P L D 1966 Azad J & K 59 (PLP)

(b) That be can substitute survey No. 88 for survey No. 110 as being the property in dispute; (c) That the names of Amdad Ali Shah defendant and Sughra Begum plaintiffs be struck off and that Muzaffar Shah minor defendant who since the institution of the suit has attained puberty be treated as major. Sardar Muhammad Yasin Khan, learned counsel for the defendant‑petitioner has argued that the lower Court ought not to have allowed the amendment of the plaint because it would not only change the character of the suit but would also result in a change of the parties and the relief sought. Such an amendment, according to him, would substitute the original plaint by entirely a new claim and would deprive the defendants of a right which has accrued to them by lapse of time. Elaborating the last point he has urged that for cancellation or setting aside the sale‑deed the plaintiffs could institute suit within 3 years of its execution under Article 91 of the Limitation Act and as they have not been able to do so they cannot now ask for such a relief to the detri ment of the defendants. The learned counsel further stressed that all the reliefs available to the plaintiffs should have been claimed by them in the original plaint as contemplated by Order II, rule 2, C. P. C. and those not so claimed would be deemed to have been relinquished. For this reason too the amendment in respect of the relief for cancellation of the sale‑deed should not have been allowed. Finally it was argued by him that mere suit for posses sion without a prayer for cancellation of sale‑deed was not maintainable in view of section 42, Specific Relief Act and was bound to fail, therefore, permission to amend it by adding the fresh relief for cancellation of the sale‑deed was legally not warranted and would result in an irreparable loss to the defendants which cannot be compensated by costs. He has cited A I R 1938 Mad. 670, A I R 1935 Mad. 202 and A I R 1941 All. 44 in support of the points made out by him. In his reply it was argued by Syed Z. A. Shah, learned counsel for the respondents that permission to amend the plaint by addi tion of the relief for cancellation of the' sale‑deed was granted on 2‑5‑61 to which no objection was raised by the defendant applicant at that time and he, therefore, cannot be allowed to agitate this point after 5 years. He further argued that under Article 141, Limitation Act a suit by Hindu or Muhammadan entitled to the possession of immovable property on the death of Hindu or Muhammadan female can be instituted within 12 years from the date when the female dies and as Mst. Nur Jahan Begum the limited owner died in September 1953 and the amended plaint was presented on 6‑3‑65 it was within limitation. According to him Article 91, Limitation Act was not applicable to the present case. As for the other amendment his reply was that it was sheer inadvertence of the scribe that the survey number of the disputed property was given as 110 instead of 88 in the plaint. Even the defendants could not detect this mistake and have, therefore failed to take an objection in that behalf in their written statement. He pointed out that the insertion of wrong survey number could not have misled the defendants as the copy of the register of the sale‑deeds attached with the plaint contains the correct survey number and the same was sufficient to acquaint the defendants with the actual state of affairs. Regarding the substitution of legal representatives of Mst. Sughra Begum he has pointed out that an application to that effect was made by the plaintiffs as far back as 15th November 1958 which was within 90 days of the death of the deceased and the omission of the Court to make an order on it cannot deprive the plaintiffs of their right to have the legal representatives of the deceased brought on file. He cited Fatima v. Sardara (P L D 1956 Lah.474), Niaz Hussain v. Imdad Hussain (P L D 1965 Lah.172) and A I R 1933 Mad. 158 (II) in support of the points made out by him. I have given my best consideration to the arguments addressed by the learned counsel for the parties and have perused the authorities cited by them and I am of the view that the order of the learned trial Judge is legally correct and need not be interfered with. The most important point for determination in this case is whether the amendment allowing the plaintiffs to add fresh relief of cancellation of sale‑deed has taken away any existing right from the defendants. If that is so then of course the amendment should not have been allowed. The contention of the learned counsel for the petitioner is that a suit for cancellation of instru ment of sale is governed by Article 91 of the Limitation Act which prescribes a period of 3 years from the date of the execution of the instrument. On the other hand learned counsel for the respondents has argued that such a case is governed by Article 141 of the Limitation Act which prescribes a limitation of 12 years from the date of the execution of the instrument. It is, therefore, obvious that the point of limitation is controversial one in this case and requires serious consideration before any definite opinion can be formed about it. The trial Court is the proper forum where after due enquiry the matter can be adjudicated upon and I would, therefore, desist from going into the matter and leave it to the trial Court for decision. In these circumstances when the question of limitation is yet to be decided it cannot be said that a right has accrued to the defendants by lapse of time and that such an existing right has been taken away from the defendants by the amendment. The law is that only that right which has already accrued to a party by lapse of time is protected under Order VI, rule 17, C. P. C. Where a party is only entitled to raise a plea of limitation it cannot be said that he has been deprived of that right in case an amendment is allowed. In A I R 1935 Mad. 158 (II) this proposition directly came under discussion. The learned Single Judge who decided the case after referring to the Privy Council authorities, e.g. 1921 P C 50, 57 I C 606 and 19 Q B D 394 held that:‑

