P L D 2002 Quetta 38 (PLP)

AMAN‑UL‑ALLAH KHAN, J.‑‑‑Petitioner Muhammad Ayyub has filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, challenging the order dated 30‑5‑2001, passed by learned Additional District Judge, Pishin, whereby application filed by respondents under Order VI, rule 17, C,P.C. has been allowed in Civil Revision No.6 of 2001. Rrl;,fiy the facts are; that respondents filed a suit for ejectment in the Court of Senior Civil Judge, Pishin, in respect of property bearing Khasra No.514 of 1985 measuring 2 rods 24 pols mutated in the name of petitioners vide Mutation No.

160. The suit was resisted by petitioners. After framing of issues, the parties were directed to lead evidence. The suit was proceeded on the pattern of an eviction application and respondents filed affidavits of witnesses. After cross‑examination on one of the witness by the counsel for petitioners, the respondents filed en application under Order VI, rule 17, C.P.C., seeking amendment in the plaint. It was averred in the application that, property in dispute was mutated in the name of respondents by way of ' Sahat‑e‑Indraj' but inadvertently it was mentioned. in the plaint that they had purchased the same from its previous owner Bangul son of Alam Jan. The application was contested by petitioner, on the ground that, new plea is being set up and if amendment is allowed, it would change the complexion of the suit, which is against the spirit of Order VI, rule 17, C.P.C. After hearing the parties, learned trial Court dismissed the application vide Order dated 3‑2‑2001. Being dissatisfied from the same, respondents filed a revision petition before the learned Additional District Judge, Pishin, who after hearing the parties, allowed the same vide judgment dated 30‑5‑2001. Hence this petition. Mr. Muhammad Arshad. Chaudhry, learned counsel for the petitioner contended; that the order dated 3‑2‑2001, passed by learned Senior Civil Judge, Pishin, rejecting the application of petitioner was not a revisable order, thus the learned Additional District Judge, has misexercised the jurisdiction in accepting the petition. He further argued that if the amendment is allowed, it would change the entire complexion of the suit and that, by filing application under Order VI, rule 17, C.P.C., the respondents had set up a new plea, which cannot be substituted with the plea already set up in the plaint. In support of his contention, learned counsel relied on the following case‑law:‑‑ (1) PLJ 1987 AJK 170, (2) PLJ 1993 AJK 75, (3) PLD 1993 SC 88, (4) 1994 SCMR 2293, (5) 1999 CLC 1287, (6) 1999 CLC 1195, (7) 2001 MLD 614 and (8) 2001 MLD 1083, Mr. Mumtaz Hanti Baqri, learned counsel, appearing for the respondents contended; that the order dated 3‑2‑2001, was a revisable order and the learned Additional District Judge, has lawfully exercised the revisional jurisdiction as it was within his powers to set at naught the order of trial Court, and further impugned order passed by trial Court comes within the definition of a 'case decided' and thus, was a revisable order. He further argued that as far as the contention of respondents regarding change in complexion of the suit is concerned it remains the same and further no new case was being set up or new plea was being taken. I have heard the learned counsel for parties and also perused the record of case. It may be pointed out that, rejection of an application under Order VI, rule 17, C.P.C. is a 'case decided' and is amenable to revisional jurisdiction. The contention that, order rejecting application under Order VJ, rule 17, C.P.C. is not a revisable order, is devoid of force. The case‑law A referred to by learned counsel is inapt and not applicable to the case in hand. In this regard reference can be made to PLD 1973 SC 507 (Bashir Ahmad v. Qaisar Ali Khan and 2 others) wherein the Hon'ble Supreme Court made following observations:‑‑ "On the question of maintainability of the revision petition in the High Court, the only point made by the learned counsel is that the order of the trial Court refusing the plaintiffs' prayer for an amendment of the plaint, as well as their application for impleading the Thal Development Authority was not a case decided within the meaning of section 115 of the Code of Civil Procedure. In support of this submission he placed reliance on Muhammad Swaleh v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97; Saifullah Malik v. The Government of West Pakistan PLD 1969 Lah. 506 and Muhammad Umar Beg v. Sultan Muhammad Khan PLD 1970 SC

139. An appraisal of the cases cited by the learned counsel shows that they deal generally with the scope of revisional powers conferred on the High Court by section 115 of the Code of Civil Procedure, but not with the precise question of the maintainability of a revision petition in certain situations. There has undoubtedly been a conflict of judicial opinion as to the meaning of the phrase 'case decided' but it seems to us that the view taken by the majority of the Full Bench of 7 Judges of the High Court of West Pakistan in S. Zafar Ahmad v. Abdul Khalique (PLD 1964 Karachi 149) states the position correctly, namely, that section 115 would be attracted if a Court subordinate to the High Court has given a decision in respect of any state of fact after judicially considering the same. The decision need not necessarily dispose of the whole matter or suit pending before the subordinate Court. Two of the present Judges of this Court (Muhammad Yakub Ali and Waheeduddin Ahmad, JJ.) were party to this decision. Applying this test, it would appear that the order made by the trial Court in this case, rejecting the two applications made by the plaintiff‑respondents, did amount to a case decided, and was, therefore, amendable to correction in the exercise of the revision power of the High Court, if it fell within the ambit of any of the clauses of section 115 of the Code." Coming to the next contention of learned counsel for petitioner, that intended amendment if is allowed, would change the complexion and nature of the suit. In this regard, it is appropriate to refer to the pleadings of parties. In the plaint, it is mentioned that, property belonged to Bangul Khan and the respondents had purchased the same from him vide Mutation entry dated 5‑7‑1976. Now respondents want to make amendment in the plaint to the extent that the said property was mutated in their name by way of Sahat e‑Indraj. Be that as it may, in the suit the respondents have claimed to be the owner of property by way of purchases, whereas now they want to substitute the word 'purchase' by way of 'Sahat‑e‑Indraj' and in our opinion, obviously, that would not change the status of respondents as owners and further it is any admitted fact that, respondents are claiming ownership of the property on the basis of Mutation Entry No. 160 and the same is not being substituted/changed for another entry regarding mutation. Thus, the learned Additional District Judge, by allowing the amendment had dilated upon the said aspect of the case, that it would not change the complexion or nature of the suit, as even if the word 'Sahat‑e‑Indraj' is substituted with the word 'sale' the status of the respondents as owner would remain the same. Even otherwise there is plethora of case‑law on the point that, Courts should be liberal enough to allow amendment, if it does not set up a new‑ case or change the, complexion of the suit. 4n this regard, reference if needed can be made to PLD 1985 SC

345. Reverting to the contention of learned counsel for petitioner that a new case is being set up, it may be observed that the proposed amendment would not change the status of respondents in the suit and remains the same as that of owners ‑and the mutation entry also does not change, hence it would not prejudice 'the case of petitioner, if the respondents claim ownership on the basis of 'Sahat‑e‑Indraj' or 'purchase'. The respondents have to prove their contention 'set up in the plaint. In view of the above, we are inclined to hold, that the findings arrived at by the learned Additional District Judge, are unexceptionable and does not warrant any interference by this Court in writ jurisdiction. As a result of above, the petition being devoid of merit, is dismissed. However, before parting with the judgment, it may be observed that, in case amended plaint is filed, the petitioner will be at liberty to file amended written statement. Parties are left to bear their own costs, H. B. T./114/Q Petition dismissed