P L D 1991 Peshawar 117 (PLP)

FAZAL ILAHI KHAN, J.‑‑‑This is the defendants' revision petition against the order of Senior Civil Judge, Dir at Timergara dated 8‑3‑1990, whereby their application for amendment of written statement was rejected.

2. Admittedly the plaintiff/respondent, a registered Government Contractor, entered into a contract with the defendants for construction of a road at a cost of Rs.16,98,

484. According to the plaintiff he carried out the work upto 30th of April, 1985 and was paid a sum of Rs.4,76,000 whereafler the contract was rescinded. That in spite of the plaintiff's several representations made to the authorities that work already carried out be measured and that he shall be paid Rs.11,28,158, the amount which he had spent on the constructed portion of the road, but there being no response hence the present suit. It may be pointed out that finding some defect in the plaint, on his application, the plaint was amended with permission of the Court.

3. Defendants 2 and 3 namely, Manager Forest Development Corporation Malakand Division at Saidu Sharif Swat and Divisional Forest Officer, Forest Development Corporation Dir at Timergara, respectively filed their joint written statement in which the plaintiff's claim was denied and the suit was resisted in general terms on legal and factual pleas. After framing the issues the case was adjourned twice for filing of documents and list of witnesses. Plaintiff did rile the same but the defendants failed to do so, therefore, they were given a last chance to file it. However, on the date fixed the defendants made an application for amendment of their written statement on the grounds that by inadvertence the details of the amounts to which the defendants are entitled for having completed the remaining work at the cost and risk of the plaintiff on his failure to complete it in terms of the contract, and to claim set‑off, the plaintiff .objected to the amendment on the ground that the application was mala fide and was moved only to avoid filing of the list on the date for which they had been given last opportunity. The learned Senior Civil Judge, after hearing the learned counsel for the parties rejected the application, making an observation that defendants are not debarred from leading evidence regarding the amount spent on completion of the road which the contractor had left incomplete.

4. We have heard the learned counsel for the parties and perused the record. The learned Senior Civil Judge did not allow amendment of the written statement on the ground that the needful could be done, without amendment of the plaint. The perusal of the written statement filed by the defendants 2 and 3 would, however, show that there is no specific plea raised therein that the remaining part of the road was constructed at the cost and risk of the contractor. Neither the detail of the amount spent is given nor any claim for set off has been made specifically. These pleas having not been raised in the pleadings have not been reflected into issues framed by the Court on which the parties have to lead their evidence. In order to appreciate the arguments of the learned counsel for the parties it would be advantageous to reproduce the relevant part of the order which reads as follows:‑ "Now defendants Nos.2 to 3 have submitted the instant application seeking proposed amendment in the written statement. The paras Nos.3‑4 of the written statement already submitted by the defendants Nos.2‑3 would reveal that they have mentioned in it that plaintiff has worked up to April, 1985 which was measured by Civil Engineer of Forest Development Corporation and payment was made to him according to the terms of agreement. So far as the question of amount incurred by defendants Nos.2‑3 on the construction of the incomplete road left by plaintiff is concerned they would be at liberty to produce their evidence in this respect and there is no need to mention this fact specifically in the written statement. Therefore, I am of the opinion that the proposed amendment in the written statement is not necessary and as such the application in hand has got no merits and stands rejected. From the perusal of the operative part of the order reproduced in extenso above, it is clear that the learned trial Judge lost sight of the relevant provisions of the C.P.C. dealing with pleadings, issues and recording of evidence in a civil matter. Order 6, rule 2 providers that "Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided g into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures." Similarly Order 14, Rule 1, sub‑rules (1), (2) and (3) provides that "Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence, and each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue." After consolidation of pleadings of the parties and framing of issues evidence is to be led by the parties for which provision is made under Order 18 rule 2, C.P.C. which provides that "On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove." The above provisions of law have been referred to for the reason to show that the learned trial Judge erred in holding, while rejecting the application for amendment, that no amendment is necessary as the defendants can lead their evidence in support of their pleas. The perusal of the written statement filed by the defendants would show that no specific amount is mentioned which they have spent in the construction of the incomplete road and furthermore, no claim has been made for its recovery as having spent it at the cost and risk of the contractor in terms of the contract. Furthermore, there is nothing in the written statement claiming the amount by way of set‑off. Such being the case when the aforementioned facts are not specifically alleged and the amount not claimed as set‑off and furthermore when no issue is framed with respect thereto even if evidence is recorded the same cannot be looked into. In Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co‑operative Bank Ltd., Jaranwala (1968 S C M R Page 804) relying on Hem Chand v. Pearey Lai and others AIR 1942 PC 64 and Kanda v. Waghu AIR 1950 PC 68 it was laid down that" no evidence shall be allowed to be adduced on facts which had not been raised in the pleadings or incorporated in the issues framed." This was also the view expressed by their Lordships in Government of West Pakistan (now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC Page 469 that in a case in which plea of fact is not pleaded no case can be founded on it.

5. Order 6, rule 17 which provides for amendment of pleadings is the beneficial provision and is meant to remove ambiguity to prove and bring to surface with clarity the specific dispute for proper adjudication. Though it is discretionary with the Court to allow or disallow amendment prayed for by a party but such discretion must be exercised on sound principle. The order even if found discretionary if proceeds on wrong premises and is based on misapplication of law is open to correction in exercise of revisional jurisdiction. For the reasons stated above, and for additional reason that so far no evidence has been recorded this revision petition is accepted, the order of the learned Senior Civil Judge dated 8‑3‑1990 is set aside and the defendant‑petitioners' application for amendment of their written statement is allowed as prayed for. The defendants are, however, to pay a sum of Rs.500 as cost to the plaintiff. Parties are left to bear their own costs. A.A./1203/P Revision petition accepted.