2020 PLP 2001 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Inessential detail apart, Yar Muhammad was the exclusive owner of the subject area, who had two sons-petitioners and even number of daughters-respondents. The entire suit land was transferred to only sons-petitioners just to disinherit the daughters-respondents via registered instrument No.803 on 12.03.1988 followed by mutation No.411 dated 11.04.1988. Having its notice, the latters though instituted suit for declaration, yet aiming cancellation of afore-referred document pleading to be forged, fictitious, collusive based upon fraud and misrepresentation. The petitioners-beneficiaries although contested the suit through their written statement, but neither the allegations were denied with strength nor essential details of the alleged original transaction as well as the construction of basic registered document were provided therein. Any how the following issues were framed:-

1. Whether the plaintiff is entitled for the decree of declaration along with consequential relief of permanent injunction as prayed for? OPP

2. Whether the plaintiffs are entitled for possession of the disputed property? OPP

3. Whether the registry Tamleek No.803 of dated 12.03.1988 and subsequent mutation No.411 dated 11.04.1988 from predecessor in interest of plaintiffs intending attention of land to defendants has been entered after meeting with all its legal requirements?OPD

4. Whether the suit of the plaintiffs is not maintainable in its present form due to non-joinder of the necessary parties?OPD

5. Whether plaintiff has no cause of action to institute the suit, same is liable to be dismissed with special cost?OPD

6. Relief. and after examination of evidence so made available by respective parties, the suit finally decreed on 01.02.2019. The appeal promptly filed and when it was riped for adjudication, the petitioners tabled application under Order VI rule 17 of the Code, 1908 for amendment of the written statement to explain the reasoning why the transaction of Tamleek was effected by the donor as well as to introduce the ingredients of transaction reflected therein besides how the registered document was constructed, but it was not acceded to and to call in question the impugned order of 11.06.2020 to that effect, this civil revision was preferred.

2. Malik Bashir Ahmed Baryal, Advocate learned counsel for the petitioners submitted that amendment in pleadings can be made at any point of time and even at belated stage of proceedings, which cannot be refused on the score of delay. He further emphasized with great vehemence that law favours adjudication of cases on merit and a lis can be improved through amendment, that the proposed amendment is neither aimed to bring any change in the defence already set forth nor going to alter its complexion. In support of his submissions, learned counsel for the petitioners relied upon judgments reported Munir Ahmad and 7 others v. Additonal District Judge, Kasur (PLD 2001 Lahore 149), Ahmed Jamil Ansari v. Messrs Al-Hoqani Securities and Investment Corporation (Pvt.) Limited (2008 CLC 946), Hafiz Muhammad Jaffar v. Muhammad Ameer and 6 others (2011 CLC 1556) Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), Ahsan Kausar and others v. Ahmad Zaman Khan (1986 SCMR 1799), Pehlwan and others v. Ali Ahmad (2005 SCMR 1044), Muhammad Shafi and others v. Abdul Hameed and others (2008 SCMR 654) and Haji Sultan Abdul Majeed (Decd) through Mehboob Sultan and Habib Sultan and others v. Mst. Shamim Akhtar (Decd) through Mah Jabeen and others (2018 SCMR 82).

3. Arguments considered, record consulted.

4. I am fully in agreement with leaned counsel for the petitioners to the effect that while deciding application for amendment of pleadings, Court has to keep in view the interest of justice and allow the case to run on correct lines for decision of real controversy. It is again settled principle of law that amendment can be allowed while ignoring delay whatsoever, even at any stage of proceedings, however, keeping in view the beneficial rule, that proposed amendment is expedient for the purpose of determining the real questions in controversy between the parties, it should not alter the nature of pleadings. Similarly, at the same time it must be kept in mind that the amendment sought must not be tainted with dishonest purposes and should not be intended to build a new case or prejudice the case of adversary, particularly to deprive the latter of a benefit already accrued to him. Indeed, the conduct and the intention of the seeker behind the amendment is one of the relevant factor for allowing or refusing the request.

5. In the present case, the petitioners/defendants through their initial written statement, did not controvert the allegations levelled by the plaintiffs with substance, rather evasively denied. The rule 3 of Order VIII of the Code, 1908 that defendant must deal specifically with each allegation of fact which he does not admit the truth, whereas following rule 4 is an amplification to the former. The rule 5, prescribes the effect of non-compliance with the provisions of rules 3 & 4 ante, which clarifies that if allegation is not denied specifically, it will consider to be admitted and the effect is that plaintiff need not to prove such facts, because the august Supreme Court, while interpreting the under discussion provisions over and over held that evassive denial is an admission. See Daulat Ali through Legal Heris and 2 others v. Ahmad through Legal Heirs and 2 others (PLD 2000 SC 792), Bashir Ahmed and 3 others v. Muhammade Aslam and 6 others (2003 SCMR 1864), G.R. Syed v. Muhammad Afzal (2007 SCMR 433). At the cost of repetition, despite that after submission of basic plaint, the trial proceeded for about another three years and having not defending substantially, the suit decreed against the petitioners/defendants. Thereafter before the appellate Court, when lis came up for final culmination, the request for amendment tabled. Indeed, motive behind this effort was to withdraw the said admissions. Whereas, as per ratio of the judgments of the apex Court in cases styled as Mir Akbar v. Sher Bahadur and others (2006 SCMR 315) and Abaid Ullah Malik v. Additional District Judge, Mianwali (PLD 2013 SC 239), party is precluded to withdraw any admission.

6. It is matter of record that the learned Trial Court had already settled comprehensive issue, which perfectly covered the dimensions of the litigation and the plaintiffs led the affirmative evidence to shift the onus to the beneficiary of the impugned gift deed, as such certainly it was sine qua non for them to establish due construction thereof by examining its signatories i.e. attesting witnesses, identifier of the donor, stamp vendor, deed writer and sub-registrar, but surprisingly solely one of the petitioners (DW 1) appeared in the witness-box, whereas none else summoned or produced to second him. Through the proposed amendment, in fact no new ground of attack is introduced, but it is just aimed to reopen the case by leading evidence afresh, which despite availability was withheld earlier, otherwise simple grant of permission to amend the written statement would not serve purpose of the petitioners. The intention behind the amendment was to cover the lacunas left by the petitioners during trial, which obviously cannot be permitted. The petitioners having examined meagre, weak and poor evidence, definitely accrued vested right in favour of the plaintiffs and in such situation permission to amend the written statement will definitely cause prejudice to the latter. For these reasonings, which find support from the judgments reported as Sulaiman v. Tan Hui Ya (AIR 1930 Rangoon 140), Ijaz Mahmood and others v. Manzoor Hussain and others (1988 SCMR 34), Mir Akbar v. Sher Bahadur and others (2006 SCMR 315), Abaid Ullah Malik v. Additional District Judge, Mianwali and others (PLD 2013 SC 239) and Ghulam Yasin and others v. Ajab Gul (2013 SCMR 23), the impugned order of the learned Court below deserves no interference. This Court has gone through the case-law cited by learned counsel for the petitioners while addressing at bar, but found those to be inapplicable having different situation and facts.

7. Therefore, in the light of above, this petition being meritless and without any substance is dismissed in limine. ZC/M-118/L Revision dismissed.