1990 CLC 1514 (PLP)

Syed Munir Hussain for Petitioner. Rana Abdullah Khalid for Respondent. Date of hearing: 6th June, 1989. This civil revision calls in question an order dated 19‑11‑1986 of the learned Civil Judge Ist Class, Sargodha whereby he dismissed an application brought by the petitioner‑defendant for amendment of his written statement and additional evidence. 2 It is a suit for specific performance of two agreements respectively dated 14‑5‑7982 and 20‑5‑1982, whereby the respondent‑plaintiff allegedly agreed to convey four plots in addition to cash payment of Rs.2,40,0(0 to the petitioner defendant who in turn was to transfer to him 12‑1/2 acre, of agricultural land. The respondent claimed that he had already paid a sum of Rs. 1,42,000 to the petitioner, that he was willing to pay him the remaining amount as also to transfer in his favour the four plots, and prayed that the petitioner‑defendant be compelled to perform his part of the contract.

3. The suit was resisted by the petitioner claiming that there was a subsequent innovation in the contract whereby the area of 12‑1/2 acres was reduced to 6 acres. He took up other pleas as well but notably did not contradict receipt of the cash amount of Rs.1,42,000 under the foot of the original agreements

4. The trial was in progress when the petitioner made an application for resummoning Muhammad Sarwar, P.W. 2 as his own witness although he had already cross‑examination him. The trial Court refused the prayer and the same was affirmed by my learned brother Muhammad Ilyas, J in his detailed order dated the Ist of December, 1984, in Revision No.471 of 1984. The petitioner then made the present application for amendment of the written statement so as to take up a ground Char Plot No.8 forming subject‑matter of the transaction was not owned by the respondent plaintiff and that legally he could not agree to convey it to him. He wanted to add yet another plea, namely, that transfer of agricultural land on his own part was hit by Martial Law Regulation No.115 and that for this reason too the whole agreement was void.

5. The respondent contested the application urging that it was a device for getting the same relief of additional evidence and also for resummoning the same witness about whom the petitioner had failed upto the High Court.

6. The trial Court in its brief order, challenged in the present revision petition accepted the contention of the respondent. It noted that the application was quite belated, was a device to bring in additional evidence which had already been declined upto the High Court and that there was no explanation as to why these pleas were not earlier taken. It was contended that since the objection related to a question of fact, time to introduce it had already been lost. Consequently the application was dismissed.

7. Syed Munir Hussain Shah, Advocate, for the petitioner submitted that the amendment in relation to the title of the plot had nothing much to do with resummoning P.W.2 and that the Court had misdirected itself in the context. According to him, all that he would have produced was a copy of the allotment order from the Housing Department and that no further witness was needed. Secondly, he argued that the age of the case was no consideration to refuse amendment; rather it was the stage of the proceedings which should have been kept in mind and that in this case the petitioner had examined only one witness, leaving ample opportunity for the respondent to produce rebuttal; thirdly, he pointed out that an amendment even in regard to a matter of fact could be allowed at any stage and that the view adopted by the Court below was misconceived. Reference was made to Order VI rule 17, C.P.C. urging that it was divided into two parts; in the first one, the Court was empowered to allow amendment at any stage, but in the second part where amendment was necessary to determine the real point of dispute, the Court had to allow it obligatorily. He stressed that in this case the real point in issue was whether the contract was enforceable at law for want of title to plot No.8 in favour of the respondent plaintiff and likewise whether the petitioner could transfer his agricultural land in violation of Martial Law Regulation No.115. He emphasized that both these points were quite essential for determination of the real dispute and that the amendment should have been allowed as a matter of course. He relied upon Mst. Ghulam Bibi and others v. Sarsa Khan and others (P L D 1985 SC 345) where Order VI rule 17, C.P.C. was held to consist of two parts, one of them being peremptory in nature requiring the Court to allow all amendments which were essential to determine the real point of controversy. Likewise, he relied upon Bahadur Shah and 2 others v. Sharaf and 9 others (P L D 1973 Lahore 513) and Jindu Khan v. Faraza and 2 others (1985 C L C 634) which according to him propounded the same rule.