"The kind of amendment which ought ordinarily not to be allowed, is that which takes away an existing right from the defendant and not that which would deprive the defendant of a bare right to raise a plea of limitation." It was further held in the same case that:‑-- "Where no new relief is prayed on the same cause of action nor fresh cause of action added by amendment sought to be made, it would be allowed." The facts of that case were that a suit was filed in 1932 on a promissory note executed in 1924. The ground on which exemp tion from limitation was claimed was, that there was a payment on 18th August 1930. The object of the amendment was to rely on a further ground of exemption namely, that there was an acknowledgment of liability. It was held that:‑‑ "The plaintiff could not be prevented from relying upon this fresh ground as the amendment proposed did not change the cause of action, nor did it bring in a new relief." In the present case the amendment proposed did not change the cause of action. The plaintiffs for the relief they have been allowed to claim by the amendment are still relying on their reversionary rights. Therefore, it cannot be said that the original suit would be substantially changed by the amendment as alleged by the learned counsel for the petitioner. I will now examine the rulings referred to by the learned counsel for petitioner and see if they support his case. The first authority cited by him is A I R 1935 Mad. 202, In that case it was laid down that:‑

"Except in special cases, leave to amend will be refused where the effect of the proposed amendment is to take away from the defendant a legal right which has accrued to him by lapse of time and not of a bare right to raise a plea of limitation. In this case A I R 1935 Mad. 158 (II) was followed and the amendment which was of a formal nature was allowed. The other case cited by the learned counsel for the petitioner is A I R 1938 Mad.

670. In that case it was also laid down that :‑-- "The power to make the amendment in plaint should not as a rule be exercised where its effect is to take away from a defen dant a legal right which has accrued to him by lapse of time." In this case A I R 1921 P C 50 referred to above was followed. It was also laid down in that case that: "It is true that the powers of a trial Court in matters relating to the amendment of pleadings are very extensive and have to be liberally exercised but it must not be overlooked that a party is not competent to place an alternative case which is not consistent with the case set up originally by him and that too at a very late stage. Nor can it be permitted when a party wishes to change the specific legal relation which he had alleged in his plaint or written statement with which he came into Court." In the instant case no alternative case which is inconsistent with the original plaint has been set up by the plaintiff on account of the amendment. The plaintiffs relying on their reversionary rights are seeking to get the sale cancelled. The case although' instituted quite a few years back is yet in its initial stage and no evidence so far has been adduced by any party in it. Therefore, the amendment allowed to be made cannot under any circum stances result in any irreparable loss to the defendants. Same is the case with the amendment in respect of the Khasra number. The copy of the sale‑deed attached with the plaint clearly indicates that the property which is the subject of the dispute and in respect of which a decree is sought is Khasra No.

88. It was probably an oversight of the scribe who drafted the plaint that instead of Khasra No. 88 an incorrect Khasra number, i.e. Khasra No. 110 was inserted. This being a mere formal defect removal of it by an amendment should have been allowed by the trial Court. In somewhat similar circumstances Kaikaus, J., in Sardara v. Fatima laid down that:‑ "In correct reproduction in plaint of the Khasra numbers, which were the subject of the suit, was a defect of a very formal nature, while correct Khasra numbers had been set out in the deed of gift, the basis of the suit, and while the Khata numbers were correctly mentioned in the plaint itself. Such a defect should be allowed to be corrected in Court without an adjournment." Niaz Hussain v. Imdad Hussain is yet another case: which is on all fours here. In that case the plaintiff' originally brought a suit for declaration that property in dispute was way/ but later on sought to amend the plaint by including the relief that if the property was not proved to be waqf he as a sole heir of the alleged waqf was entitled to its possession. It was held by Sardar Muhammad Iqbal, J. that:‑

"The trial Court was not justified in refusing amendment to include a prayer for possession of the property. By the substi tution of the relief of possession for one of declaration, there can be no question as to the change of the nature of the suit. It remains the same. The contention that by amendment of the plaint to include a prayer for possession the plaintiffs wanted to introduce a new cause of action is equally fallacious." The learned Judge in the course of judgment has also defined the expression "cause of action" and I think a reference to it would help in understanding the present case. The expression "cause of action" has been defined to mean "every fact which could be necessary for the plaintiff, if traversed, to prove in order to support his right to the judgment of the Court. In other words, it means the whole bundle of material facts which it is necessary for the plaintiff to prove in order to entitle him to succeed in the suit and which if not proved would give the defendant right to an imme diate judgment. It has, therefore, nothing to do with the relief prayed for by the plaintiff' or the defence that may be set up by the defendant, Whether the relief in the suit is one for declaration or posses sion the plaintiff will have to prove the same facts. The cause of action in either case, therefore, remains the same. The trial Court, therefore, was clearly in error to refuse the amendment on this` ground." The amendment was accordingly allowed. There is an application on the file which shows that the plaintiffs applied as far back as 15‑11‑58 for bringing on file the legal representatives of Mst. Sughra Begum deceased. It is borne out from the record that the surviving plaintiffs are the legal representatives of the deceased and therefore the amendment to that effect in the plaint is a mere formality which could not be disallowed in any case. For the foregoing discussion I would uphold the order of the trial Judge allowing the amendment and finding no substance in the revision petition reject it with costs. S. A. H./S. Q. Petition rejected.