1995 PLP 838 (MLD)

Hayatullah son of Abdullah Khan of Lakki Marwat brought a suit for permanent injunction against Gul Janan son of Saidbar and another, during the endency whereof it was felt that the suit was likely to fail for not asking for declaration of title. The same was applied for through an amendment in the plaint which was allowed by the learned Additional Civil Judge, Lakki on 28‑1‑1992 but the same was disallowed in revision by the learned Additional District Judge, Bannu at Lakki vide order dated 5‑7‑1993, holding that the' desired amendment had the effect of changing the nature and character of a suit.

2. Obviously there was no further remedy available, the legal heirs of Hayatullah plaintiff (who is dead by now) have challenged the order dated 5‑7‑1993 of learned Additional District Judge, Bannu at Lakki through this Constitutional petition under Article

199. It was based on the ground that the impugned order is a patent illegality whereby precious rights of the plaintiff are likely to be most seriously jeopardised.

3. Haji Saadullah Khan Miankhel, the learned counsel for the writ petitioners has challenged the very exercise of jurisdiction by the learned Additional District Judge in the matter because the allowing of the amendment of plaint did not fall within the meaning of case "decided". He relied upon Ch. Ahmad Din v. The Australasia Bank Ltd. (1971 SCMR 507) that was followed in (1988 CLC 1041). Having gone through the pleadings of the parties and agreeing with the verdict of the Supreme Court, we are of the view that an amendment by way of adding a prayer for declaration is not a "case decided" whereby the rights of parties happened to get decided once for all and hence the very revision before the first appellate Court was not proper.

4. It is a matter of common knowledge and a consistent view of the superior Courts of the country that to add a plea of possession in a suit for declaration and vice versa does not operate to change the nature or character of the suit. Rather, at times it is thought expedient to bring about such amendment. Latest view expressed in this behalf is 1994 SCMR 2240 where it was ruled that amendment and alteration in relief does not ordinary change the nature of suit.

5. Numerous suits are instituted, entertained and adjudicated upon day in and day out where the prayers for declaration, permanent injunction or, in the alternative, a prayer for possession are joined in one suit. Sometimes the circumstances are such that a joinder of all such prayers becomes all the more necessary in order to avoid the application of the principle of constructive res judicata. Similar is the situation in the instant case that if the very title of the plaintiff is in dispute, he or they would be debarred from bringing a suit in future for such declaration under the principle of constructive res judicata as well as Order II, Rule 2 of the C.P.C. In the circumstances the learned Additional Civil Judge had rightly allowed the amendment prayed for. The learned Additional District Judge having wrongly applied the law, the impugned order, dated 5‑7‑1993 is hereby set aside through the acceptance of this writ petition. The order dated 28‑1‑1992 of the trial Court is restored. Parties are however left to bear their own costs. AA./1652/P Order accordingly.