1994 PLP 2239 (MLD)

Petitioners Muhammad Siddiq and Muhammad Hafeez, etc. respondents Nos.3 to 11 are the owners of the suit land. An agreement to sell was executed by them/on their behalf in favour of Muhammad Baldish and Shahab-ud-Din, respondents/plaintiffs on 3-8-1986. Out of the sale-price Rs.4,00,000 were paid in advance.

2. Differences having developed the two respondents/plaintiffs filed a suit on 27-7-1988 for specific performance of the contract and only Siddiq petitioner and Hafeez respondent (defendants Nos.1 and 2) entered contest. The others do not seem to have seriously contested the suit as per their written statement.

3. Issues were settled on 7-6-1989 and the case is at the stage of evidence.

4. On 18-5-1991 application under Order VI, Rule 17, C.P.C. was moved by the contesting defendants i.e. the petitioner and Hafeez respondent for the amendment of the written statement. This was contested and dismissed by the learned Civil Judge on 6-6-1991. This is the subject of the present revision petition.

5. Since the order of the learned Civil Judge is so thirsty in matter of statement of facts and the question involved that it makes neither head nor tail, hence the necessity to have look at the pleadings of the parties and the amendment desired to be made a little in detail.

6. As pointed out above, the suit is for the specific performance of the contract. In para. 4 of the plaint it is pleaded that in part performance of the agreement to sell dated 3-8-1986, 11 sale-deeds in favour of various vendees with respect to all plots all measuring 4 Kanals, 5 Marlas had been executed through the attorney of defendant No.3 as defendant No.2 had been struck with heart-attack and defendant No.1 was looking after him. Later to these sale-deeds three sale-deeds were executed for three plots of 10 Marlas each by the defendants jointly. In para. 4 it is pleaded that a sum of Rs.74,375 was paid to the defendants through defendant No.3 when the 11 sale-deeds were executed and another sum of Rs.26,250 was paid to the defendants when later on the three sale-deeds were executed. In the corresponding para. 4 of the written statements of defendants Nos.1 and 2 there is only the general denial in the words with respect to para. 5 it was pleaded that the sale-deeds for 4 Kanals 5 Marlas land, the assertion (in the plaintiff) was correct 4

but it was further pleaded that the consideration money had not been received. Then follows the general assertion that according to the agreement of the sale, the breach being on behalf of the plaintiffs, it could not be specifically enforced.

7. The application under Order VI, Rule 17, C.P.C. gives the details of the amendments desired to be made in paras. 4 and 5 of the written statement of the contesting defendants. In para. 4 it is desired to add that defendant No3 had no right to receive the amount of Rs.74,375 nor was any paid to them by him. The 11 registered sale-deeds were the result of and through to interfere with the interest of defendants Nos.1, 2 and 4 to 10, according to special power of attorney Shahab Din (plaintiff) had no right to execute the registered deeds nor the full money with respect to the other three registered deeds had been paid. The 11 registered deeds were not executed on behalf of the contesting defendants Nos.1 and 2 and these were the result of collusion between defendant No3 and the plaintiffs. It is also desired to add the amendment to the effect that Mst. Sardar Begum was n the attorney on behalf of the heirs of her deceased husband Muhammad Yaqub and so not entitled to sell on their behalf.

8. As pointed out above in para. 4 of the plaint there is detailed submission of facts and this was generally denied in the written statement. However, in para. 5 of the written statement the execution of the 11 registered deeds was accepted but the payment of consideration was denied. Learned counsel for the respondents is perfectly correct to say that admission once made cannot be withdrawn unless, of course, as correctly contended by the learned counsel for the petitioner, the admission was based on some mistake. No mistake prima facie appears and if at all there is anything further to be discussed, that I leave for the learned trial Court to decide as the observations by this Court may affect the mind of the learned trial Court, nothing need be said in this behalf. The statement of Muhammad Munir, defendant No.3 who is brother of the contesting defendants has been recorded in Court and it is in line with his written statement supporting the plaintiffs' case. Might be in view of his statement the contesting defendant's petitioners had to review their position and thus felt the necessity of elucidation of their pleadings. Order VI, Rule 17, C.P.C. provides that the Court may, at any stage of the proceedings, allow the amendment as may be necessary for the purposes of determining the real question in controversy between the parties. So far as the question whether the agreement can be or must be specifically enforced or not and the attending questions are already in issue and the parties if desire can lead evidence. At this stage the sort of amendment desired to tailor the evidence t cannot be allowed.

9. Finding no force in the revision petition the same is dismissed. H.B.T./M-1741/L Petition dismissed.