1998 PLP 555 (CLC)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑ This appeal has berry directed against the order of the High Court, dated 21‑1‑1997, whereby accepting the revision petition filed by respondent No. 1, the amendment in the plaint was allowed.

2. The brief facts of the case are that Muhammad Ashraf, respondent No. 1, filed a declaratory suit in the Court of Sub‑Judge, Mirpur, alleging that he had purchased Plot No‑104/3‑B, measuring one Kanal, situate in Sector D‑5, New Mirpur Town, for a consideration of Rs.1,50,700 vide agreement, dated 4‑1‑1989. It was further alleged that out of the consideration, an amount of Rupees one lakh was paid to defendant No .l through defendant No.5 who was his attorney. Thus, he sought a decree in terms that he was owner of the aforesaid plot and appellants‑defendants may be restrained. from denying his title to the plot. After taking the necessary proceedings, the trial Court dismissed the suit. An appeal against the judgment and decree of the trial Court was pending before the District Judge, Mirpur, when an application for amendment of the plaint was filed on 13‑8‑1995 by the respondent, herein, seeking relief in form of a decree for the specific performance of the contract. The District Judge rejected the application but on revision to the High Court by the plaintiff respondent, Muhammad Ashraf, the amendment was allowed on payment of Rs.5,000.

3. We have heard the arguments and perused the record. Ch. Muhammad Azam Khan, Advocate, the learned counsel for the appellant, has argued that the High Court has committed an error in allowing amendment because the complexion of the suit would change; the learned counsel maintained that an amendment which changes the complexion or nature of a suit, cannot be allowed. The learned counsel has referred to a case reported as Ram Asra v. Allah Jawaya AIR 1931 Lah. 595, where the plaintiff who had filed a declaratory suit on the basis of an agreement to sell praying for a declaration of title sought the amendment for converting it into a suit for the specific performance of the contract. The amendment application was dismissed on the ground that as the same would entirely change the character of the suit and would introduce totally a different case, it could not be allowed.

4. In reply, Mr. Masood Khalid, Advocate, the learned counsel for the respondent, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the plaintiff initially based the claim for his ownership on the agreement to sell. Now, he seeks the amendment of his plaint so as to obtain a decree for the specific performance of a contract. However, his cause of action does not change because he sues on the same agreement to sell and merely the nature of relief is changed, the cause of action remains the same: Thus, the amendment was rightly allowed by the High Court.

5. We have given due consideration to the matter. The sole question in this case is as to whether the declaratory suit seeking the relief of declaration of title to the suit land on an agreement can be converted into a suit for specific performance of the same agreement by an amendment. It may be stated here that in the instant case, the claim of the plaintiff‑respondent was based on the agreement to sell. His suit was dismissed by the trial Court on the ground that the ownership cannot be transferred by virtue of agreement to sell until and unless the agreement is acted upon and title deed is executed in pursuance thereof. In other words, the suit filed by the plaintiff‑respondent was not properly framed; instead of filing the suit for specific performance of contract, he filed a suit seeking declaration of title to the plot. We are of the view that if the cause of action of the suit remains unchanged, then it cannot be said that the complexion of suit would become different. The "complexion" and "nature" of the suit would be different where the cause of action is changed. The mere fact that a different or additional relief is prayed for on the basis of the same cause of action as in the former suit, it cannot be said that the complexion of the suit would be changed. We are supported by a case reported as Mst. Ghulam Bibi v. Sarsa Khan PLD 1985 SC

345. The facts of the said case were that a declaratory suit seeking the declaration of ownership was filed on the basis of an unregistered exchange deed. The plaintiffs were non‑suited on the ground that title in the property was not transferred, as the exchange deed was not registered. It was observed that the plaintiffs should have filed a suit for the specific performance of the agreement instead of seeking a declaration of title on the basis of exchange deed. Subsequently, at the appellate stage, the plaintiffs filed an application for an amendment of the suit for converting their suit into one for the specific performance of the agreement. After considering various points including that of delay, the change of complexion of suit and cause of action, it was held that mere different relief on the basis of same cause of action would not change the character of the suit. Hence the amendment was allowed. In another case reported as Mst. Barkat Bibi v. Khushi Muhammad ' 1994 SCMR 2240 the amendment seeking to convert the suit for declaration into one for the specific performance of a contract was allowed by the Court below. A petition for leave to appeal was filed to the Supreme Court wherein it was observed that the amendment seeking relief of specific performance would not change the substance of the suit and, thus, the amendment was held to have been allowed correctly.

6. So far as the authority cited by the learned counsel for the appellant is concerned, we are constrained to observe that the perusal of the same would indicate that it was based on another case reported as Ma Shwe Mya v. Mating Mo Hnang AIR 1922 PC

249. A perusal of the latter would reveal that in that case a declaration was sought on the basis of an agreement, subsequently, an amendment was sought on the basis of a different agreement. Obviously, the facts of Privy Council's case, referred to above, were different. We are of the view that the learned Judges, who refused the amendment for specific performance of contract in case reported as Ram Asra v. Allah Jawaya AIR 1931 Lah. 595, referred to above, based their view of the aforesaid case of the Privy Council. But they do not appear to have correctly followed the principle laid down in Privy Council's case, because in Privy Council's case amendment was sought on a different agreement which changed the cause of action. Therefore, we respectfully disagree with the view of Lahore High Court. In the light of what has been stated above, finding no force in this appeal it is hereby dismissed. A.A./247/SC(AJ&K)?????????????????????????????????????????????????????????????? l dismissed.