2007 PLP 441 (CLC)

MUZAFFAR ALI, J.

This civil first appeal has been directed against the order dated 29-11-2002, passed by the learned District Judge, Skardu, whereby the learned District Jude, Skardu has declined to allow the application of the appellants to seek amendments in the plaint. The facts relevant to the appeal are that when the Civil First Appeal No.29 of 1988, 50 of 1998 was sub judice before the learned District Judge, Skardu, the appellants filed an application to array the "Sarkar" and the respondents submitted the following documents along with the replication to the said application:

(i) Order of the Collector, dated 28-8-1993 and (ii) Mutation No.5363, dated 12-11-1996, admittedly the order, dated 28-8-1993 by the Collector and the Mutation No.5363, dated 12-11-1996" were passed and attested respectively during the pendency of the civil litigation between the parties before the competent Civil Courts. When the above mentioned documents were submitted before the Court along with the replication, the appellants felt legal requirement to meet the same by seeking amendments in their plaint, but the learned District Judge did not allow them. I-fence this appeal. I have heard both the learned counsel for the parties in detail. The learned counsel for the appellants urged in support of the appeal, that, the learned District Judge has totally ignored the principles of law, laid down by the august Supreme Court of Pakistan as well as the Honourable High Courts in Pakistan. The learned counsel for the appellants while arguing the case invited my judicial notice towards the operative part of the impugned order which is reproduced as under:-- "The appellants/petitioners have applied for amendments at belated state and further according under law, no amendment is to be allowed if the said amendments totally character of the suit and damage/effect the rights of the other parties. It is established facts that the plaintiffs/appellants have always to build and establish their claim sought in the plaint and not by the other party. Equity always and the vigilants and not the indolents." The learned counsel for the appellant stated the above reason to be against well-settled principles of law and perverse. He in support of his Version relied on the following case-laws: (i) PLD 1985 SC page 345 and (ii) 2004 CLC page 697 (K). On the other hand, the learned counsel for the respondents supported the impugned order with the contention that the learned District Judge has rightly declined the application as it has been moved at a very late stage and if it was allowed the character of the suit would be changed and a new cause of action would be introduced, however, no authority was relied upon. I have gone through the case-law relied by the learned counsel for the appellants and I am of the opinion that the principles laid down by their Lordships in the case Mst. Ghulam Bibi and others v. Sarsa Khan and others 1985 PLD SC 345, are the guidelines for the Courts in Pakistan in future, in this celebrated and exhaustive judgment, their Lordships have held that: (b) Civil Procedure Code (V of 1908)

O. VI, R.17

Amendment of pleadings

Delay alone in applying for amendment or expiry of period of limitation or increase in court-fee and change of jurisdiction, held, would not be a ground for refusing amendment in plaint. [Delay-Limitation] (d) Civil Procedure Code (V of 1908)

O. VI, R.17

Amendment of pleadings

Expression at any stage of proceedings" used in O.VI, R.17, C.P.C. not without significance

Word "proceedings" to be interpreted in a liberal manner so as to give a proper scope to rule in accordance with its purpose, as including appellate stage and that too up to the Supreme Court,

[Interpretation of statutes] In the presence of the above observations and interpretation of the law made by the august Supreme Court of Pakistan, the view taken by the learned District Judge in the case in hand that "an application moved at a belated stage could not be allowed", has no place in the hierarchy of law. The other important legal aspect of the case which has been ignored by the learned lower Appellate Court is also of most. significance, that, the documents mentioned above have not been produced by the respondents in the Court in compliance with Order XIII, rule 2' of the C.P.C., but produced at a belated stage along with the replication to the application under Order I, rule 10(2) of C.P.C., moved by the appellants, without complying the procedure laid down in Order XIII, rule 2 of the C.P.C. the learned District Judge placed the same document in the file in violation of law, that too without offering a chance to the appellants to meet the effect of the same and when being conscious of the fact, the appellants solicited the Court to meet the effect of the documents by challenging them through amendments in the plaint, the learned District Judge disallowed them by giving an erroneous and unfitted reason that is; (in his own words) "It is an established fact that, the plaintiffs/appellants have always to build and establish their claim sought in the plaint and not by the other party". I am astonished, how wrongfully, and erroneously the learned District Judge has tried to apply the above reason to refuse the amendment application. The other ground for setting aside the application, given by the learned District Judge has also made me wonder, when he held "if the amendments are allowed, the character of the suit would be changed and it would effect and damage the rights of the other party". I perused, the plaint to ascertain the above fact, that, whether the character of the suit might be changed if the amendments are allowed, but I am not inclined to accept this assertion of the lower Appellate Court, which is the result of misconception and erroneous, for the reason, that the suit is for "declaration and possession as consequential relief" and after being informed about a new development in respect of the subject-matter (admittedly during the pendency of the suit), that, is the order of the Collector, dated 28-8-1993 and Mutation No.5363, dated 12-11-1996. The appellants moved the application in question to meet the new situation and to challenge the authenticity and legal force of the above mentioned documents, as the appellants have challenged the other documents of like nature in the plaint, which were in their knowledge before institution of the suit. So the view taken by the First Appellate Court in this respect is fanciful and arbitrary. For holding this view I am further supported by the Honourable Judges of Karachi High Court in the case titled Mst. Mumtaz Begum and 8 others v. Province of Sindh. The facts of the above case precisely were that the petitioners instituted a suit for declaration and permanent injunction and subsequently during pendency of the suit, the petitioners were allegedly dispossessed, their contempt application was dismissed, the petitioners did not file an appeal against the impugned order and preferred an application under Order VI, rule 17 to amend the plaint, in which beside the other amendments, they asked for delivery of the possession but the learned trial Judge refused to grant the amendment application, inter alia, that, if the amendment application is granted, it would change the complexion of the suit and the application had been preferred at a belated stage. The petitioners invoked the constitutional jurisdiction of the Karachi High Court, wherein the learned Judges held the following reasons and the amendment application of the petitioners was allowed:-- "The delay alone in seeking amendment of the plaint is no ground to refuse amendment application. Amendment in the pleadings can be sought at any stage of the "proceedings" and the expression "at any stage of proceedings" used in the Order VI, rule 17 has to be liberally construed. Even the amendment in the pleadings has been ordered up to the stage of the Honourable Supreme Court. Additionally, the Courts are required in law to allow all such amendments that may be necessary for the purpose of determining the real question in controversy

Subsequent events

Duty of Court

During pendency of proceedings, if any development takes place in the proceedings, the Courts would not overlook such development and that too when it is material for the purposes of deciding controversy between the parties." Before parting with the operative part of the impugned order, the learned District Judge has tried to quote a legal maxim, but the same is not attracting in the case. The learned Judge has discussed various irrelevant reasons to refuse the application for amendment but has failed to discuss the important point, that, the amendments as prayed for by the appellants in their application were material or not for the purposes of deciding the real controversy between the parties. I am of the firm view, that the amendments as prayed for by the appellants were material for this purpose. The upshot of the above discussion is that the impugned order is set aside by accepting this appeal and the appellants are directed to file the amended plaint after incorporating the proposed amendments in it before the District Judge, Skardu on 7-8-2005, but subject to payment of cost of Rs.5,

000. F.B./8/Glt Appeal allowed.