1990CLC151 (PLP)

This is an application for amendment of pleading of plaintiffs. Plaintiffs brought a suit for declaration claiming exclusive title by alienation, in the suit land, and prayed for issuing a perpetual injunction to restrain the defendants from interfering in their possession and further asked for specific performance of the agreement by executing regular sale‑deed by the defendants in their favour, in respect of the suit property.

2. It was averred that Mst. Fakhra, Begum, last owner of the property, transferred the suit land to plaintiffs for a sum of Rs.16,000 and executed an agreement to sell on December 1, 1977. Regular sale‑deed was not executed as at the relevant time, the local Deputy Commissioner had issued an order restraining the owners of land from selling it to any person. On execution of the aforesaid deed, possession of the land passed on to the plaintiffs. Mst. Fakhra Begum alienated the same land to defendants Nos.l to 4 through a registered sale‑deed on September 27, 1979 for a sum of Rs.80,

000. Plaintiffs challenged the aforesaid alienation for want of authority and title of the vendor. The trial Court upheld the claim of the plaintiffs relating to execution of agreement to sell and passing of consideration, but dismissed the suit for want of proof on other issues. On appeal before the Distict Judge, the finding of trial Court was reversed and the suit was decreed. The order of the District Judge was assailed in appeal before this Court.

3. During pendency of the appeal, an application for amendment of pleadings of plaintiffs was moved. The plaintiff‑respondents want to add in their pleadings that the agreement to sell was in fact a sale‑deed and relevant part of the body of the pleadings was desired to be modified accordingly. The application was opposed by the defendant‑appellants.

4. Raja Muhammad Siddique Khan, the learned counsel for the respondents argued that by introduction of proposed amendment, the nature of the suit and the cause of action would remain the same and that the proposed amendment was necessary so that the real controversy between the parties was finally settled. It was agreed that no further evidence was to be led for or against the proposition. Agha Ashiq Hussain, the learned counsel for the opposite side contended that no new plea could be raised at the stage of second appeal. It was emphasised that the suit of the plaintiffs primarily rested on their claim of acquiring the land through an agreement to sell. Now, therefore, they are debarred from raising a fresh plea to make believe that the deed of agreement was in fact a sale‑deed. In support of his contention, the learned counsel cited.

1. A I R 1976 Orissa 216:

2. A I R 1927 Allahabad 791 (2);

3. A 1 R 1927 Madras 791;

4. A I R 1929 Madras 349;

5. A I R 1929 Bombay 114;

6. A I R 1926 Calcutta 665;

7. A I R 1921 Lahore 284;

8. A I R 1921 Madras 636;

9. A I R 1921 Oudh 248; 10. 1909 I.C. 618; and 11. 1916I.C.740.

5. The proposition in hand pertains to amendment of pleadings at the level of second appeal. It is undefined that the procedure enshrined in Rule 17, Order 6, C.P.C., empowers the Court to allow amendment of pleadings of the parties at any stage of the proceedings on such terms, as it considers just. The spirit of law appears to be that actual controversy between the parties is decided finally so that litigation is put to an end. The rules of procedure are framed to advance the cause of administration of justice. Moreover, the consensus is that justice should not be denied to a party by adhering to technicalities of rules of procedure; rather, the technicalities of procedure must clear the passage for advancement of justice. It is with this object that no definite stage of proceedings, for allowing amendment of pleadings, has been prescribed in Rule 1.7. It is, therefore, wrong to suggest that an amendment relevant to the issues in controversy cannot be allowed at the stage of second appeal. This Court as well as the Supreme Court adhered to a liberal policy of allowing amendment of pleadings provided it was Satisfied that such amendment was necessary for decision of real issues In controversy. The obvious restrictions on allowing an amendment are that the proposed amendment may not change the nature or character of the suit or cause of action or it may not hamper the accrued rights of the opposite party. In absence of either of these conditions, the consensus is in favour of liberal attitude in allowing amendment of pleadings. The aforesaid principle finds complete support from the authority in Muhammad Sulaiman's case, P L D 1985 SC (A J K) 1 and Mohammad Iqbal's case decided by this Court, P L D 1987 A J K 170.

6. As noticed earlier, the plaintiffs asserted their title in the property by virtue of the document called agreement to sell executed on December 1, 1977. Primarily, the point of construction of the document is involved in the controversy. The apprehension of the plaintiffs' Counsel is that unless necessary amendment is not made in the pleadings, plaintiffs would be unable to canvass that the transaction in question amounted to sale. This is why it was agreed that on permission to amend the pleadings, plaintiffs would not lead any evidence. Agha Ashiq Hussain, the learned counsel emphasised that the proposed amendment was in fact a new plea of attack sought to be raised at the level of second appeal. This is how the learned counsel deemed it essential to oppose the proposed amendment as in his view, it was not permissible in law to raise a new plea in second appeal. The authorities cited by the learned counsel also support the view that it was against the practice to allow anew plea in second appeal.

7. In my view, raising a new plea in second appeal is different from seeking amendment of pleadings to include alternate claim or relief in the pleadings. The difference is very subtle. The rules of procedure authorise the parties to the proceedings to assert alternate facts in support of the claim or to seek alternate relief. The present case is not squarely a case of setting up alternate claim or relief. The plaintiffs have already asserted their title of ownership in the suit land. They relied on the document executed in support of their title. The contents and nature of the document remaining the same, only its construction is sought to be made to bring it within the purview of sale‑deed. The question of construction of document is a question of law. Therefore, such a question ordinarily can be raised even in the Supreme Court. It is, therefore, not purely a case of new plea raised for the first time in second appeal. The authorities from Indian Jurisdiction cited to oppose the proposed amendment do not directly apply to the proposition under consideration. Some authorities ralate to interpretation of section 54 of Transfer of Property Act. It is premature stage to go into the scope of Section 54 of Transfer of Property Act as here only the point of grant or refusal of proposed amendment is to be settled.

8. As mentioned earlier, the proposed amendment neither changes the character or nature of the suit nor the cause of action. It also does not affect any accrued right of defendant‑appellants. The relevant restrictions, to refuse an amendmgnt, do not stand in the way of the request for amendment of the plaint. It is explained that the application for amendment is moved in the light of the observations of this Court during arguments on merits. Nevertheless, it cannot be ignored that the application for amendment is moved at the stage of second appeal; the delay, if any, can be compensated by costs. It is, therefore, held that the proposed amendment is permitted subject to payment of Rs.500 as costs. A.A./377/H.CA. Application allowed