2004 PLP 322 (YLR)

Date of hearing:16th October, 2003. On 6-6-1991 the petitioner filed a suit against the respondents Nos. 3 to

5. In the plaint it was stated that the suit-land mentioned in the plaint is owned and possessed by the petitioner as a co-sharer therein and he is entitled to retain the possession till partition. Two weeks before the institution of the suit the respondents have illegally taken possession of land measuring two Kanals shown in red in the -annexed plan. With these averments he sought a decree for possession of the suit -land in terms of section 9 of the Specific Relief Act, 18'

77. The respondents Nos.2 to 5 in their written statement proceeded to state that the land was in possession of Qamar Din who sold .it to the respondents and delivered possession. Later disputes arose between Qamar Din and the respondents. Civil suits were filed which were decreed in their favour. According to the respondents they are continuing in possession since June, 1978 and have raised constructions two years ago. Following issues were framed by the learned trial Court:-- (1) Whether the plaintiff has no cause of action to file this suit? OPD (2) Whether the suit . is barred by limitation? (3) Whether the suit has been wrongly valued for the purposes of court fee and jurisdiction, if so, its effect and correct valuation? (4) Whether the defendants are entitled to special costs under section 35-A, C.P.C.; if so, to what extent? (5) Whether the plaintiff was illegally dispossessed from suit property by the defendants within six month from the date of filing of present suit? (6) Whether the plaintiff is entitled to a decree prayed for? (7) Relief. Evidence of the parties was recorded. Vide judgment and decree dated 8-2-1996 the learned trial Court found the suit to be barred by time under Issue No.2. Issue No.5 was left undecided. Issues Nos. l, 3 and 4 were not pressed. The suit was dismissed. A civil revision was filed by the petitioner which was, heard by a learned ADJ, Chakwal, who dismissed the same on 23-4-1997.

2. Learned counsel for the petitioner contends that this is a case where both the learned Courts below have acted without lawful authority inasmuch as without deciding the issues in terms of section 9 of the Specific Relief Act, 1877, his suit has been dismissed. No one has turned up for respondents Nos.3 to 5 who were duly served and are representated by Mr. Hassan Raza Pasha, Advocate, whose name has been duly listed in the cause list for today but no one has turned up despite several calls. The said respondents are proceeded against ex parte.

3. Now I have already reproduced the contents of the respective pleadings of the parties above. The contents of the plaint squarely bring the case of the petitioner within the ambit of section 9 of the Specific Relief Act, 1877, if proved. It is now well settled that a co-sharer in possession, dispossessed has two remedies. One a suit for separate possession by partition and the second a suit in accordance with the terms of section 9 of the Specific Relief Act, 1877 (reference be made to judgment in the case of Muhammad Shafi and others v. Collector and others NLR 1980 AC 243). The petitioner opted for the second remedy. He had specifically stated that he was dispossessed two weeks before the institution of the suit. Now the learned trial Court did not decide Issue No.5. I have no manner of doubt in my mind that had the issue been decided in favour of the petitioner, he would have been entitled to decree. I may further note here that the Issue -No.2 pertaining to limitation has been decided, to say the least, in a slipshod manner. Without reference to and "discussing the evidence on record, the learned trial Court concluded that the plea of dispossession within two weeks before the suit is an afterthought. The judgment of the learned trial Court is absolutely perverse particularly when it could not help observing under Issue No.5 that basically the land in possession of the defendants was being cultivated by the petitioner through tenant.

4. Now the learned ADJ has proceeded to punish the petitioner by observing that whereas-in the original plaint he had written that he was dispossessed two days ago, he got permission 'to amend his plaint and wrote that he was dispossessed two, weeks ago. The learned ADJ has proceeded to hold the case of the petitioner to be false on wholly unfounded premises. It appears that the learned ADJ, Chakwal, never cared to read Order VI, rule 17, C.R.C. and the law laid down by the superior judiciary of the country while interpreting the said provision of law. The consensus of judicial authority in the entire sub-Continent is that amendments are to be allowed liberally and are to be refused only when the very nature of the suit is changed. Had the learned ADJ cared to read Order VI, rule. 17, C.P.C., he would have found that Court is empowered at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. There is no denial of the fact that the plaint was amended with the leave of the Court. Nobody challenged the order granting leave to amend the plaint. Needless to state that when an amendment is allowed to be made by the Court and it is incorporated in the pleading with the leave of the Court then the same relates back to the date of the suit as originally filed. Reference may be made to the case of list. Barkat Bibi v. Khushi Muhammad and others 1994. SCMR 2240. To my mind the learned ADJ was not even competent to' read the said original plaint muchless proceeding to uphold the said perverse, judgment of the learned trial Court by accusing the petitioner of the so-called change of version. He also fairly resorted to conjectures instead of reading the evidence on record and to decide the issues framed on the basis of the pleadings of the parties particularly Issue No.5.

5. For all that has been discussed above, this writ petition is allowed. The impugned judgments and decrees of both the learned Courts below are declared to be without lawful authority and accordingly set aside. The result would be that the suit filed by the petitioner shall be deemed to be pending before the learned Senior Civil Judge, Chakwal, where he shall appear on 17-I1-2003. The learned Senior Civil Judge shall requisition the records of the suit, summon the defendants and proceed to decide all the issues framed in the case after hearing the parties and reading the entire evidence on record. Since the respondents have not come forward to oppose this writ petition, I am leaving the parties to bear their own costs.

6. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Chakwal. H.B.T./N-363/L Petition allowed.