2005 PLP 836 (CLD)

Nadeem Akhtar for Defendants Nos.6, 8 and

9. Qazi Faez Isa for the Remaining Defendants. Muhammad Zia Kiyani, Advocate. This listed Application (C.M.A. No.2548 of 2004) under Order I, rule 10(2) read with section 151, C.P.C. has been filed by Mr. Qazi Faez Isa, learned counsel on behalf of applicant/Intervenor, Qamaruzaaman Khan son of late Shujaat Ali Khan, who seeks joinder as a party to the proceeding. He contends that the said applicant seeks joinder in more than one capacity. According to him, he is the husband of Mrs. Mumtaz Khanum, the defendant No.5 (since deceased) and as her legal heir, he is entitled to be joined and arrayed as her successor-in-interest. He further contends that the property that was charged with the Bank, in fact, was Benami he is actual owner and late defendant No.5 along with her children who are the defendants Nos.2 to 4 were merely ostensible owners. The property was mortgaged with the Bank apparently after the demise of defendant No.5 in 1975 on fictitious documents. He further asserts that a suit for declaration of his right, title and interest has already been filed in the Court of Senior Civil Judge, Rawalpindi which is still pending adjudication. It is, therefore, claimed that since applicant is not only the legal heir but as true owner of the property, is entitled to defend his right and interest. Messrs Rizwan Ahmed Siddiqui, learned counsel appearing for defendant No.1 and A.I. Chundrigar appearing for the plaintiff oppose grant of listed application. They; however, concede that applicant may be arrayed as one of the legal heirs of deceased defendant No. 5 but not in any other capacity. Mr. Chundrigar further contends that defendant No.5 died in November, 1998 after creating charge over the property and not in 1975. Mr. Rizwan Ahmed Siddiqui, learned counsel further supplements by contending that in this suit, right and interest inter se between the proposed defendant and other owners, defendants Nos.2 to 4 cannot be agitated in this suit. I have heard the arguments and perused the record. It appears that there is no dispute that Qamaruzaaman Khan is husband of defendant No.5. If nothing more he could be added as a legal heir of the said deceased defendant No.5. As regards the dispute as to when the defendant No.5 died, is indeed a question that requires consideration as according, to Mr. Qazi Faez Isa, learned counsel, she passed away on 6-6-1975 as per death certificate, available on record at page 1461. Such fact is disputed by defendants Nos.2 to 4 who assert that she in fact passed away in November, 1998 and charge was created-over the property some time, in March, 1998. This question, certainly, would be relevant for the purpose of determination the validity of the Charge by the defendant No.5. In view of the foregoing reasons and under the circumstance, said, Qamaruzaaman Khan arrayed as a successor, of defendant, No.5, who will step into the shoes and may avail of the plea, that would have been availed by defendant No.5. Amended title to be filed within a week and written statement by newly added defendant be also filed within one month with advance copies to all the contesting parties. C.M.A. No.2548 of 2004 stands disposed off in above terms.

2. This application (C.M.A. No.2424 of 2004) under Order VI, rule 17 read with section 151, C.P.C. has been filed by defendants Nos.6, 8 and 9, who seek amendment to their leave to defend application filed earlier being C.M.A. No.1453 of 2003. It is urged that under the then laws, defendants Nos.6, 8 and 9 have raised pleas challenging various transaction and charge documents foisting the 'liabilities on them. According to Mr. Nadeem Akhter, `learned 'counsel, unconditional leave to defend was solicited on, the grounds raised in earlier application. Through this amendment application, defendants Nos.6, 8 and 9 seeks to raise additional grounds or pleas as detailed in para. 5 of the application seeking leave to amend. It was contended by Mr. Nadeem Akhter, learned counsel for defendants Nos.6, 8 and 9 that such pleas do not change the complexion of their defence though belated. It does not alter the nature of the rights of the defendants to seek amendment. He however, contends that additional pleas only make elaboration which were raised earlier and no prejudice would be, caused to the defendant. The plaintiff would be entitled to file reply thereto. In support of his contention, he has placed reliance on (i) PLD 1960 Karachi 581, (ii) 1985 CL.C 2146, (iii) PLD 1985 SC 345 and (iv) 2004 CLD 1174. As against above, Mr. A.I. Chundrigar, learned counsel for the plaintiff challenged the maintainability of application. He contends that there are large number of charge documents which were not disputed by the defendants and execution of such documents were not denied. According to the learned counsel, nature and complexion of the suit will be changed and the defendants are estopped from raising any additional pleas at this belated stage. Though Mr. Qazi Faez Isa, learned counsel appearing for the other defendants are not concerned with dispute raised in instant application, points out that in terms of section 7(2) of the Act, 2001, where procedure was not provided for any eventuality, recourse may be had' to the provision of C.P.C., therefore, the application under Order VI, rule 17 would be maintainable. Having heard the arguments, perused the material available on record-and the case laws cited at bar. From the record, it appears that the defendants Nos.6, 8 and 9 had challenged the transaction on various score in earlier application (C.M.A. No. 1453 of 2003). It appears that more grounds supplementing grounds raised earlier are raised. The ratio in the cases cited at bar appears to be that where the plea raised is supplementary and not destructive could be allowed to be raised and even the limitation would not come in way to raise such plea. The only considerations should be that the plea should not be inconsistent or divergent to the pleas raised earlier. In view of the facts and for the reasons above, the application is allowed. The defendants are allowed to file the amended application within 15 days with advance copy to the plaintiff. Plaintiff will be at liberty to file Counter Affidavit. Mr. Nadeem Akhter, learned counsel undertakes to supply the copies of amended application to all the contesting defendants as well. C.M.A. No.2424 of 2004 stands disposed off in above terms. M.B.A./I-25/K Order accordingly.