8. On the other hand, counsel for the respondent canvassed that amendment was merely a discretionary matter and that the discretion exercise by the lower Courts could not be interfered with in revision petition. He cited M Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (P L D 19E SC 698) to‑support this view.

9. There is no cavil with the proposition that an amendment may allowed at any stage, in spite of long delay, and even in regard to questions facts. The observation of the Court below in this behalf may not be much appropriate, but there are other compelling reasons to uphold its order. The suit arises out of an agreement to sell. The contention that the respondent had no tit to a part of the property to pass on in favour of the petitioner, was not by itself something essential at the present juncture. His version at the bar was that he already obtained a sort of irrevocable power of attorney from the owner of plot in favour of the petitioner himself and that the same sufficed for all practic purposes to assure its transfer in his favour. Ordinarily such an arrangement, any, suggested that the petitioner had the knowledge of the drawback in the tit of the respondent to the concerned plot. Secondly, it may better be left to the respondent to make an effort to get the plot transferred from its true owner favour of the petitioner. The decree to be passed ultimately will make provision that the respondent will get the agricultural land of the petitioner only if he able on his own part to transfer the four plots in favour of the petition Evidently, if he could not perform his own part of the contract, the decree would be rendered nugatory leaving no room for the petitioner to entertain a misapprehension. He will be safe. Making any acrimony at this stage after having taken long time during pendency and having come to the High Court in an earlier round apparently suggested that he was taking chances. He should have be careful on the principle of caveat emptor to see if the respondent had no title the plots to convey them in his favour. Apparently, the petitioner took the matt easy, executed various documents; effected innovations in them off and c received a huge amount of Rs.1,42,000 which he did not specifically contradict his written statement and of late thought of amending his pleadings on the pretc that it was essential for determination of the real point in dispute. As alrea remarked, the responsibility lies on the respondent to first perform his own p; of the contract and if he fails to do so, even after passing the decree, the whom matter will be flopped.

10. The provisions of Order XXI rule 32 (5), C.P.C. are quite pre‑emptory the context of enforcing a decree for specific performance of a contract. T Court may "direct that the act required to be done may be done so far practicable by the decree‑holder. This phrase evidently shifts the obligation upon the decree‑holder to do all things necessary for completion of transaction, specific performance whereof may have been decreed. The corollary manifestly would be that in case the decree holder was not able to out his own obligation arising out of the contract, the decree will be specifically enforced against the opposite party. That may be the opportune time for the petitioner to insist that the respondent may first transfer complete title of the four plots to him and then be given the petitioner's agricultural land.

11. Mistake as to a matter of fact entertained by one of the parties would not make the contract voidable. Section 22 of the Contract Act so provides. The petitioner if at all, harboured a mistake as to the respondent's title to one of the four plots, it should not make the contract voidable and hence the objection raised in the application for amendment was not essential for determination of the real question in dispute. The case of Bahadur Shah and Jindu Khan could, B therefore, be distinguished in application to the present case. Similarly the plea that the contract suffered from a mistake as to law namely, the Land Reforms Regulation 115 was equally not enuring in favour of the petitioner. Section 21 of the Contract Act does not make the contract voidable; what would make such a contract void, would be a mistake as to a matter of fact entertained by both the parties vide Section 20 of the Contract Act. It is not the petitioner's case that both the parties entertained mistake as to a fact so as to render the entire contract void. Any amendment based upon a mistake entertained one‑sidedly by the petitioner was not in law acceptable. Last but not the least is the rule propounded in Mr. Muhammad Jamil Asghar's case wherein discretion exercised by the lower Court in the context of refusing amendments of the pleadings was held not open to interference through Revision. One could, therefore, say that it was much about nothing. As a result, the revision petition is dismissed with costs. H.B.T./M‑1839/L. Revision petition dismissed.