1988 PLP 1007 (CLC)

(b) Civil Procedure. Code (V of 1908)‑‑ ‑‑‑S. 141‑‑Objection petition‑‑Doctrine of lis pendens‑‑Petitioners' father agreed :o give land in dispute to his wife in lieu of her dower and suit filed by latter to recover dower ended in compromise‑‑Objection petition was filed by minor sons of petitioner in execution proceedings, instituted by wife, on ground that said property stood gifted to them from their father‑‑Again amendment in objection petition was sought to assert that gift had been completed before entry and attestation of mutation‑‑Petitioners father and guardian through said amendment appearing to have invented a device to deprive his wife of property given to her in lieu of dower‑‑Transaction of gift, held, was hit by doctrine of lis pendens and in order to negate this doctrine an amendment had been sought so as to predate transaction of gift‑‑Amendment in objection petition disallowed in circumstances. (c) Constitution of Pakistan (1973)‑‑ ‑‑‑Art. 199‑‑Constitutional jurisdiction Discretion exercised by Court below‑‑Interference declined in constitutional jurisdiction. Ghulam Fareed for Petitioners. This Constitutional petition is intended to quash the order, dated 6‑10‑1987 passed by Syed Ijaz Hussain Shah, learned Civil Judge Ist Class, Hasilpur, and that of the learned Additional District Judge, Bahawalpur, dated 2‑12‑1987 who had declined to allow the petition of the petitioners for the amendment of an objection petition.

2. The facts leading to this writ petition, in substance, are that Hashid Ahmad and Mst. Shamshad Begum are the husband and wife. Rashid Ahmad did not pay the amount of dower to Mst. Shamshad Begum and the latter was constrained to file a suit on 24‑2‑1983 for the recovery of the dower amount. The suit ended in compromise on 28‑4‑1984 and Rashid Ahmad agreed to give Mst. Shamshad Begum five acres of agricultural land situate in Village Jamani and a residential plot measuring 10 Marlas in lieu of her dower debt.

3. Mst. Shamshad Begum filed an execution application to get possession of the land and the residential plot given to her in lieu of dower. The petitioners, who are the minor sons of Rashid Ahmad and Mst. Shamshad Begum, filed an objection petition that this property had been donated to them by their father and it could not be given to Mst. Shamshad Begum in execution of the decree. The mutation of gift was entered on 9‑3‑1983 and was got attested on 20‑3‑1983 i. e. during the pendency of the suit for the recovery of dower pending between the parents of the petitioners.

4. The petitioners moved a petition for the amendment of the objection petition as they wanted to allege that the gift had been completed before 24‑2‑1983 which was disallowed by both the learned lower Courts.

5. It has been contended that a petition for the amendment of the objection petition was maintainable. Mr. Ghulam Fareed, Advocate, learned counsel for the petitioners, could not cite any provision of law or precedent in support of this contention. Both the learned lower Courts have stated in their, ‑judgments that there is no provision for the `amendment of the objection petition. Obviously; an objection petition is neither a plaint nor a written statement. It does not full within the definition of pleadings, as embodied in Order 6 Rule 1 A CPC. But it may be noted that section 141 CFC envisages that the procedure provided in this Code in regard to suits shall be followed, as far as .it can be made .applicable, in all proceedings in any Court of civil jurisdiction. In Muhammad Munshi v. Ghulam Habib and another. 1980 C L C 1965 it has been held that proceedings under _Order 21 Rule 58 CPC are original in nature. This principle can be extended to the proceedings under Order 21 Rule 62 CPC as well and, in this manner, an application for the amendment of the objection petition was competent.

6. On merits, it appears that Rashid Ahmad, who is the guardian of the minors, has invented advice to deprive Mst. Shamshad Begum of the property given to her in lieu of her dower. Obviously, the B transaction of gift is hit by the doctrine: of lis pendens and, in order to negate this doctrine, an amendment has been sought so as to pre‑date the transaction of gift. The learned lower Courts have rightly exercised their jurisdiction in favour of Mst. Shamshad Begum by declining to allow the proposed amendment. Since it was a C discretionary matter so I do not admit this Constitutional petition for hearing in the exercise of my extra‑ordinary jurisdiction and. dismiss this writ petition in limine. M . Y . H / S216/ L Petition dismissed.