2012 PLP 1734 (CLC)

MUNIR AHMED CHAUDHARY, J.

The appellant/applicant filed an appeal before this Court against the judgment and decree passed by the learned District Judge Kotli dated 16-6-2010, through which the judgment and decree passed by the learned Senior Civil Judge Kotli resulting in dismissal of the suit was upheld.

2. During pendency of the said appeal, the appellant/plaintiff Muhammad Siddique submitted an application for amendment in the original suit which has to be disposed of. Brief facts of the case are that appellant filed a suit for declaration against the respondents in the Court of Senior Civil Judge Kotli regarding the disputed land stating therein that respondent No.4 with connivance of other respondents got a collusive decree regarding the disputed land filing a suit against the other respondents. The suit was kept secret from the appellant. The name of the appellant was struck down by the plaintiff/respondent Muhammad Iqbal, so, the said respondent got issued the said collusive decree based on fraud and mutual connivance. The appellant prayed to issue a decree for declaration in his favour.

3. Respondents/defendants submitted written statement stating therein that the suit is not maintainable and the appellant has got no cause of action. The appellant was impleaded as a party in the line of pro forma defendants, so, the suit filed by the appellant was to be rejected under Order VII, Rule 11 of C.P.C. After framing issues, arguments were advanced on legal Issues Nos.5 and

6. The said issues were as under:

Issue No.5:- Whether the suit is liable to be rejected under Order VII, Rule 11 of C.P.C and the plaintiff has got no cause of action? Issue No.6:- Whether the suit is hit by the principle of res judicata and liable to be dismissed?

4. After hearing the parties, the learned Senior Civil Judge Kotli dismissed the suit declaring that the appellant/plaintiff has got no cause of action and the suit is hit by the principle of res judicata. Feeling aggrieved, the appellant preferred an appeal before the learned District Judge Kotli who also dismissed his appeal and maintained the judgment and decree passed by the learned Senior Civil Judge Kotli. Thereafter, the appellant filed the instant appeal before this Court.

5. It was stated in the amendment application that the appellant/ applicant filed a suit for declaration in respect of disputed land bearing Survey Nos.60 and 81 measuring 5 kanals and 9 marlas out of Khewit No.53 situated at village Ishqiali Tehsil and District Kotli. The appellant/applicant suggested the following amendment in para 3 of the plaint as under:

بتدادی 5 کنال 3 مرلہ بروے بیح زبانی بصیغہ معاہدہ بیح بلعوض مبلغ 2500 روپے اور بعد ادائیگی قیمت اراضی کا قبضہ حاصل کر لیا ہے جب سے مدعی اولا والد خود سید محمّد اور بعدازاں ذاتی حثیت سے قا بض و متصرف چلا آ رہا ہے اور یہ کہ خسرہ نمبر 81 کی بجایے خسرہ نمبر 79 درج کرنا مطلوب ہے It was further stated that the proposed amendment is just a description of the property which does not change cause of action and nature of the suit. It was prayed to allow the proposed amendment.

6. Objections were submitted on behalf of the respondents stating therein that the amendment application is against the facts and law. Both the subordinate Courts have recorded concurrent findings against the appellant. The appellant took his version regarding Survey No.81 and mentioned that this survey number was purchased by him through oral sale but now he wants to replace survey No. 79 instead of Survey No.81 in the proposed amendment. So, cause of action and nature of the suit shall be totally changed, if the proposed amendment is allowed. It was prayed to dismiss the application for amendment filed by the appellant/applicant.

7. Arguments were advanced by the learned Counsel for the parties. Malik Mohammad Asghar, Advocate, the learned Counsel for the appellant/applicant argued that the proposed amendment is necessary for disposal of the controversy between the parties. The cause of action and nature of the suit do not change by allowing the proposed amendment. The learned Counsel referred the precedent 2007 CLC 441 in support of his arguments.

8. While controverting the learned Counsel for the appellant/applicant, Malik Mohammad Mansha, Advocate, the learned Counsel for the respondents, contended that nature of the suit and cause of action shall be changed by allowing the proposed amendment. The learned Counsel requested to dismiss the application for amendment and referred the following precedents in support of his arguments:

(1) 1985 CLC 1650 and (2) PLD 1987 SC AJ&K 93.

9. After hearing the arguments, I have gone through the record available and the precedents referred carefully. The record reveals that the appellant/applicant took this version in para 3 of the plaint that he purchased the land measuring 4 kanals through oral sale from Survey Nos.60 and 81 but the appellant/applicant proposed this amendment that he purchased the land measuring 5 kanals and 3 marlas through oral sale. The appellant proposed that Survey No.81 should be replaced by Survey No.79. This proposed amendment fully changes the nature of the suit and cause of action because the appellant wants to insert another survey number instead of firstly mentioned survey number.

10. It is a settled principle of law that proposed amendment in the pleadings should be fair and bona fide, it may not be inconsistent and in conflict with the pleadings sought to be amended, it may not introduce a new cause of action or defence rendering visible change in the character and complexion of the case and it may not amount to defeat a legitimate right of the opposite party. This principle has been laid down in a case titled "Mohammad Malik and another v. Raja Mohammad Najib Khan and 2 others" (1985 CLC 1650).

11. In another case titled "Mst. Resham Jan and 3 others v. Mohammad Latif and another" (PLD 1987 SC AJ&K 93), it was held that an agreement to sell does not create any title in the property. No person can claim a decree of title on the basis of an agreement to sell. In the present case, it is crystal clear that proposed amendment shall fully change the nature and complexion of the suit and even cause of action. Moreover, oral sale does not create any title or ownership in the property until the sale is completed in accordance with provisions of law. In the light of what has been discussed above, the application for amendment stands dismissed. HBT/39/HC(AJ&K) Application dismissed.