P L D 1953 Baghdad﷓ul﷓Jadid 77 (PLP)

The plaintiff in this case sued for possession of a piece of land alleging that the defendant had encroached upon the land in ques tion in October, 1942. The defendant did not specifically deny the date of encroachment as given in the plaint, but later, at the stage of appeal, the defendant sought to amend his pleadings saying that the encroachment in fact had taken place before the institution of another suit of the plaintiff regarding encroachment and that the second suit was thus barred by O. 11, R.

2. The amendment was not allowed though mere delay was no ground for refusing an amendment. Mustafa Khan for Appellants. Inayat Ali for Respondent. ABDUL HAMID, J.‑‑This is an appeal from a decision of the District Judge, Bahawalpur dated 24th February, 1952 which affirmed a judgment and decree of the Senior Sub‑Judge, Bahawal pur dated the 26th April 1949. The plaintiff‑respondent, Abdur Rahim, instituted a suit against Allah Wasaya for the possession of a site marked BB',KK' (plan Ext. P L) alleging that the defendant‑respondents had made forcible encroachment on it in October 1942. It was further alleged in the plaint that prior to the institution of the present suit the plaintiff‑respondents had brought another suit against the defendants with regard to an encroachment of land marked as BD', B' D' in map Ext. PL. The latter encroachment had taken place in the year 1938. The defendant appellants in their written statement did not specifically deny the alleged date of encroachment (Oct. '42). They however pleaded that the site in dispute (KK',BB') had fallen to their share by virtue of the partition and that the plaintiff respondents had no right appertaining to the land in question. They also pleaded that the suit was barred by res judicata. During the pendency of the appeal before the learned District Judge, Bahawalpur the counsel for the defendants gave an application under Order VI, Rule 7 to the effect that they should be allowed to amend their pleadings. It was urged that it was wrongly stated in the plaint that the alleged encroachment had taken place in the beginning of October 1942 and that the defendants really had taken possession of the site in question before the institution of the first suit referred to above. It was further alleged that the plaintiff was barred by virtue of Order II, Rule 2. to bring this second suit regarding a cause of action which had already arisen before the institution of the first suit. The learned District Judge however did not agree with the contention of the learned counsel and did not allow the amendment prayed for. The learned counsel for the appellant, Mr. Mustafa Khan has now contended before me that the plaintiff was wrong in stating in the plaint that the dispossession of the site had taken place in October 1942 and that really it had taken place before the institution of the first suit. He, however, frankly admitted that the defendant‑appellant did not specifically deny the allegation of the plaintiff qua the date of dispossession in their written statements. It therefore follows that whereas it was specifically alleged in para. 7 of the plaint that the encroachment on the disputed site bad taken place in Oc tober 1942, this allegation was not specifically denied by the defend ant‑appellants. It is further conceded by the learned counsel for the appellants that it was the bounden duty of his clients to have pleaded in the written statements that the second suit was barred by virtue of Order II, Rule

2. That being so, the defendants never pleaded that the plaintiff had omitted to sue in respect of the portion (BB',KK') and that he was not afterwards entitled to sue in respect of the portion so omitted from the frame of the first suit. I find that the plaintiff specifically stated in the plaint that the defendant had made an encroachment on the site in question in the month of October 1942 and this fact having not been denied would be presumed to have been admitted by the defendants. It would therefore be against the interests of justice to allow the defendants to amend the pleadings which will introduce an entirely different, new and inconsistent case. I admit that mere delay is no ground g for refusing an amendment but when the amendment is being proposed with the object of making out a new and inconsistent, case, it cannot be allowed. Reference in this connection may be made to 1933 Lab. 676, where it was observed that "An amendment of plaint at the time of hearing of an appeal should not be allowed specially when such amendment gives rise to a de novo trial of many fresh and intricate questions." Again reference may be made to 1943 Lab. 159, when the following observations were made :‑ "While under the terms of Order VI, Rule 17 leave to amend will be usually granted for the purpose of determining the real questions in controversy between the parties and a delay by a party is not a sufficient ground for refusing permission to amend even at a late stage of a trial, yet he cannot be permitted to do so if the proposed amendment happens to introduce a totally inconsistent case and the application for leave to amend made after a great deal of delay." I find that all the two above cited rulings are on all fours with the circumstance of the present suit. The proposed amend ment does entail the introduction of a totally new and inconsistent case. Under the circumstances, in my opinion, the contention of the learned counsel for the appellants is not well founded: The plaint clearly stated a definite date on which the alleged dispos session took place and the defendant failed to traverse the said allegation. They, therefore, cannot be allowed to amend their pleadings. No other point was urged by the appellant's counsel. This appeal fails and is hereby dismissed with costs throughout. A. H. Appeal dismissed.