2015 PLP 1997 (YLR)

MALIK MANZOOR HUSSAIN, J.

Through this common judgment in instant Revision Petition No. 689-P of 2008, I intend to dispose of connected Civil Revision bearing No. 690-P of 2008, as both the petitions arise out of one and the same impugned judgment dated 5-6-2008 passed by the learned Additional District Judge/Izafi Zila Qazi, Buner at Daggar, whereby appeal filed by the respondents was accepted and judgment and decree dated 16-12-2002 passed by the learned trial Court was set aside.

2. Briefly stated the facts of the petitions are that petitioner filed a suit for declaration and permanent injunction against the respondents. The suit was contested by respondent No. 2 and after recording pro and contra evidence, the learned trial Court through judgment dated 16-12-2002 partially decreed the suit to the extent of 3 kanals 19 marlas instead of 21 kanals 15 marlas. Feeling dissatisfied, both the parties preferred appeals and through common judgment dated 5-6-2008 appeal filed by respondent No. 2 was accepted and judgment passed by the learned trial Court was set aside, whereas appeal filed by the petitioner was dismissed, hence, both the petitions.

3. Learned counsel for the petitioner contended that the learned appellate Court failed to follow the law that in a suit for declaration if relief for specific performance of contract was not sought, then the suit could not be dismissed due to this technical fault, but as per decisions rendered by the superior Courts amendment was to be allowed in such eventuality. He placed reliance on the case of "Javaid Iqbal v. Abdul Aziz" (PLD 2006 Supreme Court 66).

4. Conversely, learned counsel appearing on behalf of the respondents when confronted with the judgment rendered in the case of Javaid Iqbal (Supra) could not distinguish the judgment.

5. Arguments heard and available record perused.

6. Since the case rest upon agreement to sale dated 17-9-1990, therefore, it was incumbent upon the petitioner to file a suit for specific performance of agreement as well as for other reliefs, as was already claimed by him. It is well established by now, that High Court in exercise of its revisional jurisdiction entitled to mould relief in view of the averments made in the plaint, evidence adduced by the parties and sufficient proof of the transaction of sale followed by delivery of possession. This power was also to be exercised by the learned appellate Court in order to avoid gross injustice to a party, who was non-suited purely on procedural and technical grounds. In the case of "Karimdad v. Arif Ali" (PLD 1978 Lahore 679), it was held that the trial Court can "suo motu" order directing amendment of plaint without any application and such power could be exercised even by the appellate or revisional Court where it finds essential for determination of the real question in controversy. In case of "Keramat Ali v. Muhammad Younas" (PLD 1963 Supreme Court 191), the Hon'ble apex Court observed that Court undoubtedly had full power to allow such amendment even where a legal right had accrued to the other side by lapse of time. In the case of "Javaid Iqbal v. Abdul Aziz" (PLD 2006 Supreme Court 66) under the similar circumstances, by setting aside the concurrent findings of Courts below, the case was remanded back by the learned High Court for amendment of plaint with the direction to the trial Court to treat the suit of respondents/plaintiffs as for specific performance and allow necessary amendment as well and that judgment of the High Court was affirmed by the apex Court. In view of what has been observed above, both the petitions are allowed and judgments passed by the learned Courts below are set aside and matter is remitted back to the trial Court with direction to treat the suit of the petitioner/plaintiff for specific performance along with other reliefs and allow necessary amendment as well. The other side is also at liberty to file amended written statement and both the parties be afforded an opportunity to produce fresh evidence, if they need so. As the main case is pending since the year 1996, therefore, it is expected from trial Court to expedite the matter and conclude the same within a period of four (4) months positively with intimation to learned Additional Registrar of this Court. MM/192/P Case remanded.