1980 PLP 1702 (CLC)

Raza Hussain Shamsi for Respondents. Dates of hearing : 20th, 21st and 22nd October, 1979. This appeal challenges the validity of the order dated 15th December, 1979 passed by the learned Additional District Judge, Sheikhupura whereby he allowed the respondents to amend their written statement as to raise the plea of limitation to the effect that physical possession in this case was delivered on 11th March, 1971 vide Mutation No. 28 entered on the aforesaid date though attested on 15th of May, 1971. Suit for possession through pre-emption was filed on 13th of May, 1972 and was decreed on 1st October; 1974. It is admitted that during the pen dency of the suit before the trial Court plea with regard to non-maintain ability of the suit being barred by time was never raised. In para. 5 of the plaint it was averred that cause of action accrued to the plaintiff appellant on 15th of May, 1971 when the aforesaid mutation with regard to sale transaction in favour of the respondents was sanctioned. This plea was repelled by the respondents in the written statement by merely stating that no cause of action had accrued to the plaintiff-appellant. In para. 2 of the written statement it was however, admitted that the suit land was sold in favour of the respondent by Budba on 15th of May, 1971 vide mutation No.

28. According to the relevant revenue record containing the aforesaid mutation Budha son of Jewan vendor in this case has been shown to be in possession of the suit land. 1t has been shown to be self cultivated. The vendor and one of the vendees appeared before the Revenue Officer concerned on 11th March, 1971 and admitted the change of possession in favour of the vendees.

2. The pleadings of the parties gave rise to as many as 10 issues which are not necessary to be reproduced in this judgment as they are not relevant for the determination of the point involved in the appeal. The vendor Budha son of Jewan who sold the land in favour of the respon dents also executed receipt (Exh. D. 1) admitting the receipt of amount of Rs. 80.000 on 12th March, 1971. 1n this document he never admit ted delivery of possession of the suit land to the respondents-vendees on 11th March, 1971.

3. The judgment and decree awarded by the learned trial Court in favour of the preemptors, i.e. appellants was challenged in appeal before the learned Additional District Judge, Sheikhupura who vide his impugned order allowed the written statement to be amended as mentioned above with regard to limitation and remanded the case to the learned trial Court for framing a fresh issue. The only question for determination now is whether such amendment can be allowed in the given circumstances of the case. The learned lower appellate court has allowed the amendment of the written statement mainly on the ground of limitation point being legal which goes to the root of the case.

4. The learned counsel for the respondent has contended that there being sufficient material on record showing the suit prima facie to be barred by time amendment prayed for was rightly allowed by the learned lower appellate court. He has specifically referred to Mutation No. 28 sanctioned on 15th May, 1971 and the statement made by the parties before the Revenue Officer on 11th March, 1971 acknowledging the receipt of consideration amount as well as delivery of possession to the respon dents by vendor. According to the learned counsel possession of the suit land was actually delivered to the respondents before 11th March, 1971 when the aforesaid statement was made before the Revenue Officer. 1t is contended that if possession had not been delivered on or before 11th March, 1971 then this aspect would have been referred to by the respon dent on 15th March, 1971 when they appeared before the Revenue Officer concerned at the time when mutation was sanctioned. The parties admitted the factum of delivery of possession only once on 11th March, 1971. It is further contended that in view of the documentary evidence on record even in the absence of any objection having been taken by the respondents to the maintainability of the suit being barred by time it was the duty of the trial Court to take notice of the aforesaid material and decide the matter accordingly. Reliance has been placed by him upon Chaturbhujsahay v. Muhammad Habib and others ((1954) 54 1 C 36), Maqbool Ahmad and others v. Onkar Pratap Narain Singh and others (A I R 1938 P C 85), Mst. Moselle Ellias v. Khawaja Ahmad Said (P L D 1959 Kar. 760), Ahsan Ali and others v. District Judge and others (P L D 1969 S C 167), Haji Bahawal Khan v. Abdul Aziz and others (P L D 1971 B J 11) and .Mst. Wazir Begum v. Mst. Sardar Begum and 7 others (1979 C L C 72).

