2022 PLP 344 (CLC)

RASHIDA ASAD, J.

This appeal is directed against the order dated 10th December 2013 passed on C.M.A. No. 7649/12, filed by the appellant in a Recovery Suit bearing No.1383/2008 (Islamic Education Trust v. Province of Sindh), whereby, the learned Single Judge of this Court was pleased to dismiss the said application, for discarding the written statement, filed by the respondent/defendant, and restrict the reply to the effect of amended paragraph.

2. The relevant facts for disposal of the instant Appeal are that in pursuance of amended plaint, the Province of Sindh through Secretary Education Department was arrayed in place of City District Government Karachi (defunct) and also filed amended plaint adding just paragraph 27-A. Accordingly, the Province of Sindh filed its written statement afresh dealing with all the paragraphs of the plaint. Whereas, the contention of the appellant is that the appellant only amended/added paragraph 27-A, hence, the respondent/Province of Sindh should have been restricted to reply the newly added paragraph only and not for the entire plaint and as such moved aforesaid application for discarding the contents and averments of the rest of the written statement. Operative part of the impugned order is as under:- "I have heard learned counsel for the plaintiff as well as learned AAG and perused the record. In the instant case the question is not the one which is involved in the case of Jane Margrat William (supra) referred by learned counsel for the plaintiff. The issue involved in this suit is that since the Province of Sindh has been added/ replaced instead of CDGK which has now taken over the charge and control in terms of 18th Amendment in the Constitution and thus it has the right and entitlement to file appropriate reply in accordance with the instructions given by the Province of Sindh. As far as the written statement filed by the CDGK is concerned the Government of Sindh has neither devolved nor adopted such instructions and as such they are entitled to file proper reply in respect of entire plaint which they have done in terms of the written statement filed on 02.08.2012. Accordingly, the question raised by learned counsel for the plaintiff is being clarified and the application has no merit and is therefore dismissed. However, the question that at the relevant time CDGK were in control of the department and have accordingly acted under the law and filed written statement shall be considered subsequently at the time of conclusion of case."

3. At the very outset learned counsel for the appellant while opposing the allowability of additional paragraphs of the written statement, filed by the Province of Sindh, has referred observations made in order dated 14.05.2013 passed by Divisional Bench of this Court in C.P.No.D-96 of 2001 by observing as under: "....Another Suit No.1383/2008 filed by the Official Assignee is pending for the recovery of arrears against CDGK on whom the education devolved. Mr. Adnan Karim learned AAG informs that since education subject once again has reverted back to the Government of Sindh, they have been added as a party in the Suit, therefore, contention of Mr. Adnan Karim learned AAG that they are necessary party and they were not added before the rent controller, prima facie we are tentatively of the opinion that such assertion is merely to buy time and nothing more as at the relevant time the concerned college which was the responsibility of CDGK and Government of Sindh to run and manage the affairs of the education were before the Court. Devolution/succession under the law will not affect the merits or right and interest of the successors and or predecessors of any entity. As a last opportunity the matter is being adjourned at the behest of Mr. Adnan Karim learned AAG and it is made clear that no further adjournment on behalf of Government of Sindh would be entertained. Time is granted and prima facie no right, title or interest vest in the Government of Sindh as held in the first mentioned order passed by this Court and as maintained by the Hon'ble Supreme Court." (under line emphasis ours)

4. He has further submitted that admissions made in the written statement filed by CDGK cannot be nullified by allowing new or inconsistent case as set up by the substituted respondent. Per learned counsel substituted respondent was obliged to confine amendments in written statement to corresponding amendment i.e. para 27-A made in amended plaint and could not introduce omnibus changes in original written statement without leave of the Court, when the issues were framed on 31.05.2010 and the evidence of the appellant has been concluded on 08.10.2011 and the case was set for recording of the evidence of the respondent, therefore, the impugned order is arbitrary, capricious, unlawful and in violation of settled principles of law, ignoring the orders passed by Divisional Bench of this Court in C.P.No.D-96 of 2001.

5. Conversely, learned AAG while supporting the impugned order, contended that the Province of Sindh has nothing to do with the stance taken by the CDGK, being distinct and separate entity.

6. We have heard the learned counsel for the parties and perused the record. Under Order VI, Rule 17, C.P.C., the Court is mandated to grant amendment of pleadings at any stage of the proceedings. In the present case, such amendment was allowed on 30.04.2012, whereby the appellant/plaintiff was allowed to file amended plaint. In compliance of the above order, on 02.05.2012, the appellant/plaintiff filed the amended plaint. On 26.06.2012, the Court had passed the order that "learned AAG stated before the Court that he would seek instructions with regard to adoption of the written statement that was filed earlier or otherwise." Thereafter, on 10.07.2012, learned AAG sought two weeks' time to file written statement although this request was opposed by the other side yet in the interest of justice, three weeks' time was granted for filing written statement. The written statement was filed on 02.08.2012 which according to the appellant consisted of inconsistent pleas as compared to the earlier written statement filed by the CDGK, therefore, the appellant moved an application for discarding written statement which was filed by the Government of Sindh. Therefore, the Court passed an order on 22.11.2012 to consider the issue whether amended written statement as filed on behalf of the Province, goes beyond the amendment made in the plaint, which amendment was necessitated only on account of change of name of one of the parties.

7. Perusal of the written statement filed by the Province of Sindh dated 15.08.2012 shows that certain objections were raised, which undoubtedly go beyond the scope of the plaint in as much as the newly added party i.e. Province of Sindh has challenged the relationship of landlord and tenant beside raising other important jurisdictional issues. This issue of relationship has already been decided by the Rent Controller conclusively. Therefore, these issues raised in the written statement filed by the Province of Sindh are alien to the matter pending before the Court. In any case the contents of the written statement may be considered at the time of final arguments, if allowed by law. Therefore, in our opinion it is not necessary to frame amended issues. Furthermore, the proceedings which have already been taken place including recording of the evidence of the plaintiff in presence of the then relevant party cannot be just brushed aside in view of the newly filed written statement which if takes place to replace the earlier filed written statement, shall necessitate de novo proceedings which shall amount of abuse of process of law and court and thus it cannot be allowed ahead as emerges as consequence of the impugned order.

8. In view of the above, the appeal is allowed and the impugned order dated 10-12-2013 is set aside. Consequently, C.M.A. No.7649/12 is allowed. SA/I-13/Sindh Appeal allowed.