2016 PLP 1588 (MLD)

MUHAMMAD ALAM, J.

Order dated 12-03-2014 of the learned Additional District Judge Skardu, that he passed in CFA No.22/2012, has been challenged through this petition.

2. CFA No.22/2012 was directed against order dated 10-09-2012 of the learned Civil Judge Shigar Camp at Skardu. Learned Civil Judge Shigar Camp at Skardu passed order dated 10-09-2012 in C.S. No.12/2012 and 39/2012. Through the said order, the learned Civil Judge held that the principle of res-judicata attracts to the suit between parties and the suit merited dismissal. During pendency of the appeal in the first appellate court, petitioners/plaintiffs filed an application under Order I Rule 10(2), Order XI Rule 17 and section 151, C.P.C. Through the said application, petitioners/plaintiffs prayed for two distinct and separate remedies. First remedy is for adding Provincial Government for G.B. and Collector Skardu as defendants No.5 and 6 and the second remedy is for amendment in the plaint. Learned first appellate court instead of passing distinct and separate orders on both the said two remedies, mingled up the two remedies and passed impugned order. Learned first appellate court dismissed the said petition through impugned order, hence this petition.

3. I have gone through the file and have heard learned counsel for parties at length. From plain perusal of pleadings of the parties, it is evident that the suit of the petitioners/plaintiffs is based on a compromise dated 22-04-1987 and decree dated 21-09-1995. Both the said compromise and decree are regarding government land and the provincial government for G.B. and the Collector Skardu have neither been impleaded to the previous suit nor have been impleaded to the suit in hand. Once it is admitted that the lands, which are subject matter of this suit as well as of the previous suit, that entailed to the compromise dated 22-04-1987 and decree dated 21-09-1995, the provincial government and the Collector Skardu are necessary parties to the case.

4. Second part of the petition for amendment of plaint, dated 29-09-2012, is for amendment of the plaint. So proposed amendment is an alternate relief and has been embodied in para No.4 of the petition in the following words:-- While passing impugned order, the learned first appellate court has not based the impugned order on any genuine ground and has rather simply dismissed the same holding that the said application was filed just to linger on the litigation. In my opinion, the learned first appellate court was legally bound to take up every proposed amendment for discussion. The propriety or otherwise of the proposed amendments must have been discussed distinctly in the light of the law governing amendments. Obviously, delay in seeking amendment of pleadings is very rarely a ground for turning down the proposed amendment if otherwise the same is genuine.

5. I, therefore, hold that adding of provincial government and District Collector Skardu to the plaint is necessary but as to amendment sought in the plaint, I direct the learned first appellate court for hearing the parties afresh and pass appropriate orders. Petition, therefore, partly accepted. Learned first appellate court is directed to remand the case back to the trial court with direction to add provincial government of G.B. and Collector Skardu as defendants to the plaint but said remand order be passed after hearing parties and passing any order on the proposed amendment, embodied in Para No.4 of the petition dated 29-09-212 for amendment of plaint. This petition party accepted. Case remanded to the learned first appellate Court with the above directions. Parties to bear their own costs. File be consigned to record. HBT/89/GB Case remanded.