5. It was held in 1954 Indian Cases that where a respondent failed to object to the admission of an appeal by a lower Appellate Court under section 5 of the Limitation Act, the High Court was not precluded from considering the question of limitation. Even an agreement between the parties that the objection would not be raised, would not prevent the High Court from interfering on the point of limitation. In that case appeal was admitted subject to objection by the lower Appellate Court but no such objection was raised by the respondent at the time of hearing. However, irrespective of that it was held by the Patna High Court that question of limitation could be taken into consideration at the High Court level. The judgment and decree passed by the lower Appellate Court was set aside by the High Court mainly on the ground that the appeal itself was barred by time. In A I R 1935 P C it was held that section 3 of the Limitation Act was pre-emptory and the duty of the Court was to notice the provision and give effect to the same even though it was not referred to in the pleadings. Similar view was taken in P L D 1959 Karachi. In that case the respondent had not raised the plea of limita tion in his written statement. However, the learned Additional District Judge, noticed during the arguments that the suit filed by the appellant before the High Court was barred by time. He observed that he was entitled to consider the question of limitation even though it had not been raised as a defence in the first Court. This observation was affirmed by the High Court while deciding the appeal. P L D 1969 Supreme Court is not attracted to the facts of the present case as it relates to section 29(2) of the Limitation Act. It was, however, held in that case whether the plea of limitation was raised or not, it was the duty of the Settlement Court to notice the point of limitation and mere disposal of the appeal on merits would not be sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceedings was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits. In P L D 1971 B J it has been held by a Single Judge, of the Court that the language of the provision contained in Order VI, rule 17, C. P. C. shows that the scope of discretionary powers now conferred on the High Court has been considerably widened for the obvious reason of facilitat ing administration of substantial justice to the parties and avoiding multiplicity of litigation. In that case plea of adverse possession taken as defence in a suit for possession was allowed being not something unusual or extraordinary as amounting to setting up a new case or to cause prejudice or injustice to the opposite-party. In 1979 Civil Law Cases written statement was allowed to the amended incorporating the plea of limitation. Application in that case for amendment of the written statement was dismissed by the trial Court on the ground of being belated. Two connected civil suits out of which the civil revisions in that case arose were tiled on 4th November, 1974. Written statements in those suits were filed on 17th January, 1976. The suit was consolidated on 7th December, 1977 when issues were also framed. The plaintiffs closed their evidence in the affirmative on 17th April, 1978 and the case was adjourned for evidence of the defendants-petitioners before the High Court to 17th July, 1978 when application for amendment of the written statement was filed allowing the petitioners to raise the plea of the suit being barred by time. 1n that case the main contention of the respondents that the application was belated and was repelled in the given circumstances of the case, mentioned above. It was also noticed that Mutation No. 523 Exh. P. 4 in that case was entered on 18th February, 1973 though sanc tioned on 5th November, 1973. The recital while entering the mutation was to the effect that total consideration amount had been paid and possession delivered. So far as Mutation No. 28 dated 11th March, 1971 in the present case is concerned similar position obtains.

