2013 PLP 1548 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

The petitioner being plaintiff, through instant revision petition has questioned the judgment/order dated 4-10-2012 of Civil Judge-V, Charsadda whereby his application for permission to amend his plaint was disallowed.

2. The brief but the material facts leading to the present controversy are that the suit property being originally owned by one Ahmad Khan deceased, devolved upon his son Ismail Khan and his six daughters. The said Ismail Khan and his few sisters alienated the property in favour of his sons (sons of Ismail Khan) by way of a gift vide Mutation No. 365 dated 22-6-1998. Thereafter an area of 8 Kanals was sold to present plaintiff/petitioner by way of registered Sale-deed bearing No. 102 dated 10-4-2000 by the sons of Ismail Khan i.e. the donees. The said gift mutation and registered sale-deed were later on challenged by way of two separate Suits bearing No.97/1 and 109/1 of 2000. Both the suits were decreed by declaring the gift and the above said sale as null and void and these findings were upheld up to the Apex Court.

3. The plaintiff/petitioner being bona fide purchaser of the portion of the property, filed instant suit against Ismail Khan and his sons for recovery of sale price and damages etc. The decree-holder of the previous two civil suits by then had applied for execution of the decrees in their favour but the plaintiff/petitioner by claim-ing himself to be the bona fide purchaser of the suit property resisted the execution petition by trying to retain the possession of the area purchased by him but his this effort also failed up to the Apex Court.

4. During the pendency of the present suit, Ismail Khan son of Ahmad Khan, defendant No.4, died and his share in the legacy of his father Ahmad Khan devolved upon his legal heirs i.e. the defendants, the donees of the gift mutation. So in the given scenario, the petitioner filed an application before the trial Court to seek permission for amendment of his plaint as his vendors having defective title at the time of the sale in his favour, have become lawful owners of the suit property during pendency of his suit. So, besides other claims, he be allowed to ask for the property purchased by him by way of suit for declaration of his title. His said application was turned down by the trial Court vide its judgment/order dated 4-10-2012. Hence, present revision petition on the ground that refusal of his prayer for amendment is patently illegal and is the result of unlawful exercise of jurisdiction. The learned counsel for the petitioner in support of his submissions placed reliance on the cases of Mst. Ghulam Bibi and others vs. Sarsa Khan and others (PLD 1985 Supreme Court 345), Javaid Iqbal v. Abdul Aziz and another (PLD 2006 Supreme Court 66) and Niamatullah Khan and 10 others v. Additional District Judge Bannu at, Lakki Marwat and 3 others (1994 MLD 2332).

5. The respondent No. 10 (one of the decree-holders of civil suit) was also impleaded as a party (who was not a party before the trial Court) only for the reason that she, in her execution petition, was trying to seek the possession of the property in possession of the present petitioner. The main contention of the learned counsel for respondent No.10 was that since the claim of petitioner was turned down up to the Apex Court to retain the possession of suit property, so her impleadment as respondent in the present revision petition is against the law and petitioner has no concern whatsoever with the execution of her decree and thereby interim injunction issued in favour of the petitioner in civil revision is against the law having no legal effect against her rights.

6. Learned counsel for the remaining defer defendant/respondents contended that the amendment asked for was rightly refused by the trial Court as it was going to change the entire nature of the suit which under the law is not permissible.

7. Learned counsel for the parties were heard and record of the case was perused.

8. Perusal of the record would reveal that the petitioner had filed instant suit against his vendors and their father Ismail Khan for recovery of sale consideration as well as damages etc. but during the pendency of the instant suit, the father of his vendors namely Ismail Khan passed away and the defendants inherited his property and became lawful owners by way of inheritance. Though they had initially sold away the property claimed by the present petitioner vide registered sale-deed 102 dated 10-4-2000 but the ownership of his vendors by way of above said gift mutation was declared null and void by the competent Court of law and thereby the sale in favour of petitioner automatically crumbled down being the outcome of above said gift mutation. These findings were upheld up to the apex Court and the claim of present petitioner to be the bona fide purchaser was not accepted at that time. So in the circumstances, the only way left with the present petitioner was to ask for his sale consideration paid at the time of purchase of his property as well as damages against the vendors and their father Ismail Khan.

