2004 PLP 1174 (CLD)

CH. IJAZ AHMAD, J.

We intend to decide following appeals R.F.As. Nos.155, 156 of 1999 and C.Ms. Nos.1-C of 2002 filed by the respondent by one consolidated order, having similar facts and law.

2. The brief facts out of which the aforesaid appeals arise are that the respondents filed suit for recovery against the appellants amounting to Rs.1,88,70,745 and Rs.90,41,407 respectively. Appellants filed applications for leave to defend and consequently suits were decreed by the Banking Court vide impugned judgments dated 22-2-1999.

3. Appellants being aggrieved filed the aforesaid appeals.

4. The learned counsel of the appellants submits that the appellants are only liable to pay the amount mentioned in the documents which are at pages 18 to 40 and not beyond the said amount. He further submits that the respondents are not entitled to mark-up over" mark-up and beyond the period prescribed in the documents qua the original loan facility secured by the appellants, therefore, Banking Court erred in law to pass the impugned judgments/ decrees as claimed by the respondents without application of mind and without proper scrutinizing the statements of accounts. According to him, statements of accounts clearly show that respondent has calculated an amount in such a type that the respondent has charged the mark-up over mark-up from the appellants, therefore, impugned judgments of the Banking Court are not sustainable in the eye of law. In support of his contentions, learned counsel for the appellants relied upon following judgments Citibank N.A.A. Banking Company through Attorney v. Riaz Ahmad 2000 CLC 847; United Bank Ltd. v. Central Cotton Mills Ltd. and others 1999 CLC 1374; Abdul Ghani v. Abdul Ghafoor and others 1993 MLD 1643; Citibank v. Tariq Mohsin Siddiqi and others PLD 1999 Karachi 196; Habib Bank Ltd. v. Messrs Shields (Private) Limited through Managing Director and 3 others 1999 CLC 1643; N.D.F.C. v. Anwar Zaib White Cement Ltd. and others 1999 MLD 1888. He further submits that Banking Court passed the impugned decrees against the appellant without adverting to the heading of the recovery suits and prayer clauses which are at variance in both the suits. He further urges that the impugned judgments and decrees are not in accordance with sale agreement which are in violation of clause (2-d) and clause (4).

5. The learned counsel of the respondent submits that the respondent has filed C.M. No. 1-C of 2002 in both the appeals under Order 6 Rule 17, C.P.C. for the additional claim, therefore,- C.M. No.1-C of 2002 be decided first instead of deciding the appeals on merits. He submits that in view of the mandate of Order 6, Rule 17, C.P.C., this Court has ample power to allow the respondent to amend the plaint. The learned counsel of the respondent submits that although it is mentioned in Order 6, Rule 17 of C.P.C. that amendment may he allowed at any stage of the proceedings but the Superior Courts has specifically laid down certain parameters qua allowing the amendment at an appellate stage. The appellants have not filed application for amendment of the plaint before the Banking Court in time before the decrees were passed against the appellants and thereafter respondent did not file applications before this Court well in time, the vested right by afflux of time have accrued to the appellants, therefore, applications are liable to be dismissed.

6. Syed Kaleem Khursheed, Senior Advocate of Supreme Court of Pakistan is present in the Court, who is directed to assist this Court as amicus curiae. He submits that according to the command of Order 6, Rule 17, C. P. C. this Court can allow the amendment in the pleadings at any stage. In support of his contention, he relied upon the following judgments. Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC

345. Sharif and others v. Muhammad Amir 1985 SCMR 1214. Muhammad Zahoor and others v. Lal Muhammad and 2 others 1988 SCMR

322. Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR

970. Mir Mashar v. Azim PLD 1993 SC

332. Qamar Din v. Muhammad PLD 2001 SC

518. Ghulam Abbas v. Muhammad Ashraf 1993 SCMR 2289. On the basis of the aforesaid judgments, he submits in the last case, the plaintiff failed to mention in a pre-emption suit that plaintiff is also owner in the estate. He filed an application before the Appellate Court which was dismissed by the Appellate Court as well as by this Court i.e. High Court concerned but the amendment was allowed by the Honourable Supreme Court as laid down in the cited judgment mentioned above i.e. 1993 SCMR 2289. He further submits that Superior Courts has laid down certain parameters not to allow the amendment in the pleadings on account of negligence of the parties who claimed amendment in the pleadings. In support of his contention, he relied upon the following judgments:

Ismail and 5 others v. Mst. Umar Bibi and 12 others 1982 SCMR

871. Malik Riaz Ahmad Khan v. Inayat Ullah Qureshi 1989 MLD

244. Murchand v. Smt. Indra and others PLD 1985 Karachi

362. Atlantic Steamer Supply Co. v. M.V. Titsee PLD 1993 SC

88. Qaid Jauhar and others v. Mst. Hajiani Hajra Bai and another PLD 2002 Karachi

100. Chaudhry Muhammad Sidique and others v. Mian Abdul Haq 1991 MLD 1479. Mst. Imam Hussain v. Sher Ali Shah and others 1991 SCMR 2293. Shahsawar (Represented by his heirs) v. Syed Najamul Hassan etc. 1981 SCMR

730. Syed Ghulam Abbas v. The Chief Administrator, Auqaf 1981 SCMR

753. Bahoo Khan v. Municipal Committee Murree and another 1969 SCMR

29. C.J. Leach and Co. Ltd. and another v. MS Jardine Skinner and Co. PLD 1957 SC (India)

307. Raja Sher Ahmad v. Muhammad Abdullah and others 1991 SCMR

277. Syed Shaukat Ali Shah v. Addl. District Judge camp at Shakargarh PLD 2003 Lahore

192. Bhagwanjee Morajee v. M.L. Big Chemical Pvt. Ltd. PLD 1948 Privy Council 73.

7. We have given our anxious consideration to the contentions of the learned counsel of the parties, amicus curiae and perused the record ourselves.

