2015 PLP 794 (CLC)

MRS. SYEDA TAHIRA SAFDAR, J.

The petitioners assailed judgment dated 25th February, 2009 of Majlis-e-Shoora, Kalat whereby the judgment and decree dated 31st March, 2005 of Qazi Kalat was upheld and their appeal was declined.

2. The brief facts, relevant for determination of the instant petition, are that a suit for declaration of title consequent thereto rectification of the entries in the revenue record with permanent injunction was filed by Shah Bibi and Gull Bibi, present respondents Nos.1 and

2. They claimed themselves to be the owners of the landed property, subject matter of the suit, which was asserted to be originally owned by their paternal grandfather namely Ghazi Khan, and devolved on them (plaintiffs/ respondents Nos.1 and 2) through inheritance. It was their case that due to drought in the area they were compelled to leave the area and to settle in Jacobabad. Due to their migration the process of settlement in the area was not in their knowledge, and taking benefit of their absence from the area defendant Nos.1 to 15 (present petitioners) in collusion with the defendant No.17 managed to enter the suit property in their names. The plaintiffs (respondents Nos.1 and 2) claimed ownership with possession of the suit property despite the adverse entries in the revenue record. The cause of action was shown to be accrued on 12th July, 2003 when they learnt about the adverse entry in the revenue record, and also when the defendants started the act of interference in their possession. Defendants Nos.1 to 15, (petitioners) denied the title of the plaintiffs (respondents Nos.1 and 2) with the plea that the suit property was purchased by their predecessors, and they were in its possession since time of its purchase in their own rights. Several documents were relied asserted to be executed at the time of the purchase of the suit property between their predecessor and the alleged sellers.

3. Issues arising of the pleadings of the parties were framed and both the parties produced their respective evidence. The trial court vide judgment dated 28th April, 2004 dismissed the suit for want of merit. The appellate court vide judgment dated 2nd September, 2004 on appeal set aside the judgment of the trial court, and the case was remanded for a decision afresh. The trial court vide judgment dated 31st March, 2005 decreed the suit in the terms as prayed for, while the appeal preferred against the judgment was dismissed vide judgment dated 30th June, 2005. The petitioners aggrieved with the judgments, approached this court for revision of the orders. This court vide order dated 5th September, 2008 remanded the matter to the appellate court, and allowed the parties to produce the relevant documents relied in the pleadings, and the case was directed to be decided afresh on completion of the process. The appellate court abided by the order and on completion of the process vide judgment dated 25th February, 2009 found the appeal without any substance, thus declined the relief. The subsistence of the grievance resulted in filing of the instant petition.

4. Respondents Nos.1 and 2 (plaintiffs) were before the trial court to establish a clear title in their favour in respect of the land, subject matter of the suit, and on basis of the declaration, rectification of the entries in the revenue record was the main prayer in the suit. In addition an order to restrain the defendants Nos.1 to 15 (petitioners) from interfering in the suit land permanently was the third prayer. Defendants Nos.1 to 15, (petitioners) denied the claim in the suit and appeared with the plea that the possession of the land, subject-matter of the suit was with them as owners and the entries were correctly recorded in their favour in the revenue record since decades. The suit was for declaration and permanent injunction with no prayer for possession, as the plaintiffs claimed themselves to be in possession. It was noted that plaintiff No.1 Shah Bibi (respondent No.1) appeared before the trial court on 23rd February, 2004, and recorded her statement, described as additional statement, thereby repeated her claim of ownership of the land, subject matter of the suit and stated: In addition one Muhammad Hassan appeared as attorney for the plaintiffs (respondents Nos.1 and 2) and recorded his statement, whereby admitted presence of the structure in shape of houses, and boring for a tub-well on the suit land, which belongs to the defendants (petitioners).

5. A specific plea of in possession of the suit land with denial of the title and possession of the plaintiffs was taken by the defendants Nos.1 to 15 (petitioners) in their written statement, despite the same no issue was framed by the trial court. Para No.8 of the plaint was with the plea of un-authorized interference on part of the defendants, while in reply thereof a specific plea of possession was taken by the replying defendants (petitioners), demands framing of a proper issue to the effect, while the plaintiffs were required to amend their plaint to add the claim of possession, but it was not done at the relevant time. This court while entertaining the petition in hand, on 14th April, 2011 asked from the learned counsel for the respondents Nos.1 and 2 that how a suit for mere declaration without seeking the relief for possession was maintainable, who sought time for proper instructions to amend the plaint. After lapse of considerable time on 1st December, 2014 an application CMA No.1242 of 2014 was filed for amendment of the plaint within the purview of Order VI, Rule 17, Civil Procedure Code (C.P.C.).

6. C.M.A. No.1242 of 2014: The instant application was filed for the purpose to amend the plaint and to add the claim of possession, with further amendments in valuation and prayer clauses of the plaint, with permission to affix the requisite court fee. This application was replied and several objections were raised on its maintainability. It was suggested that the applicants (respondents Nos.1 and 2) might have withdrawn their plaint and file a fresh suit for the purpose subject to all just exceptions. The learned counsel for the parties argued their case on merit along with the application filed for the purpose of amendment in the plaint. The matter was riped for final decision, but keeping in view the relief claimed in the application, it deemed appropriate to decide the application before findings are recorded on the main revision petition, as it would directly effect the fate of the instant petition.

