P L D 2026 Balochistan 78 (PLP)

IQBAL AHMED KASI, J.

The instant Constitutional Petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ( the Constitution ), carries the following prayer clause: It is, therefore, respectfully prayed that keeping in view the above submissions the impugned order dated 15.09.2021 passed by respondent No.2 may kindly be set aside by means of upholding order dated 11.03.2021 passed by civil judge-Kuchlak with regard to allowance of amendment in plaint, in the interest of justice, equity and fairplay

2. Brief facts of the instant constitution petition are that petitioners filed a civil suit for declaration, cancellation, consequential relief and permanent injunction against the predecessor of respondents Nos. 1-A to 1-H and respondent No.3 with effect that petitioners are co-sharers with the predecessor in interest of respondents Nos. 1-A to 1-H of shamilat land bearing Khasra Nos. 323, 324,319, 321 and 341, situated at Mohal Kona Nasar, Mouza Kuchlak, measuring 18 acres with the ration of 1/3 shares ( the land in question ) such property was given to the predecessor of petitioners and the predecessor of respondents Nos. 1-A to 1-H by other co-sharers with mutual and private settlement in order to set aside their respective shares. The land in question is comprising of two portions, one portion is located at the upper side of the main Attozai Road, which pertains to almost 4 acres bearing Khasra Nos. 319, 341, 321 and 339, whereas, the second portion is below Attozai Road, pertaining to almost 14 acres, containing Khasra Nos. 323, 324 and

325. The petitioners/plaintiffs further averred that few years back, one dispute arose between the predecessor in interest of petitioners and respondents Nos. 1-A to 1-H on selling of 12 acres, out of total 18 acres by predecessor of respondents Nos. 1-A to 1-H to respondent No.3, consequently arbitrators Haji Majeed and Gul Muhammad were appointed to resolve the controversy between the parties, who settled down the sharer of the petitioners by means of monetary benefit Rs.26,00,000/- (Rupees Twenty Six Lac) to the extent of their shares, out of 12 acres vide agreement dated 18.10.2011, however, six months back to institution of instant suit, it was revealed upon petitioners that predecessor respondents Nos. 1-A to 1-H sold out the entire property to respondent No.3 vide agreement dated 14.05.2011, which was subsequently novated through a new agreement dated 12.06.2012 without consent and knowledge of petitioners, the petitioners learned about such agreement, when respondent No.3 made an attempt to take possession of the suit property. Thereafter, petitioners approached private respondents about infringement of their valuable rights on account of agreement dated 12.06.2012 resultantly, petitioners sought cancellation of the agreement dated 12.06.2012 being void and ineffective upon the rights of petitioners.

3. During the pendency of the suit, it was disclosed to petitioners vide agreement dated 12.06.2012 that the price of the property was fixed at Rs.31 per sq.ft., whereas, petitioners were paid through arbitrators with the rate of Rs.22 per sq. ft. to the extent of 12 acres. Pursuant to such disclosure petitioners filed an application before the trial Court for amendment in plaint with effect to add substitute relief by means of monetary benefit with regard to sold property through agreement dated 12.06.2012, which was allowed by the Civil Judge, Kuchlak ( the trial Court ) as substitute relief vide order dated 11.03.2021, but subsequently set aside by the Additional District Judge, Kuchlak ( the appellate Court ) (respondent No.2) vide order dated 15.09.2021 ( the impugned order ) on account of allowing revision petition filed by respondents Nos. 1-A to 1-H, hence this petition.

4. Learned counsel for petitioners inter alia contended that the impugned order dated 15.09.2021 is contrary to fact, law and principles of natural justice; that the revisional Court misconstrued provision of Order VI, Rule 17 read with Section 153, C.P.C.; that substitute relief by means of monetary benefit was sought as conditional relief, which would be granted if agreement dated 12.06.2012 would not be declared void and illegal; that proposed amendment will neither change the nature of the suit nor complexion of the suit.

5. Learned counsel for private respondents opposed the contention of learned counsel for petitioners on the ground that the claim of petitioners was straightaway denied by way of filing their written statemnts, but the petitioners failed to file any replication to the written statement filed by private respondents; that on one hand, the petitioners sought cancellation of agreement dated 12.06.2012, on the other hand, through proposed amendment sought substitute monetary relief, which is against the law; that the proposed amendments would change the nature of suit and compilation of the suit; that the proposed amendments are beyond the scope of Order VI, Rule 17, C.P.C.

