1979 PLP 15 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑Special Leave to Appeal is sought by the petitioners from the revisional order of a learned Single Judge of the Lahore High Court, dated 2‑12‑1974, by which their civil revision arising out of proceedings in a suit for specific performance was dismissed as incompetent.

2. On 29‑8‑1970, the respondents filed a suit in the Court of the Senior Civil Judge, Lahore, against the petitioners and two others for special performance of an agreement,.‑ dated 3‑5‑1965 relating to the sale of two bungalows Nos. 6 and 6‑A, situate at Habibullah Road, Lahore, which the petitioners had allegedly committed to sell to the respondents for a consideration of Rs. 3,90,

000. On 14‑5‑1974, the respondents moved an application under Order VI, rule 17, C. P. C. seeking permission to amend the plaint which was confined to the addition of a new prayer clause in the relief claimed by them relating to the award of mesne profits/damages/compensation for use and occupation of the bungalows by the petitioners from such date as the Court might hold the respondents entitled to possession thereof up to the date of its actual delivery. The precise amount claimed was at the rate of Rs. 3,000 permensem with an interest at the rate of Rs. 10 per cent per annum. vide order dated 15‑6‑1974, the trial Court allowed the amendment on payment of Rs. 15, as cost. This order was unsuccessfully challenged by the petitioners before the High Court. Relying on this Court's dictum in Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd., Bhalwal (1971 S C M R 507) the learned Judge took the view that an order allowing amendment of the plaint was not "a case decided" within the meaning of section 115 of the Code of Civil Procedure and accordingly dismissed the petition as incompetent.

3. In support of the petition, learned counsel contended that the amendment of the plaint sought by the respondents under Order VI, rule 17, C. P. C. related to the relief of mesne profits which had already become time barred, the suit having been filed on 29‑8‑1970. It was argued that the case was covered by Article 65 of the Limitation Act or m the alternative Articles 109 and 110 were applicable which prescribed a limitation of three years. The contention is devoid of force, In the first instance it is well settled that mesne profits could be awarded by the Court in a fit case even without a specific prayer having been made in this regard and as such the question of limitation wholly irrelevant. Alternatively, the case would be covered by the residuary Article No. 120 which prescribes a limitation of six years. One fails to understand that if the respondents could file a separate suit why could not they seek amendment of the plaint. There is ample authority for the proposition that in order to avoid multiplicity of litigation amendments which do not take way a legal right already accrued to the defendant or change the complexion of suit may be allowed in suitable cases. But even otherwise. it would be still open to the petitioners to raise before the trial Court objection relating to limitation and court‑fee, etc. Taking the most favourable view for the petitioners that a revision would be maintainable as argued on the basis of this Court's judgment in Bashir Ahmad Khan v. Qaiser Ali Khan and 2 others (PLD1973SC507), we are absolutely in no manner of doubt that the amendment was rightly allowed by the trial Court whose order was unexceptionable and in any case should have been upheld by the High Court even on merits.

4. The petition is, therefore, dismissed. Petition dismissed.