2016 PLP 1570 (YLR)

YAR MUHAMMAD, J.

Through this revision petition the petitioner has targeted the order dated 01.10.2015 passed by Addl. District Judge, Gilgit whereby the learned Judge has dismissed the application filed under Rule 17 of Order VI, C.P.C. by the petitioner/plaintiff seeking some amendments in his plaint.

2. Briefly the background of this revision is that petitioner/plaintiff filed a suit in the court of learned Civil Judge, Gilgit seeking declaration that the disputed land measuring about 6 kanals under survey No. 1994 situated at muza-e-Jutial is owned by him as allotee therefore, the defendants Nos.1 to 3 be restrained from ejecting/ dispossessing him from the suit land. The suit was contested by the then existing defendants through filing written statements. At the verbal request of the learned counsel for the plaintiff the learned trial court on 30.3.1998, impleaded Haji Qalander (defendant-8) as necessary party. The added defendant also resisted the claim of the plaintiff through filing separate written statement wherein he contended that the disputed land has been allotted to him by the competent authority. After completion of a full dress trial, the learned trial court dismissed the suit through his judgment dated 14.5.2011.

3. Being aggrieved and dis-satisfied with the above findings returned by the learned trial Judge, the plaintiff filed Civil First Appeal in the court of learned District Judge, Gilgit impugning the said judgment. During pendency of the appeal the plaintiff filed an application under Rule 17 of Order VI, C.P.C. seeking some amendments in his plaint. Since the appeal was entrusted to learned Addl. District Judge who instead of first deciding the application for amendment, adjudicated the appeal through his judgment dated 27.6.2015 dismissing the appeal. Against the said judgment, a revision was filed in this court. The revision was decided by this Court on 7.9.2015 vide which the judgment dated 27.6.2015 of the Additional District Judge was set aside and remanded the case back to the same Court with direction to decide the application for amendment first and then the appeal. The learned Addl. District Judge accordingly decided the application for amendment of the plaint dismissing the same through order dated 01-10-2015, hence this revision challenging the propriety and validity of the said order.

4. I have heard the learned counsel for the parties and the Addl. Advocate General in detail and have gone through the pleadings and other documents brought on record by the parties. Mr. Latif Shah, Advocate the learned counsel for the petitioner/plaintiff argued that initially the defendant-8 was not impleaded in the suit and he was impleaded on 30.03.1998 deeming as necessary party but no amendment to the extent of the added defendant was introduced in the plaint which was mandatory in the eye of law specially when he is contesting the suit. The learned counsel next argued that the allotment order in respect of the suit land issued in favour of the plaintiff has not properly been pleaded in the plaint and that the adverse claim of defendant 8 as owner of the suit land as allotee is also required to be thrashed out for which the proposed amendments became mandatory so as to give fair chance to the parties enabling them to establish their respective version. Mr. Munir Ahmad, Advocate and the Addl.A.G. on the other hand while defending the impugned order have contended that at this belated stage of the proceeding the application for amendment could not be entertained. They argued that the application seeking amendments has been pressed into service at this belated stage is for nothing except to prolong the litigation. They argued that about the claim of the plaintiff regarding the suit land has been allotted to him, an issue already has been framed and decided against the plaintiff therefore, there is no need to agitate the point again through introducing the amendments under consideration. The learned Addl. Advocate General while advancing arguments contended that the suit land is purely Khalisa land exclusively owned by the Provincial Government.

5. According to the application for amendment, the plaintiff through these amendments is desirous to add some facts negating the contention of defendant-8 because defendeant-8 is also claiming to be owner of the land as allotee. It is admitted principle of law that when a person is made party in a suit especially as defendant, plaint is normally amended to the extent of added defendant. In the instant case both the plaintiff and the defendant-8 are claiming that the disputed land has been given to them through allotment, therefore, this controversy is required to be thrashed out for which it becomes mandatory that the allotment order in favour of the plaintiff must be pressed and pleaded properly and also to provide fair chance to the Government and the defendant-8 to resist the plea of the plaintiff. In the application for amendment the plaintiff wants to insert the allotment order with its office number and date on which it has been issued in his favour. This will facilitate the Government to go through the record to find out if such allotment order is available in their record or otherwise. In the application the plaintiff has further alleged that record of right namely "Jamabandi" in respect of the suit and has been prepared in favour of the defendant-8 through "over writing". Whether it is an allegation or fact, same demands to be thoroughly investigated so that possible rights of the parties may be avoided from being infringed.

6. Under these amendments, the plaintiff is intending to add some facts relevant to the dispute which would be helpful for proper adjudication of mentioned in the plaint the dispute that also without changing the nature and shape of the pleading and the facts already mentioned in the plaint. It is also admitted principle of law that when an amendment is allowed in the plaint, automatically a right is created in favour of the defendants to meet the situation through filing amended written statement to the extent of the amendment. This way too, there is no chance about any surprise to be given to the defendants. Filing of an application at belated stage is no valid ground for its rejection. Amendment could be introduced at any stage of the proceedings provided that the same is necessary for proper disposal of the suit.

7. For the reasons what have been discussed above, the revision petition is accepted, set aside the impugned order dated 1-10-2015, passed by the learned Addl. District Judge Gilgit and as a result thereof, the application for amendment of the plaint is accepted against cost Rs.10,000/- (ten thousand). Consequently, the judgment and decree dated 14.5.2011 passed by Civil Judge, Gilgit in Civil Suit No.2/1998 is set aside. Case is remanded back to the trial court for decision afresh after taking amendment plaint and the written statement from the parties. The parties are directed to appear before the learned trial Court on 31.3.2016 and on same date the plaintiff shall file the amended plaint. ZC/10/GB Revision allowed.