2007 PLP 8 (CLC)

JAWWAD S. KHAWAJA, J.

Ch. Naveed Hussain petitioner/plaintiff impugns the appellate decree dated 3-12-2003 passed by the learned Additional District Judge, Lahore.

2. The petitioner is the son of Ashiq Hussain. It is his case that Shop No.51 in Sabzi Mandi belonged to the said Ashiq Hussain, and as such, he being legal heir of the said Ashiq Hussain, is entitled to a declaration of his proprietary interest in the said shop.

3. Ch. Shafique Hussain was the full brother of the petitioner. Shafique Hussain has died. Four of his L.Rs. who are respondents Nos.13, 14, 16 and 17 in this petition, filed a separate suit claiming that Ashiq Hussain was merely a Benamidar whereas the real and beneficial interest of disputed Shop No.51 was vested in Ch. Shafique Hussain. The suit filed by the petitioner and the suit filed by the above mentioned L.Rs. of Ch. Shafique Hussain were consolidated. By means of a common judgment dated 6-7-2002, the petitioner's suit was' decreed, while the suit filed by the L.Rs. of Ch. Shafique Hussain was dismissed.

4. The L.Rs. of Shafique Hussain preferred two appeals to assail the decrees of the learned trial Court. The learned appellate Court has dismissed both appeals. However, the appellate Court has also non-suited the petitioner on the ground that he had sought a simple declaration without claiming possession by way of consequential relief. Learned counsel states that in fact consequential relief was sought praying that the name of the petitioner Ch. Naveed Hussain be ordered to be entered in the record maintained by the L.D.A. (respondent No.1). In these circumstances, it is agued that the suit filed by the petitioner could not have been dismissed.

5. In addition and by way of abundant caution, learned counsel states that he has filed an application to amend the prayer in his plaint to seek possession of his share of the disputed shop. Learned counsel has also referred to the case titled Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985. SC 345 to argue that the petitioner was entitled to seek amendment in the prayer clause at any stage and in accordance with the said precedent, the Court was also obliged to direct the petitioner to amend his plaint with the object of seeking possession by way of consequential relief.

6. The L.Rs. of Shafique Hussain are the only contesting respondents and are represented by counsel. Learned counsel for these L.Rs. of Shafique Hussain has attempted to reopen the factual issue concurrently decided by the two Courts below as to the exclusive claim asserted by Shafique Hussain over the disputed shop. I have examined the evidence with the assistance of both learned counsel and find that the conclusion arrived at by the Courts below that the shop was owned by Ashiq Hussain and that Shafique Hussain had no exclusive beneficial interest therein is consistent with the record. This concurrent finding, therefore, does not require interference.

7. As to the argument of learned counsel for the petitioner that he could not have been non-suited simply because he had not prayed for possession of the disputed property through partition, this submission is well-founded and is supported by the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others cited by him it is also clear that the controversy between the parties essentially related to the denial of the petitioner's interest by Shafique Hussain and his L.Rs. The prayer is only consequential to the determination of the aforesaid controversy which, as noted above, has been settled by the Courts below.

8. The petitioner has also filed an application under Order VI, rule 17, C.P.C. (C.M. 1/C of 2004) praying that he be allowed to amend the plaint so as to incorporate a prayer for possession of the disputed shop through partition. Bearing in mind the dictum of the Honourable Supreme Court in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (supra) this petition is allowed and the petitioner is permitted to amend his plaint as prayed for in this petition.

9. As a result of the foregoing the petitioner's suit is allowed to be converted into a suit for possession through partition. He may file his amended plaint before the learned trial Court. The suit is remanded to the learned trial Court for proceeding in the matter with the object of deciding the same as a partition suit.

10. This is an old matter. The parties represented before me are directed to appear before the learned Senior Civil Judge, Lahore, on 1-3-2005 whereafter the learned Senior Civil Judge shall either decide the matter himself or mark the same to a competent Civil Court for decision. S.M.B./N-89/L Case remanded.