6. It is settled law that no amendment which would displace the plaintiff's suit or would introduce a new and wholly inconsistent case can be allowed despite the fact that powers of the trial Court to allow amend ment at any stage are fairly wide. One distinct cause of action cannot be substituted for another by an amendment of written pleas. According to law any amendment must be such, as is either raised in the pleadings or is consistent with the case as originally laid. Reliance in this respect can be placed upon Fazal Noor v. liibi Rani and others (A I R 1930 Lah. 278), Ghulam Muhammad v. Mehta Chandras (A I R 1927 Lah. 771), Ma Shwe Mya v. Maung Mo Hnoug (A I R 1922 P C 249), Ghulab and another v. Fazal Ilahi (P L D 1955 Lah. 26), Ata Muhammad v. Mst. Irshad Begum and others (P L D 1962 Lah. 803) and Secretary to Government (West Pakistan) (Now N.-W. F. P. Department of Agricultural and Forests), Peshawar and 4 others v. Kazi Abdul Kafrl (PL D l978 S C 242). In A I R 1930 Lahore according to the plea set up by the defendant property in dispute left by Noor Muhammad was ancestral and had been succeeded to by Fazal Din who had executed a will leaving his entire estate to the appellant before the High Court and both by custom and law she was entitled to inherent the property: In reply to the written statement the plaintiffs traversed that the parties were governed by Muslim law and further repudiated the pleas taken up in defence by the appellant. During the proceedings before the trial Court better state ment of the plaintiffs was recorded. They however, raised no new plea therein. The defendant-appellant in answer to the better statement filed a new written' statement claiming that her family was. governed by Muslim law and aforesaid Fazal Din had only succeeded to half of the property in suit while the other half belonged to the defendant-appellant as daughter of Nur Mukammad's brother. The amended written statement was refused to be accepted by the lower appellate Court on the ground that it contained inconsistent pleas and was liable to displace the case of the plaintiffs. This view was affirmed up to the High Court level holding that amendment under Order VI, rule 17, C. P. C. should always be allowed where such amendment facilitates a complete decision of the dispute between the parties but at the same time it should be refused if the plaintiff's suit would, be displaced by the proposed amendment or where the amendment would introduce new and inconsistent pleas and the application is made at a late stage.

7. In P L D 1955 Lahore the defendant while putting in his written statement pleaded that Mst. Jawahri inherited the property in dispute as widow of her husband but in a subsequent written statement the defen dant tooks up the plea that Mst. Jahawari succeeded to the property as moth-:r of her deceased sons and in the alternative she took possession of the property without any semblance of right and acquired a title by prescription over it. The subsequent written statement containing the aforesaid amendment was allowed to be placed on the file by the learned trial Court. The order passed in this behalf was challenged under sec 115, C. P. C. before the High Court. The aforesaid amendment was held to be inconsistent raising altogether a new plea and displacing the case of the plaintiff and as such was disallowed, by late justice S. A. Rehman as his lordship then was. It was held that an amendment which could dis place the plaintiff's suit or would introduce a new and wholly inconsistent case must be allowed despite the fact that the powers of the trial Court to allow amendment at any stage were fairly wide. It was further held that one distinct cause of action could not be substituted for another by an amendment of the written pleas. Any amendment sought to be raised must be such as is either raised in the pleadings or is inconsistent with the case as originally laid. Similar view was taken in P L D 1962 Lahore.

8. In P L D 1978 S C the plaintiff was allowed to amend his plaint that by way of consequential relief he might be granted money decree for 42,0(10 cft. of timber. The trial Court in view of the admission made by the defendant-Government had decreed the suit for 48305 cft. timber in spite of the fact that no application for amendment of the plaint claiming decree for so much timber had been submitted. It was held that by allowing the plaintiff to amend his plaint character of the suit should not be changed, rather such amendment should help in doing complete justice. Their Lordships of the Supreme Court while making such observation referred to Karamat Ali and another v. Muhammad Yunus Hajf and others (P L D 1963 S C 191) and Syed Akhlaque Hussain and another v. Water and Power Development Authority, Lahore (1977 S C M R 284). The learned counsel for the appellant has relied upon Dharam Singh v. Kirpal Singh and others (A I R 1923 Lah. 31), Thakar Singh v. Karam Singh and an other (A I R 1925 Lah. 165) Mudanna Virayya v. Mundanna Adenna and others (A I R 1930 P C 18), Matwali Khan v Shah Zaman and others (P L D 1965-A J&K 26), Municipal Committee of Shahdadpur v. Jurno Khan and another (P L D 1972 Kar: 507) and Pakistan and Divisional Superintendent Pakistan Railways, Rawalpindi v. Mr. Faiz Ahmad (N L R 1978 Civil 1186). in order to show that if objection had not been taken in the written statement with regard to the suit being barred by time then it should not be allowed to be raised during the bearing of the appeal and further delivery bf possession to the vendee on the day of sale of land would be of no avail against the pre emptor unless delivery of physical possession was shown. The mere delivery of symbolical proprietary possession would not be sufficient as recital in Mutation No, 28 of 11th March 1971 with regard to delivery of possession does not show whether physical possession was delivered .

