2003 PLP 267 (PLC)

2. It is contended by the applicants/petitioners that though the Commission had ordered to maintain status quo but the respondents by one pretext or the other have dismissed all petitioners except Khalid Mahmood (petitioner No.7), therefore, the following amendment in the prayer clause, before the word "Respondents" has become necessary:-- "In case the services of the petitioners are dismissed, discharged, terminated or any injury is caused to their employment or employment of office-bearers or that of active members of the union, the affected workers may be reinstated with full back benefit". Notice of this application was issued to the respondents to file their reply. The respondents while filing their reply have resisted and vehemently opposed the application by raising inter alia the following preliminary objections as to the maintainability of the application:-- (i) that petitioners are seeking amendment in their petition, but they have filed the instant application under Order 1, rule 10, C.P.C: which is totally disoriented. (ii) that the petitioners are abusing the process of law by filing frivolous application. In order to correct and rectify the error and to remove the objection of the respondents, the petitioners have filed another application under section 153, C.P.C. for seeking permission to correct the error of quoting the wrong provision of law in the title of the application filed under Order 1, rule 10, C.P.C. by the applicants/petitioners earlier. It is contended in this application that erroneously due to clerical mistake in the title of the aforesaid application, the word and figure "Order 1, rule 10" was typed, while the aforesaid application for leave to amend the petition had to be .filed under Order 6, Rule 17, C.P.C. They have prayed that the word and figure "Order 1, rule 10" as mentioned erroneously in the title of the application for leave to amend the petition, may be read/corrected as ".Order 6, rule 17, C.P.C."

3. I have heard learned counsel for both the parties at considerable length and also given my anxious thoughts to the issues involved in the instant applications. Learned counsel for the applicants/petitioners has reiterated the applicants/petitioners stand taken in the application. While justifying filing of the instant application, he contended that section 153, C.P.C. permits to amend any error/defect in any proceedings for the purpose of determining the real question or issue raised by or depending on such proceedings. He further contended that the error in quoting the wrong provision of law i.e. "Order 1, rule 10" instead of "Order 6, rule 17 C.P.C." in the title of the application was due to clerical mistake which can be rectified/corrected at any stage provided it does not change character or substance of the application. He further contended that rules of procedure are meant to advance justice and to preserve rights of litigants and are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice and therefore, all the technicalities have to be avoided. He further submitted that the omission/error is not a fatal defect and can be corrected/cured at any stage as it would not change the nature of the application filed for seeking permission to amend the prayer clause of the main petition.

4. Regarding the application for seeking permission to amend the prayer clause of the petition, learned counsel for the applicants/petitioners contended that Order 6, rule 17, C.P.C. empowers the Court to allow either party to alter or amend the pleadings at any stage of the proceedings in such manner and on such terms as may be just and necessary for the purpose of determination the real question in controversy between the parties. He further contended that the main petition was filed on apprehension of unfair labour practice on the part of the respondents with the prayer to prevent commission of the acts of unfair labour practice not to dismiss, discharge, terminate or remove the petitioners, but during pendency of the said petition the respondents by one pretext or the other dismissed all the petitioners except Khalid Mahmood (petitioner. No.7). Therefore, for the purpose of determining that real question in controversy, amendment in the prayer clause is necessary. He contended that the proposed amendment in the prayer clause does not change character or substance of the petition. He prayed that leave to amend the prayer clause of the petition may be accorded as follows:-- "It is prayed that the petitioners Nos. 1, 2 and 4 to 7 whose services have been dismissed, discharged and terminated from employment by the respondents may be re-instated with full back-benefits and the respondents be directed not to commit unfair labour practice". In support of his contention, he placed reliance on the following judgments:- (i) 1988 SCMR 322. (ii) 1985 SCMR 824.

5. Replying to the contention of the learned counsel for the petitioners/applicants as submitted above; learned counsel for the respondents has strongly opposed the arguments of the petitioner's counsel and strenuously contended that the applicants have no cause of action and the present application is misuse of process of law, hence they are not entitled for any equitable relief. He further contended that the instant application in the present form is not maintainable. He contended that in terms of Order 6, rule 15, the application should be verified by the applicants but in the instant case, the application was tiled without any verification and affidavit. Replying to the objection .of the learned counsel for the respondents, learned counsel for the petitioners has contended that he had already tiled affidavit of Faisal Ali one of the applicants on 8-4-2002 in support of the application. however, any such omission does not have been the effect of making the application void. Learned counsel for the respondents has further submitted that the present application has been tiled on 3-4-2002 (about 4 years and 6 months after filing of the main petition), therefore, at this belated stage the amendment in the prayer clause of the petition should not be allowed.

6. I have given my anxious consideration to the submissions trade by the learned counsel for both the parties and also examined the record of the case minutely and have come to the conclusion that section 153, C.P.C. empower the Court to accord permission to amend/cure/correct any defect or error in any proceedings/application at any stage. Similarly in terms of Order 6, rule 17, C.P.C. leave to amend the petition can be granted at any stage so as to determine the real question in issue between the parties, provided it does not convert the petition into another, of different and inconsistent character. Further mere delay cannot be made the ground for refusing an amendment. In the instant case the main petition was filed on apprehension of Unfair Labour Practice on the part of the respondents with the prayer to prevent commission of the acts of unfair labour practice not to dismiss, discharge, terminate or remove the petitioners, but during pendency of the said petition, the petitioners (except Khalid Mehmood petitioner No.7) were terminated by the respondents and this fact has not been denied by the respondents, I am, therefore, inclined to agree with the contention of the learned counsel for the applicants petitioners that for the purpose of determining the real question in issue, amendment in the prayer clause of the petition is necessary. It is a general rule that Courts should be lenient towards application for amendment of pleading. It does not even matter if the application has been put in after delay provided it bona fide. It may be submitted that rules of procedure are meant to adduce justice and to preserve rights of litigations and are not meant to entrap them into blind corner as to frustrate the purpose of law and justice, and therefore, all technicalities have to be avoided.

7. In this view of the matter, I find that amendment in the prayer clause of the petition is necessary for the purpose of determining the real question in issue, I, therefore, allow the application under section 153, C.P.C. and the application dated 3-4-2002 filed under "Order 6, rule 17, C.P.C," by the applicants/petitioners for seeking permission to amend the prayer clause of the petition (Case No.4A(25) of 1998) as requested by the learned counsel for the applicants/petitioners as follows:-- "It is prayed that the petitioners Nos. 1, 2 and 4 to 6 Whose services have been dismissed, discharged and terminated from employment by the respondents may be re-instated with full back-benefits and the respondents be directed not to commit unfair labour practice".

8. The petitioners are, therefore, directed to file amended petition on the next date of hearing. To come up on 23-9-2002 for further proceedings. H.B.T./73/NIRC Application allowed.