8. We intend to decide C.M. No.1-C of 2002 in both the appeals first. In case, we accept the applications, then there is no need to give any finding raised by the learned counsel of the parties on merits in the main appeals. It is proper and appropriate to reproduce proposed amendment in the plaint to resolve the controversy between the parties:-- (i) "That the respondent/plaintiff/petitioner filed a suit against the appellant/ defendants for the recovery of Rs.18,817,745 as 17-3-1998 before Modarba Tribunal, Punjab, Lahore inclusive of liquidated damages and penal charges. (ii) That the respondent/plaintiff/petitioner by abandoning the claim of liquidated damages and penal charges by substituting the claim of cost of funds based on average rate of return which results in reducing the suit amount from Rs.18,817,745 to Rs.15,411,885 as on 16-3-1998 with future cost of funds based on average rate of return from the date of institution of suit i.e. 17-3-1998 till recovery. (iii) That the respondent/plaintiff/petitioner therefore, seeks to make the following amendments:

(a) (After title of the suit) Suit for the recovery of Rs.15,411,885 (Rupees fifteen million four hundred eleven thousand eight hundred eighty five) as on 16-3-1998. (b) (Para. 10 of plaint) That the defendant is liable to pay a sum of Rs.15,411,885 as detailed below:-- Morabaha Amount 10,000,00 Morabaha Profit 2,669,400 Cost of funds based on 2,422,485 Average rate of return Processing fee, w/tax and Cost of funds based on 3,20,000 Total 15,411,885 (c) (Para. 14 of plaint) That the value of suit for the purpose of jurisdiction and court-fee is Rs.15,411,885 on which court-fee of Rs.15,000 is affixed. (d) The prayer to be substituted as under:

It is, therefore, prayed that a decree for a sum of Rs.15,411,885 alongwith cost of suit and future cost of funds on the basis of average rate of return be passed in favour of the plaintiff and against the defendant ordering the realization of the. decretal amount by way of sale of pledged shares and if the sale proceeds are not sufficient to recover the decretal amount, then by sale of other properties and assets of the defendant. It is further prayed that any other relief fit in the circumstances of the case may please be awarded." From bare reading of the contents of the application clearly reveal that it does not change the nature of the suit at all. In fact, the applicant/respondent-Bank through these applications claim additional relief which is not alien to the proceedings in view of the documents on record before the Banking Court, therefore, proposed amendment is just which is necessary for the purpose of determing the real question in controversy between the parties in view of the law as settled by the Honourable Supreme Court in Keramat Ali and another v. Muhammad Yunus Haji and others PLD 1963 SC

191. The relevant observation is reproduced here as under:-- "It only brings in an additional claim which the appellants should have asked for in the suit. Ever since 1937, the auction purchasers of the properties in dispute have consistently been endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for khas possession and to pay the additional court-fees as in a suit for possession but upon the condition that they should pay to the respondents appearing in this appeal their costs both in this Court as well as in the Court below as a condition precedent." The aforesaid view was reaffirmed by the Honourable Supreme Court after discussing all the case-law on the subject in Mst. Ghulam Bibi PLD 1985 SC 345 supra as mentioned above, through this amendment, the nature of the suits have not been changed, therefore, keeping in view the law laid down by the Honourable Supreme Court in the aforesaid judgment, applications are allowed. Consequently we remand the suits to the trial Court for enabling respondent-Bank/applicants to make necessary amendments to the plaints and thereafter for disposal of the suits in accordance with law and in the light of observations made above. It is pertinent to mention here that impugned judgments and decrees are set aside in view of the aforesaid discussion, parties are directed to appear before the Banking Court concerned on 19-5-2004, who is directed to proceed in the matter afresh in accordance with law and decide the controversy between the parties as expeditiously as possible within six months. Parties/their counsel are directed to co operate with the Banking Court so that matter may be concluded within reasonable time but not beyond six months, in case, the party/counsel fails to co-operate with the Court then Court shall invoke penal provision against that party.

9. If, the appellants wish to put in any additional grounds in applications for leave to appear and defend to contest the amended suits, they will also be at liberty to file fresh applications with regard to challenge the stand of the respondent-Bank.

10. At the end, we must put on record our deep sense of appreciation for valuable assistance to the Court by the learned counsel of rival party and the learned Amicus Curiae Syed Kaleem Khurshid, Advocate who have taken a lot of pain to assist this Court.

11. With these observations, the above-mentioned appeals are disposed of. M.H./I-40/L Case remanded.