1996 PLP 1111 (MLD)

"Now we have to see whether this new plea is complimentary or contradictory to the defence originally set up. If it is complimentary, there is no difficulty. Even if it is additional or what may be called an alternative plea still it would be permissible. But if it is contradictory to the original defence, then it cannot be permitted. In other words the two defences should not be mutually destructive. They must and ought to be harmonious. Mutually destructive pleas could not be permitted to stand side by side even if they were drafted in the original pleadings and should not be permitted to be incorporated at a subsequent stage as In this view of the matter, the short question for determination is whether plea of being a "co‑beneficiary of the property as per declaration and gift‑deed" is destructive to the plea of adverse possession now ought to be raised through the proposed amendment. In my view the two pleas are merely the two sides of the same weapon of defence, the defendant wants to use to ward off the attack. He claims an independent right for himself as a co‑beneficiary under the gift‑deed. But now he says that if he does not succeed in establishing this right he would still protect his possession on the basis of occupancy for a period of over 12 years, when the right to eject him stands extinguished by lapse of time. This may be a totally bogus and misconceived plea and may collapse at once. But that is not the criterion to dispose of a prayer for raising this plea. We cannot scrutinise the application for amendment on the chance of success or failure of the plea raised, but have to see whether such a plea was or is available to the defendant at all. The main consideration of this stage is whether the two pleas could be taken by the defendant when he filed the written‑statement. Originally he set up a case that in his reading of the gift‑deed he is a co- beneficiary. He is not abandoning this plea even now. What he is saying is that if he does not succeed in establishing a right in the land, he still can protect his possession by a comparatively weaker right i.e. right over the land. In the alternative or may I say in this additional plea, he says that he can still resist an attack to throw him out by pleading adverse possession. The former is an inherent right and the latter is a right created by statute. Strictly speaking he is not adding any new fact which could be called inconsistent to the theory of gift in possession by virtue of the gift‑deed and says that this right has further been reinforced by his possession for a period over 12 years."

4. On the general question of technicalities it was eminently observed in Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382: ‑‑ "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects Any system which by giving effect to the form and not to the substance defeats substantive right is defective to that extent, The idea must always be a system that gives to every person what is his."

5. The following observation was made for the first time in Ma Shwe Mya v. Maugn Mo Hnaung AIR 1922 Privy Council 249 and was referred to in the many judgments will be of immense help to settle the controversy:‑‑ "All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised; but nontheless no power has been given to entertain the cause of action to be substituted by adverse cause nor to change, by amendment the success of the suit."

6. The learned first Appellate Court dealt the matter as if the judgment of the trial Court had attained finality. It is also pertinent to note that the petitioner had elected not to produce any additional evidence if the application under Order 6, Rule 17, C.P.C. was accepted. It has not been denied by the respondents that the petitioners were the legal heirs of Mst. Rajee.

7. It was the legal right of the petitioner to seek the proposed amendment after the death of his father Pir Shah. If this application is rejected the petitioner subsequently will not be entitled to invoke this ground in view of the provisions contained in Order 2, Rule 2, C.P.C. which provided that "Every suit shallinclude the whole of the claim which the plaintiff is entitled to make in respect of cause of action". In Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 Supreme Court

345. This aspect of the matter was discussed at length in the following manner: ‑‑ "A short comment on observations made in some of the aforenoticed judgments regarding the effect of provisions of Order 11, Rule 2, C.P.C. in so far as the refusal to allow proper amendments is concerned, will not be out of place. Often an application for amendment is opposed on the ground that it would introduce a new element in the case as distinguished from a new cause of action or a new case altogether. Of course, in so far as the new cause of action and a new suit is concerned that cannot be permitted to be introduced in the garb of amendment; but regarding the introduction of a new or different element which by itself does not constitute a different cause of action or a new suit it would be in accord with the provisions contained in Order II, rule 2 C.P.C. It provides that "every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action"; further that where the plaintiff omits to sue in respect of; or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Similarly, it provides that person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except, with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. If a genuine amendment which is permissible and should otherwise be liberally allowed in view of the principles highlighted in the foregoing discussion with reference to the case‑law, is denied the provisions contained in Order 11, rule 2 would create enormous difficulties for the applicant. It was in this context that this Court made the following observation in the case of National Shipping Corporation v. Messrs A.R. Muhammad Siddik and another. The application for amendment was opposed by the petitioner on the ground that it introduced an entirely new cause of action which virtually altered the nature of the suit. The learned Single Judge overruled the objection for, in his view, the proposed amendment neither altered the nature of the suit, nor raised any new cause of action. Learned counsel for the petitioner repeated the argument which was repelled by the learned Single Judge by impugned order. It is difficult to see how the nature of the suit will be altered by the new plea. It cannot be gainsaid that unless respondent No.l is allowed to raise this plea his subsequent suit on the new plea would be barred under Order II, Rule 2, C.P.C.

8. Had the learned Judge closely examined the principles laid down in Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 Supreme Court 345 which he referred in the impugned order, he would not have rejected the application filed by the petitioner to amend the plaint. In the light of the foregoing discussion, this revision is allowed and the impugned order is set aside and the application filed under Order VI. Rule 17, C.P.C. is accepted. The case is remanded to the trial Court with a direction that the respondents shall be given an opportunity if they so desire to amend their written statement. A.A./N‑4/P Revision accepted.