1986 PLP 123 (MLD)

Manzoorul Haq for Respondent No.1. This is a revision against an order of the learned District Judge (South), Karachi allowing an amendment to the plaint filed in this case seeking declaration that the elections to the Office of the President of the Income‑Tax Employees Association were illegally held and the results of the poll were also not binding. A consequential relief for recounting of the votes was also prayed for. Alongwith the plaint an application under Order XXXIX, Rules 1 and 2, C.P. C. was also filed. The prayer contained in that application was "to stay the oath taking of office‑bearers who have been (illegally) "declared successful' in the recent elections held on the 1st of August, 1985, to be held in a ceremony on the 22nd of August, 1985, or on any other date till the disposal of the suit." The plaint in the suit and the application were filed on 19‑8‑1985. After considering counter‑affidavit and hearing arguments of both the parties the learned XII Civil Judge, Karachi disposed of this application holding that prima facie the plaintiff had failed to make out a plausible case for an injunction. Against this order of the learned Civil Judge dated 22‑8‑1985 the present respondent filed a Miscellaneous Appeal before the learned District Judge, Karachi on 7‑9‑1985. It is very pertinent to note here that on 2‑8‑1985 the oath taking ceremony took place and the relief sought in the application practically stood exhausted. This miscellaneous appeal is still pending before the learned District Judge. Perhaps realising the implications of the situation that the relief asked for in the application was no more available to the respondents, the‑respondents moved an application under Order VI, Rule 17, C.P.C. praying for amendment of the plaint wherein a substantial relief was sought to be introduced in the body of the plaint. This relief desired to be included in the plaint is as follows:‑‑ "(c) For a permanent Injunction restraining and prohibiting the defendants 2 to 6 from holding office or acting as office‑bearers or functionaries of Income‑tax Employees Association, Karachi in pursuance of the impugned results dated 7‑8‑1985 of Election of Income‑tax Employees Association, Karachi held on 1st August, 1985 and further restraining the defendants 1 to 6 from taking charge from the plaintiff and his panel or interfering or disturbing with the plaintiff and his panel management, control or supervision of Income‑tax Employees Association, Karachi till such time an Impartial and Fair election of the said Association is held." The learned 'District Jude has allowed this application and allowed the appellant /respondent to amend the plaint by including this para. and the respondent feels aggrieved against this order and has filed this revision in the High Court. I have heard both the learned counsel appearing for the applicant as well as respondent. The contention raised by the learned counsel for the appellant is that the learned Judge had proceeded to adjudicate the grievance which was not available 'to the respondent either as substantial relief in the plaint or indeed in the application under Order XXXIX, Rules 1 and 2, C.P.C. This grievance being of a very important substantial nature should be examined by the trial Court before whom the parties have yet to prove the substantial contentions raised in the pleadings. It would be open to the defendant/ applicant to contest this prayer and oppose the amendment of the plaint, if the proposed amendment is sought to be introduced in the plaint now pending in the trial Court. The counsel contends that the decision in this application itself would change the whole complexion on the merits of the controversies between the parties. Mr. Manzoorul Haq, learned counsel for the respondent, however, supports the order on the ground that as an appellate Court it was open to the learned District Judge to allow this amendment as he was clothed with this power as an appellate Court under Order XLI, Rule 33, C.P.C. Without going into the technicalities of this argument, the fact remains that neither in the application for injunction nor in the order this controversy has been brought up. Introduced at this stage it would mean that the relief sought in the plaint is being given a new turn which might cause prejudice to the applicant. If an amendment is sought it should better be preferred before the trial Court where the main plaint and the written statement would be subjected to the initial scrutiny. The appeal was filed against an interlocutory order on a. very precise issue seeking to restrain the oath taking or taking up the charge of the new office by the new incumbent. To introduce this new element and totally new relief at the appellate stage in a Miscellaneous Appeal against an interlocutory order would to say the least would not advance the cause of justice. The application is, therefore, allowed. The learned Judge is to proceed to dispose of the appeal accordingly. Order, dated 24‑10‑1985 is set aside. A . A . Revision allowed.