10. In A I R 1923 Lahore and A I R 1925 Lahore it was held while deciding pre-emption cases that mere recital in the transfer deed with regard to delivery of possession would not mean that physical possession was actually delivered. It was further held that a formal recital as to the delivery of possession, which is to be found in every sale-deed would be a very weak piece of evidence even between the parties to the deed and it would be no evidence against the pre-emptor who is not bound by any such agreement. It has been further held that since law of pre-emption requires transfer of physical possession and requirements under section 30 of the pre-emption Act would not be satisfied by mere reporting to the Patwari that the vendor has relinquished possession and the vendee has taken over the same.

11. In all other cases referred to above relied upon by the learned counsel for the appellant point with regard to limitation against the plaintiff was not allowed to be taken up during the hearing of the appeal for the first time. Such point was not taken up in the written statement and if taken up no issue with regard to that was framed nor it was raised before the trial Court. According to the facts of these cases such point. was tried to be raised for the first time in appeal before the High Court which was disallowed to be raised. I am afraid the facts of such cases are different from the facts of the present case. No application for amend ment of the pleadings was ever made by any of the parties to the suit for permission to incorporate the plea of limitation and unless the pleadings were amended and issue was framed involving point of limitation the same could not be allowed to be raised at the time of hearing of appeal before the High Court. In the present case in the absence of any amendment in the pleadings incorporating the objection with regard to limitation such point could not be allowed to be raised at the time of hearing of appeal before the High Court. In the present case in the absence of any amendment in the pleadings incorporating the objection with regard to limitation such point could not be allowed to be raised by the lower Appellate Court. In order to overcome this difficulty application for amendment of the written statement was made by the respondents before the learned Additional District Judge which was allowed. It may be true as held in A I R 1923 Lahore and A I R 1925 Lahore that mere recital in the transfer deed or the report to Patwari with regard to transfer of possession may not be strong evidence showing transfer of physical possession. However, that aspect is not to be decided in the present proceedings. It will be decided by the learned trial Court after framing issue on the point and after recording evidence of the parties. According to law cause of action in pre-emption matters will accrue from the date of sale of; property as well as from the date of transfer of physical possession. It will be for the respective parties to show as to when physical possession of the suit land was transferred irrespective of the recital made in Mutation No. 28 dated 11th March, 1971.

12. As mentioned above in para. 2 of the written statement the; respondents admitted the sale transaction in their favour by Budha son of Jewan the vendor on the basis of Mutation No. 28 sanctioned on 15th May, 1971. They however, have not admitted in this para. that physical possession was not transferred on the date when mutation was sanctioned. Further in para. 5 of the written statement they have denied the contents of para. 5 of the plaint with regard to cause of action. They have stated that no cause of May, 1971 when mutation of sale was sanctioned. In their application for amendment of the written statement they have stated that they have never admitted in their written statement that cause of action accrued to the plaintiff-appellants on 15th May, 1971. Since no issue was framed in relation thereto, therefore, no evidence could be led on that point. It means that in view of their averments in paras. 2 and 5 of the written statement amendment sought for and allowed by the learned lower Appellate Court would not be inconsistent with the pleas with regard to limitation period raised by the defendants-respondents. Such amendment will not displace the case of the plaintiffs as the point involved has already been raised in the written statement. It will enable the Court to decide the matter completely and effectively which is the basic requirement of law.

13. In the circumstances the appeal having no force is hereby dis missed and the judgment passed by the lower Appellate Court is upheld. In view of the peculiar circumstances of the case the parties are left to bear their own costs. M. Y. M. Appeal dismissed.