2009 PLP 483 (YLR)

NADEEM AZHAR SIDDIQI, J.

By filing this application the plaintiff has prayed for amendments in the plaint and requested to allow him to add the prayer of specific performance of agreement in the prayer clause. Learned counsel for the plaintiff submits that the amendment will not change the nature, complexion and cause of action of the suit. He further submits that the amendment can be sought at any stage of proceedings and the same should be liberally construed. He then submits that the suit was filed on the basis of agreement to sell dated 31-7-2006 and relying on the same agreement the plaintiff is seeking amendments in the plaint. He refers to para. 11 of the plaint in which the plaintiff has submitted that he is willing to purchase the suit property as per the agreement. He also refers to para. 9 of the written-statement and submits that the defendant has admitted that the specific performance was the essence of the said agreement. Learned counsel has relied upon following reported cases:

(1) Mst. Barkat Bibi v. Khushi Muhammad 1994 SCMR 2240, (2) Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345, (3) Mst. Arshan Bibi v. Maula Bakhsh 2003 SCMR 318, (4) Semco Salvage (Pvt.) Limited v. M. V. Kaptan Yusuf Kalkavan 1993 SCMR 593 and (5) Hazrat Zubir Obaid-ur-Rehman Farooqi v. Capt. Fareeduddin 2006 CLC 1304. The defendant has not filed any counter-affidavit to the said application and has straightaway argued the said application. Learned counsel for the defendant has opposed the application and submits that the amendment is not bona fide and bas been filed as an afterthought. He submits that the plaintiff himself committed breach of agreement and has filed suit for recovery of amount paid by the plaintiff to the defendant which was forfeited. He refers to para 11 of the plaint and submits that the plaintiff has disputed the agreed sale consideration and has refused to pay the same unless ascertained by impartial surveyors. He then submits that at the time of filing of the suit the relief of specific performance was available to the plaintiff, who abandoned the same prayer for the reason that at that time the plaintiff considered that the price of the property has gone down and when the value of the property increased manifold this application for amendments has been filed which will change the complexion and nature of the suit and the relief claimed in the suit. He then submits that the cases cited by the learned counsel for plaintiff are distinguishable and are not applicable as in. all the cases the relief of declaration was prayed and in that context the consequential reliefs of possession and specific performance was allowed to be added. It is now well-settled principle of law that the amendment can be allowed at any stage of proceeding provided the fundamental character, nature and complexion of the suit is not altered. The subject matter of the suit and the cause of action cannot be allowed to be substituted. In this suit admittedly the plaintiff has not claimed specific performance of the agreement. From the plaint it appears that the plaintiff is disputing the agreed sale consideration mentioned in the agreement and is asking for ascertaining the market value of the property by impartial surveyor. The plaintiff has also filed CMA No.3058/2007 under Order XII, Rule 6, C.P.C. for decree on admission. The jurisdiction to allow amendment is discretionary with the Court and the same is to be liberally construed and exercised in accordance with the settled judicial principles. It is necessary for exercise of discretion that the applicant has acted in good faith. The court is not bound to accept the amendment tainted with mala fide. The test of bona fide is that proposed amendment is akin, consistent and ancillary to main proposition in dispute and should not in any manner change the nature and complexion of the suit and cause of action. The amendment taking away right accrued to other party cannot be allowed. In the instant case, at the time of filing of the suit relief of specific performance was available to the plaintiff, who deliberately relinquished that relief and opted for the relief of return of earnest money and liquidated damages as provided in the agreement. In the plaint the plaintiff himself very specifically pleased that it was mutually agreed between the parties by virtue of clause 3(c) of the agreement that the same shall stand terminated in case of breach of covenants of the agreement by either party. The plaintiff in para 10 of the plaint further pleaded that the parties have fixed a specified amount in the agreement as liquidated damages. In para. 11 the plaintiff has pleaded that he was constrained to send a legal notice to the defendant on 14-11-2006 intimating her that unless the sale transaction was completed within three days of receipt of the notice, the agreement would stand terminated and the plaintiff would be left with no other option but to initiate appropriate legal proceedings. This clearly reflects that the plaintiff himself terminated the agreement and at this stage he cannot claim specific performance of agreement. Furthermore, from perusal of the agreement it appears that in case of breach the parties instead of seeking specific performance have agreed to claim damages from each other. Due to termination of the agreement by the plaintiff himself a valuable right has been accrued to the defendant, which cannot be taken away by allowing proposed amendments in the plaint. From the perusal of the Judgments cited by the learned counsel for plaintiff it appears that in all the suit declaration with regard to the right and title in the suit properties were claimed and in that context the consequential relief of possession and specific performance were allowed. The Judgments cited by the learned counsel for plaintiff have distinguishable facts and have no direct bearing upon the merits of this case. In this case since filing of this suit the plaintiff has not shown any interest in he property itself and was only interested for the refund of the earnest money and the damages stipulated in the agreement. The contention of learned counsel for the' defendant that the proposed amendment was sought due to increase in the value of the properties appears to be correct, hence the conduct of the plaintiff is not above board and under equity he is not entitled to the relief of amendment in the plaint. In view of the above discussions, the application is dismissed. M.H./M-191/K Application dismissed.