7. Respondents Nos.1 and 2 (plaintiffs) sought amendment of the plaint to the extent of possession of the suit property, and as a result thereof amendment to the extent of value of the suit and payment of the requisite court fee. Order VI, Rule 17, C.P.C. is clear enough to deal with the situation. It adequately empowers a court to allow, either of the parties, to alter or amend the pleadings at any stage of the proceedings, subject to the amendment proposed is necessary for the purpose of determining the real question of controversy between the parties. The Rule consists of two parts, first part is with a discretion, while the second part is mandatory in nature. It is within discretion of the court, while the matter is before it, to allow alteration or amendment of the pleadings if it deemed necessary. It is further in its discretion to determine the manner and the terms for the purpose, suitable and just in circumstances of each case. The Rule further mandated that if the amendment is necessary for the purpose of determination of the real controversy between the parties, it should be allowed subject to the fundamental character of the suit should not be changed. In case in hand the plaintiffs (respondents Nos.1 and 2) applied this court for amendment of the plaint to add the relief of possession, the matter had already been decided by the trial court and by the appellate court in appeal, at present the parties are before this court in revision. Rule 17 of Order VI, C.P.C. empowered the court to allow the amendment in the pleadings, but neither the term Court nor the proceedings defined therein. Both the terms are treated in broader meanings, thus it is now a settled principle that the available power is not restricted with the trial court, during pendency of the suit, rather the courts sitting in appeal or revision can exercise the power available under the Rule subject to the conditions and restrictions provided therein.

8. In view of the established principle an amendment at any stage of the proceedings would include the trial as well as the appellate or revisional stage, thus empower a court either trial, appellate or revisional to deal with the matter. In addition if the court arrives to the conclusion that the amendment is necessary to determine the real controversy between the parties, it mandated to allow the request. Further delay in applying for the amendment would not be fatal in each case. Rather the relief ancillary to the relief sought originally have to be allowed subject to the fact that allowed amendment must not change the basic character of the suit.

9. Section 42 of the Specific Relief Act, 1877 place a bar on mere declaration, whereby the plaintiff being able to seek further relief. The Hon'ble Supreme Court while dealing with the issue laid down the basic principle for the purpose in case Ghulam Bibi v. Sarsa Khan reported in PLD 1995 SC

351. It was held that:

"Be that as it may, the learned Judge himself observed and rightly, so that the delay alone in applying for the amendment cannot be a determining factor, for deciding an application under Order VI, rule 17, C.P.C. The use of the expression "at any stage of the proceeding" in rule 17 is not without significance. The word "proceedings" has been interpreted by this Court in a liberal manner so as to give a proper scope to the rule in accord with its purpose, as including the appellate stage and that too up to the Supreme Court. The foregoing interpretation is also in accord with the mandatory language used in rule 17 to the effect that "all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy .." Therefore, once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment. What has been stated above is, however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed."

10. Keeping in view the principle as determined by the Hon'ble Supreme Court, if a court, arrives to a conclusion that amendment is necessary for the purpose of determination of the real case between the parties mandated to allow the amendment. In case in hand in view of section 42 of the Specific Relief Act, 1877, the case of the plaintiffs would fail in absence of the relief for possession, as it is ancillary to the relief sought originally in the suit. In addition there was delay in filing of the application for amendment as specific plea was taken in the written statement to the same effect, and petitioner No.1 and their attorney when appeared before the trial court were in knowledge of the fact that the possession was with the other party. Despite the same they failed to move an application for the purpose in time to add the relief of possession. As it is held in the preceding para that delay in applying for amendment is no ground to refuse the amendment, rather determination for the real controversy between the parties is the main consideration. The further caution needed to be taken that the nature of the suit must not be changed due to the amendment. In case in hand the prayer was for declaration of the title, and on basis thereof rectification of the entries in the Revenue record with an order of restraint, thus, the addition of the relief for possession would have no effect on basic structure of the case, nor its nature would be changed. Rather, the proposed amendment is necessary for final determination of the controversy between the parties.

11. In view of the above discussion the application is hereby allowed. In view thereof it would not be appropriate to record findings on merit of the case. It is ordered that the plaint is allowed to be amended to the extent of possession subject to payment of Rs.15,000 (Rupees fifteen thousand only), as cost of the amendment to be paid to the contesting defendants i.e. present petitioners. The case is remanded to the trial court with direction that after amendment of the plaint, the defendants shall have the opportunity to amend their written statements to the effect, and a proper issue be framed to the extent of the possession. On amendment of the pleadings the parties be allowed to produce their evidence restricted to the newly framed issue. While the trial court is directed to decide the matter on basis of the evidence already on the record in addition to the evidence produced after amendment of the pleadings, preferably within a period of six months from receipt of this order as the matter pertains to the year 2003. The petition is decided in the above terms, with costs. AG/26/Bal Order accordingly.