P L D 2013 Supreme Court 239 (PLP)

MIAN SAQIB NISAR, J.

Petitioner-pre-emptor in his plaint has categorically stated to have learnt about the sale on 10-10-2005 at 10-00 a.m. and made the first Talb, however, in the evidence produced by the petitioner, all the P.Ws. including himself in their statements-in-chief testified the time to be 11-00 a.m. It is thereafter that an application under Order VI Rule 17, C.P.C., seeking amendments in the plaint, was made so as to change the time from 10-00 a.m. to 11-00 a.m. This application has been dismissed vide order dated 2-6-2007, by the learned trial Court, however, revision against that order was accepted by the Additional District Judge, Mianwali on 7-5-2008. The above noted order was challenged by respondent No.3 (vendee) before the learned High Court in a constitution petition, which was allowed vide impugned order dated 7-7-2009 and by setting aside the order of A.D.J., the order of the learned trial Court has been restored.

2. Learned counsel for the petitioner by relying upon the judgment of this court reported as "Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1986 SC 345)" has argued that the amendments in the pleadings should be liberally allowed; furthermore, on the strength of the judgment of this Court reported as "Qamar-ud-Din v. Muhammad Din and others (PLD 2001 SC 518)", it is submitted that in the said matter, which was a pre-emption case, the date of talb-e-muwathibat mentioned in the plaint was allowed to be changed through amendments and it was held that such amendments shall not change the nature of the suit.

3. Heard. There can be no cavil that the court has ample authority and discretion to allow amendments of the pleadings in appropriate cases, which authority may be exercised at any stage of the proceedings in the trial, and in certain cases amendments can be permitted at the stage of appeal or even in the revisional jurisdiction. There also can be no disagreement that the power and authority in allowing the amendments shall be liberally exercised, however, keeping in view the salutary rule, that the proposed amendment(s) is/are expedient for the purposes of determining the real questions in controversy between the parties, it should not alter the nature of the suit or the defence. Similarly, at the same time some important fundamentals should also not be lost in sight and must be kept in mind by the courts while exercising such authority, in that, the amendment sought/proposed must not be tainted with dishonesty of purposes; it is not meant to withdraw and resile from an admission made in the pleadings of the parties; it should not cause prejudice to the opposite side, particularly to deprive such (opposite) side of a benefit attained by it from the evidence adduced on the record by the party asking for the amendment; the conduct and the motive of the party and the object/purpose behind the request for the amendment.

4. In the cases pertaining to pre-emption, the mentioning of date, time, venue and names of the witnesses in the plaint as per the law laid down by this Court in the case reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), have been held to be essential, which facts obviously are to be proved through evidence stricto sensu in line thereto. The petitioner in his plaint has, in unequivocal and unambiguous terms, mentioned the time as 10-00 a.m., where-after, written statement was filed by the respondents, issues were framed and the parties hereto were put to trial, till then the petitioner felt no expediency for the amendment of the plaint, so as to change the time given therein. Petitioner examined his witnesses and all the three P.Ws. including himself, in their examination-in-chief, which statements were recorded on 17-4-2007, deposed the time of making Talb-e-Muwathibat, as 11-00 a.m. This undoubtedly was a clear contradiction to the time given in the plaint thus, all of a sudden, it revealed to the petitioner that the time mentioned in the plaint is incorrect and should be correct, hence, he moved the instant application for amendments on 5-5-2007. From the above facts, it is evident that the application for amendment was moved with an object to overcome the noted contradictions, and to wriggle out of the effect of Mian Pir Muhammad's case (supra), thus, it can hardly be said that requesting for the amendment in the plaint was with an honest intention of the petitioner. Therefore, as the amendment sought was not with bona fide intention, the request should be declined to the petitioner on this score alone, as in the case of Mst. Ghulam Bibi's case (supra). Also, the intention of the party seeking the amendment has been considered to be a relevant factor for allowing or refusing the request, wherein it has been held "therefore, the plaintiff (the present appellant) could not be held to have acted in mala fide manner in not seeking the amendment before the trial Court", meaning thereby that the bona fides of a litigant, who is seeking an amendment, is a weighty element in that context.

5. Besides the above, while allowing the amendments of the pleadings, the Courts should also keep in view the admissions, which have been made by the parties therein (pleading), and the principle that the amendments should not be allowed, which in a way tantamounts to the withdrawal of the admission or would obliterate the admission; reference in this regard can be made to the case reported as "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)". We find that in the present case, by virtue of the amendment, the petitioner wants to withdraw from his admission about the time given in the plaint and that too after the recording of his statement and statements of other P.Ws and this is not permissible under the law.

6. In so far as the submission of the learned counsel founded upon the case reported as "Qamar-ud-Din v. Muhammad Din and others (PLD 2001 SC 518)", suffice it to say, that the verdict should be construed in the context of its own facts in that case the date of acquiring knowledge had been given in the notice of Talb-e-Ishhad, however, a different date was mentioned in the plaint, therefore, in order to bring the plaint in consonance with the contents of the notice, the application for amendments was made and allowed by the Courts seized of the matter and this order was not interfered by the Supreme Court.

7. Therefore, in the light of the above, we do not find any merit in this petition, which is hereby dismissed and leave refused. MWA/A-35/S Petition dismissed.