2013 PLP 1810 (CLC)

ABDUS SATTAR ASGHAR, J.

This Civil Revision under section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 10-6-2013 passed by learned Additional District Judge Lahore.

2. Succinctly facts leading to this Civil Revision are that petitioner lodged a suit for declaration etc. alleging that he is real owner of House No.19 Umar Colony Brick-kiln No.1 Green Town Tehsil and District Lahore and that Rubina Kamal/respondent is merely Benamidar. The suit was resisted by the respondent by filing written statement with the contentions that she purchased the suit property from her own pocket by working at Umar Brick Bhatta Khasht and is in lawful possession thereof. After framing of issues petitioner produced his ocular evidence. The case was at the stage of petitioner's documentary evidence when respondent lodged an application for permission to amend the written statement to substitute the words "working at Umar Brick Bhatta Khasht" with the words of "her owned sewing school under the name and style of Rabia Sewing School". The application was resisted by the petitioner. The learned Civil Judge Lahore dismissed respondent's application vide order date 28-11-2012. Respondent being aggrieved of the said order is assailed the same through appeal before the learned Additional District Judge Lahore which was accepted while setting aside the order of learned Civil Judge Lahore and the application of the respondent for amendment was allowed, vide order dated 10-6-2013, in the following manner:

"The appellant/defendant only intends to amend her profession. The real controversy between the parties is regarding the property that whether the appellant is Benami owner or not. This question of Benami would surely and thoroughly be thrashed during the course of trial to be conducted by the learned trial Court. The change of profession would not affect the real controversy to be resolved by the learned trial Court. Hence, the appeal in hand is accepted subject to payment of cost of Rs.2000/-."

3. It is argued by the learned counsel for the petitioner that the proposed amendment allowed in favour of the respondent amounts to set up a new defence not permissible in the eye of law; that the impugned order passed by learned first appellate court being contrary to all canons of law and justice tantamounts to improper exercise of jurisdiction with material irregularity therefore is liable to set aside.

4. It is an established principle of law that for determination of Benami transaction it is the duty of the party who raises such plea to produce legal, relevant and unimpeachable evidence. In such cases character of transaction is to be ascertained by the court by determining the intentions of the parties at relevant time to be gathered from all surrounding circumstances i.e. relationship of the parties, motive, transaction and any other subsequent conduct. Source and payment of consideration amount, custody of the original title documents and actual possession are also relevant and material facts for determination of the nature of such transaction.

5. Record reveals that respondent is ex-wife of the petitioner having four children out of their wedlock. In the instant case respondent has yet to adduce her evidence. Respondent's contention in the written statement is that she had purchased the suit property from her own pocket, therefore sought for amendment regarding source of income is not likely to change the nature of her defence. It is an established principle of law that an amendment necessary to reach safe conclusion of the controversy between the parties and not likely to cause any serious prejudice to the case of the rival party, should be allowed liberally for true administration of justice.

6. In this case the petitioner has not been able to point out any material prejudice likely to be caused to his case in allowing the proposed amendment. The learned trial Court therefore was in legal error rejecting the respondent's application for proposed amendment. The learned first appellate court appreciating the intent of the procedural law as envisaged under Order VI, Rule 17 read with section 151 of the Code of Civil Procedure, 1908 and the facts of the case has rightly accepted the appeal. I do not find any jurisdictional error, factual or legal infirmity in the impugned order passed by learned Additional District Judge Lahore. Petitioner therefore has no case to invoke the revisional jurisdiction of this Court.

7. For the above reasons this revision petition having no merit is dismissed in limine. SAK/S-85/L Revision dismissed.