fit in the facts of the present case. Had it been a remanded case to consider a particular question or issue, this objection would have been valid. On the contrary, it is admitted on all hands that through judgment dated 07.07.2015 passed by this Court in W.P.No.27961 of 2013, the Trial Court was directed to decide the application under section 12(2), C.P.C. afresh after framing issues and providing adequate opportunities to the parties to lead evidence in support of their respective claims, meaning thereby, this was not a remand on a particular or specific issue, rather remand was made for the consideration of the entire case. It was thus, open to the Trial Court to allow the proposed amendments within the parameters prescribed under Order VI, Rule 17, C.P.C. as held in Masood Ali's case, which was even followed in Muhammad Hussain's case (supra).

8. The second objection of respondent No.1 is based on Ghulam Yasin's case. It is submitted that all those facts that were omitted to be mentioned in the application under Section 12(2), C.P.C. could not be allowed to be incorporated through amendment for that would open room for additions, after-thoughts and improvements. This objection sans merit. In the above-referred Ghualam Yasin's case amendment was sought in the plaint of suit for possession through pre-emption. As the right of pre-emption is strictissimi juris, the Hon'ble Supreme Court in that case held that a plaint in a pre-emption case was more like an FIR of a criminal case, therefore, no omission howsoever, fatal could be allowed to be supplied by means of an amendment. This principle cannot be applied to the present case for the Trial Court in a suit for mandatory injunction, exercising the powers under Section 18 of the Land Acquisition Act, 1894 had enhanced compensation of the acquired land. Here the petitioner maintained that since the decree dated 25.04.2011 was obtained through fraud and misrepresentation from the Court which had no jurisdiction, the proposed amendments being amplification of the grounds already mentioned in the application under section 12(2), C.P.C. could be allowed at any stage of the proceedings. This plea could not be repelled on the ground that it was an after-thought to improve the case or to supply the omissions. In fact this plea was required to be examined in the light of remand order dated 07.07.2015 and on the basis of settled principles for allowing or declining amendments in the pleadings of the civil suits other than suit for possession through pre-emption.

9. Lastly, respondent No.1 relying upon Abaid Ullah Malik's case submitted that amendments in the application under section 12(2), C.P.C. were not sought with bona fide intentions and thus, could not be allowed. This objection is also misconceived. Reference to the judgment rendered in Abaid Ullah Malik's case is inapt as the same was handed down in a pre-emption case. In the present case the Trial Court besides other questions as pointed out by this Court in paragraph No.13 of the remand order dated 07.07.2015 made in W.P.No.27961 of 2013 (reproduced hereinabove in paragraph No.2 of this judgment) is to determine the question of jurisdiction, which is of vital importance and cannot be allowed to be ignored on the basis of defective pleadings and thus, any attempt to cure the defect by giving details of fact pointing lack of jurisdiction of the Trial Court while passing decree dated 25.04.2011 cannot be allowed to be stigmatized or held mala fide.

10. Now, I address the question as to whether the proposed amendments could be allowed to be incorporated in the application under section 12(2), C.P.C. Law relating to this question is provided in Order VI Rule 17, C.P.C., which has been subject matter of different cases before superior courts. All those precedents for allowing or declining amendments in the pleadings were examined by this Court in Sakhi Muhammad's case and it was held that: - (i) The power under Order VI, Rule 17 is discretionary and should be used judicially on consideration of special circumstances of each case and the necessary conditions are (a) if the amendments do not cause injustice to other side; (b) amendment is necessary for determination of real question in controversy; (ii) No party can be allowed to introduce new cause of action by way of amendment; (iii) The Court ordinarily should allow the amendment unless it is found that the applicant was acting mala fide or injustice or injury was likely to cause to the opposite party which could not be compensated by cost; (iv) Where due to subsequent events original relief sought became inappropriate for deciding the controversy, the amendment can be allowed to shorten the litigation; (v) The Court can allow to cure defective pleadings so as to constitute a cause of action where there was none, provided necessary conditions such as payment of additional court-fee or costs of other side are complied with except when there is lapse of time or new cause of action is created; (vi) Where the Court is lacking inherent jurisdiction over the subject matter, it cannot allow amendment to bring the suit within its jurisdiction; (vii) Introduction of inconsistent or contradictory allegations cannot be allowed; (viii) Delay for itself, cannot be adequate reason for refusing amendment. The Courts below were required to appraise the proposed amendments in the light of above stated principles. Perusal of record indicates that the Trial Court through its order dated 08.02.2016 allowed amendments proposed in paragraphs No.V and VI and declined others whereas the Revisional Court only allowed amendment proposed in paragraph No.VI. The reason for disallowing amendment proposed in paragraph No.V was that it would change the nature and complexion of the proceedings. This reason is valid and thus, sustained. However, it is not clear from either of the orders of the lower courts as to what was the reason for allowing amendment proposed in paragraph No.VI and declining others? This was not proper. I am thus, obliged to examine the proposed amendments. After appraising contents of the application filed by the petitioner under Order VI, Rule 17, C.P.C. I find that the amendments proposed through paragraphs Nos.III, IV, VI, VII and VIII are necessary for determination of all those questions which were indicated in paragraph No.13 of the remand order dated 07.07.2015 made by this Court in W.P. No.27961 of 2013 and that the same neither cause injustice to respondent No.1 nor introduce new cause of action. In fact the petitioner through these amendments wants to cure defective pleadings by giving details of the plea of fraud, misrepresentation and lack of jurisdiction. The proposed amendments are consistent with the case already set up by the petitioner and thus the same may be allowed so that respondent No.1 may also have opportunity of meeting the allegations and lead evidenced in order to do complete justice.

11. For the foregoing reasons, this constitutional petition is allowed and resultantly by setting aside order dated 28.04.2016 of the Additional District Judge, Sargodha and order dated 08.02.2016 of the Trial Court, the application of the petitioner seeking amendment in the application under section 12(2), C.P.C. to the extent of Paragraphs Nos. (III), (IV), (VI), (VII) and (VIII) is allowed. The Trial Court shall fix a date for filing the amended application under section 12(2), C.P.C. and after obtaining reply it shall proceed to decide the same in accordance with law as expeditiously as possible preferably within a period of six months. ZC/F-27/L Petition allowed.