6. We have heard learned counsel for the parties and perused the available record with their able assistance. As far as the contention of learned counsel for the petitioners with regard to proposed amendment is concerned, a contradictory plea is being introduced, which could change the entire complexion of the case, we are of the view that the substitute relief by means of monetary benefit was sought as conditional relief, which would be granted if agreement dated 12.06.2012 would not be declared void and illegal. By taking such a plea it cannot be said that the petitioners also had knowledge of execution of the agreement. Therefore, we do not consider it to be a case of contradictory or mutually destructive pleas, which is being introduced through the proposed amendment. At best, it could be a plea in the alternative that can legitimately be taken in the circumstances of the case. When a plea in the alternative can naturally arise and can co-exist with the main plea, which was not taken in the plaint at the time of filing of the suit, then such a plea can be introduced by seeking amendment in the pleadings. To hold this view, we are fortified by the judgment of the Hon ble Supreme Court of Pakistan in the case of Nazir Hussain Rizvi v. Zahoor Ahmad PLD 2005 SC 787, wherein it was held as under:-

6. There is no cavil with the proposition that the proposed amendment can neither change the complexion of the suit nor introduce a new cause of action. No amendment will be allowed where its effect would be to convert the character of the suit. (Shahswar v. Najmaul Hassan 1981 SCMR 730, Khudeja v. Jehangir Khan 1971 SCMR 395, Atlantic Steamer s Supply Co. v. m.v. Titisee PLD 1993 SC 88 and more so the fundamental character of the suit including the subject-matter and case of action cannot be allowed to be substituted. (Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345, Ghulab v. Fazal Illahi PLD 1955 Lah. 26). It is, however, to be kept in view that subject to certain exceptions even alternative and inconsistent pleas may be allowed to be raised by way of amendment. (Ghulam Ali v. Pakistan PLD 1960 Kar. 581, Alauddin v. Central Exchange Bank Limited (PLD 1960 Lah. 446) or a new ground of claim can be introduced because merely introduction of fresh matter cannot alter the nature of the suit and leave ought not be refused in such cases. (Muhammad Essa v. Hasseena Begum 1989 SCMR 476). A line of distinction is to be drawn between an alternative case and an inconsistent case which are neither synonymous nor interchangeable. A similar proposition was examined in case Budho v. Ghulam (PLD 1963 SC 553) wherein it, was held that no two facts can be said to be inconsistent if both could have happened and the test of inconsistency is that a plaint which contains both cannot be verified as true but a party can put forward more than one source of his right or defence in which case he is pleading in the alternative. The judicial consensus seems to be that an alternative or inconsistent plea can be raised but contradictory and mutually destructive pleas cannot be taken.

7. It was further held in the case titled as Haji Sultan Abdul Majeed (Decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (Decd) through Mah Jabeen and others 2018 SCMR 82.

8. Allowing or refusing to allow amendment of pleadings is an act, which hits the very root of attack for the defence of a party, as the case may be the parties cannot lead evidence beyond their pleadings and hence, it effects the production of evidence as well. Ultimately, the case of a party refusing amendment in genuine cases is most likely to be seriously jeopardized, thus, the question of amendment in hand was not such an interlocutory entirely, which could subsequently, be rectified at the time of the final decision of the case, while allowing the revision the learned revisional Court has fallen into material irregularity.

9. Another important crucial legal point in the instant petition is that the petitioners filed an application seeking amendment in the suit, which was allowed by the trial Court and the respondents assailed that order in civil revision petition before the revisional Court, whereby the learned revisional Court had allowed the revision by setting aside the order of trial Court, is wholly misconceived because by the said order passed by the trial Court, it would not fall under the category of case decided . In this respect, we are supported by the following two cases decided by the Hon ble Supreme Court of Pakistan as under:- (1) 1969 SCMR 965: Present: Hamoodur Rehman and Muhammad Yaqub Ali, JJ. Nawabzada Malik Habibullah Khan v. The Pak Cement Industries Limited and others Civil Procedure Code (V of 1908), S.115 & O.XIII, R.2

Party permitted by Court to place on record certain documents after framing of issues

Such order admitting or declining to admit evidence oral or documentary not case decided so as to attract provisions of S.115. (2) 1971 SCMR 507: Present: Muhammad Yaqub Ali, M.R. Khan and Waheeduddin Ahmed, JJ. Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd., Bhalwal Civil Procedure Code( V of 1908), S.115 & O.VI, R.17

Words case which has been decided

Order allowing amendment of plaint

Not a case decided

High Court not competent to entertain revision application against such order. The dictum laid down by the Hon ble Supreme Court of Pakistan loudly suggests that the order passed by the trial Court does not fall under the category of case decided, thus, in such a situation, the revision petition is not competent. Thus, view of the above facts and circumstances, the instant petition is allowed. The impugned order dated 15.09.2021 passed by the Additional District Judge, Kuchlak is set aside and the order dated 11.03.2021 passed by the Civil Judge-Kuchlak is upheld. UN/19/Bal. Petition allowed.