1983 PLP 1083 (CLC)

M. Saeed Seghal v. Kazi Khurshid Hasan P L D 1964 S C 598 ref. (b) Civil Procedure Code (V of 1908)‑ ‑‑‑ S. 115, O. IV, r. 17 and Specific Relief Act (I of 1877),16. 42 Amendment of plaint‑Suit for declaration‑Plaintiff failing 'to take steps in time to get plaint amended‑Reason of delay alone, held, not sufficient to refuse amendment as delay in applying amendment could be compensated in terms of costs‑High Court modifying order of District Judge and allowing amendment subject to payment of cost of Rs. 1,000 and dismissing revision.‑[Plaint]. S. A. Jamali for Applicant. A. Matin for Respondent No.

1. Dates of hearing: 2nd and 3rd May, 1982. This revision is directed against the order of District Judge, Hyderabad, dated 19th October, 1972 allowing an application under Order VI, rule 17, C. P. C. filed by respondent 1 for amendment of the plaint in Suit No. 156/65 in Appeal No. 78 of 1971 pending before the District Judge. The learned counsel for the applicant firstly contended that the amend ment sought at the appellate stake could not tie allowed by the Court as by then the remedy by way of suit for possession had become barred by limitation. It is further contended that by allowing the amendment of the plaint, the nature of suit was altered which was beyond the scope of Order VI, rule 17, C. P. C. It is also contended that the amendment was sought at a very late stage and therefore it should have been refused on that account. Suit No. 156/65 as originally instituted by respondent 1 was for declaration and injunction. It was filed before the Civil Judge, Hyderabad, on 26th August, 1965 and written statement was filed on behalf of applicant on 18th November, 1965. In paragraph 11 of the written statement it was specifically stated that respondent 1 is out of possession of the suit land. No amend ment was sought in the plaint and the suit was ultimately dismissed by the Civil Judge, Hyderabad, by his judgment dated 26th February, 1971. The suit was dismissed among others on the ground that under section 42 of the Specific Relief Act the respondent 1 was not entitled to sue for a bare declaration without claiming the consequential relief of possession as he was out of possession of the suit property. The respondent 1 filed appeal No. 78/71 against the judgment of the Civil Judge, and during the pendency of appeal on 26th May, 1972 applied under Order VI, rule 17, C. P. C, for amendment of the plaint. This application was allowed by order dated 19th October, 1972. The period prescribed for filing a suit for possession in case of dispossession of the plaintiff from the suit property is 12 years from the date of dispossession under Article 142 of the Limitation Act and therefore it is not correct to say, that on the date namely 26th May, 1972 when respondent 1 applied for amendment of the plaint during the pendency of the appeal the suit for possession against the applicant had become barred by limitation. It has come in the evidence that respondent was dispossessed from the suit property in 1963. It is also not correct to say that by allowing the proposed amendment in the plaint the nature of the suit was altered. From pleadings of the parties it appears that there was dispute between the parties with regard to the possession of the disputed piece of land an evidence to that effect was also led by the parties before the trial Court. However, the trial Court came to the conclusion that the respondent 1 was out of possession and therefore he dismissed the suit amongst other on the ground that in such circumstances the plaintiff could not sue for declaration withdrawing consequential relief of possession. In these circumstances i cannot be said that by allowing addition of the relief for possession the nature of the suit was altered. In this connection reference may be mad to the case of Karamat Ali and another v. Muhammad Yunus Haft an others (PLD1963SQ191) where in similar circumstances amendment was allowed by the Supreme Court for addition of a prayer for possession in a suit for declara tion at the stage of hearing of the appeal before the Supreme Court. The learned counsel for the applicant has relied upon the case of M. Saeed Sehgal v. Kazi Khurshid Hasan (PLD1964SC598) to support his contention that the amendment allowed by the first appellate Court altered the nature of the suit. The facts of this case are quite distinguishable and amendment was refused by the Supreme Court on the ground that the appellant was allowed the opportunity to amend the plaint by the High Court which he failed to avail and the proposed amendment was also time barred. It is lastly con treaded by Mr. Anwar Jalil, that in any case the amendment sought respondent was highly belated and in spite of objection having been raise in the written statement, respondent 1 failed to take steps in time to get the plaint amended. This contention appears to be correct but for this reason alone the amendment could pot be refused as the delay in applying for amendment could be compensated in terms of costs. 1, therefore modify the order of District Judge Hyderabad, to the extent that the amendment lowed subject to payment of cost of Rs. 1,000 (Rupees one thousand) applicant. With these observations this revision is dismissed with no order as to costs. . M. Y. M, Revision dismissed.