9. The death of father of his vendors during pendency of the instant suit has now changed the overall scenario as the property owned by Ismail Khan legally devolved upon his sons and they became true and lawful owners of the property during pendency of his suit. This situation compelled the petitioner to ask for the amendment of his plaint by asking for declaration of title on the basis of sale in his favour. Now the simple questions for consideration before us would be as to whether the petitioner in the given circumstances can ask for amendment of his plaint; whether such amendment under the law is permissible and as to whether the matter in hand was dealt with by the trial Court, in accordance with law on the subject.

10. The law with regard to amendment of pleadings is settled by now. Order VI, Rule 17 of C.P.C. deals with the amendment of pleadings which for ready reference is reproduced below:-- "Rule

17. Amendment of pleadings.

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." A look at the above provision of law would make it abundantly clear that amendments in pleadings which are necessary for the determination of the real questions in controversy between the parties can be allowed at any stage of the proceedings. The word proceedings as used in the above quoted rule can in no way be confined to the proceedings of a suit alone. The proceedings can also be that of appellate/ revisional Court. Even the proceedings before the apex Court would also be covered under the simple and plain language of the law. The amendments in the pleadings in appropriate cases have been allowed even by the Apex Court. The purpose behind such a vast and broad scope of the provision of law is nothing else but to determine and decide the actual and real questions in controversy between the parties so that the disputes between the parties be decided in one-go and they be saved from further litigation and other legal complications of the future. If proper and genuine amendment in pleadings is not allowed then it may create legal problems under Order II Rule 2 of C.P.C. and constructive res judicata for applicant. The real questions in controversy between the parties are those which are under the issues. The question of sale in favour of petitioner is already in issue and the amendment asked for will not change the nature of suit but would be of the sort which can lead the Court to decide all the questions in controversy between the parties. The developed law on the subject lays simple embargo on permission for amendment of pleadings and, that is, that it may not change the cause of action so as to make it a totally new suit. It cannot be refused where it is emanating from the facts mentioned in the plaint. In the case of Nizamullah and others v. Gohar Taja, and others 2003 YLR 2008, it was held as under:-- "It is by now well-settled that amendment in pleadings cannot be refused if this is emanating from the facts mentioned in the plaint especially when it does not tend to change the cause of action. No doubt the petitioner primarily instituted a suit for declaration but later on when he came to know that the form of suit was not proper and that prayer for specific performance of contract was essential for its success, he accordingly made an application for amendment in plaint which could not have been refused by the Courts below particularly when there was nothing on the record to show that it was motivated by any mala fides and that when it emanated from the same bundle of facts narrated in the plaint constituting the cause of action in the suit." It was further held as follows:- "Since there is nothing on the record to show that application for amendment of plaint, though belated, was motivated by the mala fides no fetish of technicalities can be made to an extent that the purpose behind them is neglected to oblivion and only they are allowed to reign supreme, moreso when their only utility is to provide a stepping stone rather than a stumbling block in the way of administration of justice." A suit for specific performance can be changed into a suit for declaration and vice versa. Similarly a relief for declaration can be added in a suit for permanent injunction and all such changes would not change nature of the suit. The word "alter" used in the rule gives it a bit wider aspect than word amendment. If a Court comes to the conclusion that amendment in the pleadings was necessary to do the complete and substantial justice between the parties, then it can make an order in this regard to achieve the end of justice and to prevent the abuse of process of Court. The landmark judgments of the Apex Court in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 Supreme Court 345) can be referred in this regard.

11. Now reverting back to the facts and circumstances of the case in hand would make us to opine that the death of Ismail Khan, the father of the vendors of the petitioner, has altogether changed the scenario of the case. This death has made them true and lawful owners of the property. So, in a suit for recovery of sale consideration along with damages, the petitioner cannot be refused to seek the declaration of his title in the given circumstances. This will lead the Court to consider and determine all the controversial questions between the parties. This permission can also save the petitioner from future legal complications like constructive res judicata and a bar under Order II Rule 2, C.P.C. The case of Niamatullah Khan supra also can be referred in this regard.

12. We, in the circumstances, have been compelled to allow this revision petition and to declare the verdict of the Court below being illegal and without lawful authority having no legal effect on the rights of petitioners. Hence the judg-ment/order dated 4-10-2012 is set aside and petitioner is directed to file amended plaint. Parting with the judgment, we will further hold that the trial Court should expedite the matter and decide the lis between the parties within four months. SAK/160/P Revision accepted.