1985 PLP 567 (MLD)

This Civil Revision under section 115 C.P.C. is directed against the order dated 13-2-1982 whereby the learned Additional District Judge allowed amendment of the plaint. This order was passed during the pendency of the appeal filed by the respondents against the judgment and decree dated 12-12-1979, passed by the learned Senior Civil Judge, Sheikhupura. Under the impugned order, the amendment has been allowed permitting the plaintiff-respondents to include the relief of possession in the declaratory suit with consequential relief filed by him.

2. Learned counsel, for the petitioners, who were defendants before the trial Court and respondents in the appeal, argued that the order allowing the amendment has been passed mechanically and without taking into consideration the observations and the findings of the learned trial Court respecting the amendment prayed for and the relief sought to be added in the plaint. In this connection reference was made to the following observations made under issue No. 2 by the learned trial Court: "The suit, even if amended, would be hit by the period of limitation and, as such, even if the plaintiffs were allowed to amend the plaint, it would be unnecessarily prolonging the final determination of the suit without any positive result." On the question of limitation the finding recorded under issue No. 1 was that the plaintiffs (respondents before me) could take the benefit of sections 2 and 3 of Act XXV of 1975 and they could have filed a suit till 31st of March, 1976 i.e. within one year from the date of the commencement of the Act which came into force on 31st of March, 1975. It was further observed that the present suit having been filed on 7-11-1977, was barred by time.

3. A perusal of the impugned order allowing amendment shows that the afore-noted observations and ,findings were not at all considered by the learned Additional District Judge. Learned counsel for the respondents submits that the appeal filed by the respondents is still pending before the learned Additional District Judge and the plea which is being urged by the learned counsel for the petitioners should better be raised before the Appellate Court while arguing the appeal. He adds that no revision is competent against an order allowing amendment. Reliance is placed on Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd. Bhalwal 1971 S C M R

507. Learned counsel for the petitioners, on the other hand, relied on M.G. Hassan and 4 others v. Sheikh Riazul Hassan and 5 others 1979 S C M R

15. In this case, it was observed that amendments which do not take away legal rights already accrued to the defendants nor change the complexion of the suit are to be allowed in order to avoid multiplicity of litigation in suitable cases. In the instant case, the plea of limitation available to the petitioners under Act XXV of 1975 remains available despite the amendment allowed to be made in the plaint and it is the case of the petitioners themselves that the said plea was upheld by the learned trial Court and in the appeal filed, the said finding of the learned Court is one of the moot points for decision in appeal.

4. I may, however, add that in the particular circumstances of the case, the appellate Court should have dealt with the observations of the trial Court before allowing the amendment in question. Anyhow as an order allowing amendment is not a case decided, the impugned order at this stage is not susceptible to interference in exercise of Revisional jurisdiction. The revision petition, therefore, fails and is dismissed with no order as to costs. The appeal pending before the learned Additional District Judge shall now be disposed of within three months as requested by the parties. The parties are directed to appear before the learned Additional District Judge on 3rd of March, 1984 . A.A. Revision dismissed.