2013 PLP 1125 (CLC)

ABDUS SATTAR ASGHAR, J.

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 to impugn the order dated 16-1-2013 passed by learned District Judge Jhang whereby their revision petition against the order dated 3-10-2012 passed by learned Civil Judge Jhang was dismissed.

2. Brief facts leading to this constitutional petition are that Rustam respondent No.3 filed a suit for specific performance of an agreement to sell dated 13-4-2005 against the petitioners' father namely Gul Muhammad (since died), Shahadat respondent No.2 and Zarai Taraqiati Bank Ltd. respondent No.4 alleging that he purchased the suit-land in consideration of Rs.30,00,000/- out of which advance money Rs.25,00,000/- was paid to Gul Muhammad and remaining Rs.5,00,000/- has to be paid at the time of registration of sale-deed. The suit was resisted by Gul Muhammad by filing written statement denying impugned agreement to sell as well as receipt of earnest money and further contended that in fact he has sold out the suit-land with delivery of possession in favour of Shahadat respondent No.2 vide agreement to sell dated 11-12-2006 and that Rustam respondent No.3 has manipulated the impugned agreement to sell dated 13-4-2005 and receipt through cheating and fraud. During the pendency of suit said Gul Muhammad died consequently petitioners were impleaded as his legal representatives. Petitioners while filing written statement to the amended plaint took a different stance admitting the claim of Rustam respondent No.3/plaintiff and consented to decree his suit against them as per terms of the impugned agreement to sell.

3. Feeling aggrieved Shahadat respondent No.2 lodged an application before the learned trial Court with the prayer to ignore unauthorized amendments in the written statement lodged by the petitioners on 6-10-2009. The learned trial Court vide order dated 2-2-2012 allowed the said application lodged by Shahadat respondent No.2 with the observation that petitioners being legal heirs of Gul Muhammad had no right to change or alter the contentions raised in the original written statement without permission of the Court and unauthorized amended written statement was ordered to be ignored.

4. Consequently petitioners lodged another application before the learned trial Court seeking permission to amend the written statement contending that written statement lodged by their deceased father was collusive with Shahadat respondent No.2 and that they intend to make amendment in the written statement in this regard. The application was resisted by Shahadat respondent No.2. The learned trial Court dismissed the petitioners' application vide order dated 3-10-2012 with the observation that petitioners being legal representatives of Gul Muhammad deceased cannot be allowed to get rid of the admission made by their father in his earlier written statement. Being dissatisfied petitioners assailed the order dated 3-10-2012 passed by learned Civil Judge before the learned District Judge, Jhang through revision petition which was also dismissed through impugned order dated 16-1-2013.

5. It is argued by learned counsel for the petitioners that the impugned order passed by learned revisional Court is against law and facts; that provisions of Order VI, Rule 17 of Code of Civil Procedure 1908 for amendment in the pleadings are to be construed liberally to meet the ends of justice; that the learned revisional Court has passed the impugned order on wrong premises of law and facts and suffering from jurisdictional error is liable to set aside. He added that petitioners have no other remedy except to invoke the constitutional jurisdiction of this Court, therefore, this writ petition is maintainable.

6. Arguments heard. Record perused.

7. The questions involved in this writ petition are as under:

(i) As to whether a party can be allowed to amend the pleadings to get rid of an admission already made therein; (ii) As to whether a writ petition against the order of the revisional court is competent.

8. It is evident on the record that Gul Muhammad father of the petitioners while filing the written statement categorically denied the execution of impugned agreement to sell dated 13-4-2005 and receipt in favour of Rustam respondent No.3 and admitted the agreement to sell dated 11-12-2006 in favour of Shahadat respondent No.2. It is pertinent to mention that Shahadat respondent No.2 has also filed a suit for specific performance which has been consolidated with the suit lodged by Rustam respondent No.3. A valuable right has been accrued in favour of Shahadat respondent No.2 on the basis of written statement lodged by the petitioners' father. Petitioners being legal representatives cannot be permitted to get rid of the admission already made by their father in his written statement in favour of respondent No.2. There is no cavil to the proposition that provisions of Order VI, Rule 17 of Code of Civil Procedure 1908 are to be construed liberally however petitioners cannot be allowed to abuse the law of procedure to favour Rustam respondent No.3 by resiling from the admission made by their deceased father in earlier written statement or to put up a new and inconsistent defence. Admission made by a party in the pleadings cannot be revoked without permission of the Court. In the instant case since on the basis of earlier admission a valuable right has been accrued in favour of Shahadat respondent No.2 therefore proposed amendment based on ulterior motive cannot be allowed. Reliance is made upon Secretary to Government (West Pakistan), Now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 SC 242).

9. For all above learned Courts below have rightly observed that in the absence of bona fides it was not a fit case to allow the proposed amendment. Concurrent findings of the learned Courts below are based on cogent reasons and do not call for any interference. I do not see any jurisdictional error, legal or factual infirmity in the impugned order passed by learned Revisional Court.

10. As regards question of maintainability of this constitutional petition guidance is sought from the dictum laid down by the Hon'ble apex Court in the case of Muhammad Khan and 6 others v. Ghulam Fatima and 12 others (1991 SCMR 970). In the cited case petitioner's application for amendment was disallowed by the learned trial Court and their revision petition against the said order was dismissed by the learned District Judge which was assailed in a constitutional petition before this Court. The writ petition was dismissed by this Court and leave to appeal against the order of this Court was also declined by the Hon'ble Supreme Court of Pakistan. In the light of above dictum this constitutional petition against the impugned revisional order passed by learned District Judge is not maintainable. 11 For the above reasons, this constitutional petition having no merit and being not maintainable is dismissed in limine. KMZ/G-18/L Petition dismissed.