Muhammad Essa V. District Judge, Pishin and 14 others,

2014 C L C 1288

[Balochistan]

Before Muhammad Noor Meskanzai and Muhammad Ejaz Swati, JJ

MUHAMMAD ESSA ----Petitioner

Versus

DISTRICT JUDGE, PISHIN and 14 others ----Respondents

Constitutional Petition No.876 of 2012, decided on 30th April, 2014.

Civil Procedure Code (V of 1908)

----O. VI, R. 17 --Constitution of Pakistan, Art.199 --Constitutional petition ---Pre-emption suit --- Amendment of plaint ---Scope ---Trial Court dismissed application for amendment of plaint but same was accepted by th e Revisional Court ---Validity ---Contention of defendant was that Revisional Court had no jurisdiction to pass impugned order as valuation of subject -matter was Rs.29,00,000 ---Validity ---Valuation clause of the plaint was Rs.29,00,000 and plaintiff had affixed maximum court -fee---Value of suit property being beyond jurisdiction of Revisional Court revision petition was not competent ---Amendment allowed by the Revisional Court was not permissible as same would change the complexion of suit qua sale considerat ion of suit property ---Plaintiff had never disputed sale price and vague amendment could not be sought --- Controversial amendment was hit by the principle of approbate and reprobate --Impugned order was illegal, unlawful and same was passed without jurisdict ion which was set aside --- Constitutional petition was accepted and application for amendment of plaint was dismissed in circumstances.

Abdul Nasir Kakar for Petitioner.

Imdad Shah for Respondents.

Date of hearing: 26th March, 2014.

JUDGMENT

MUHAMMAD NOOR MESKANZAI, J. --- Following relief has been claimed in the instant Constitutional petition: ---

"It is therefore, respectfully submitted that this Hon'ble (sic) court may kindly be pleased to set aside the impugned order and restore the orde r passed by learned trial Court, in the interest of justice, equity and fair play."

2. Facts relevant for the disposal of the instant Constitutional petition are that the respondent No.2, instituted a suit for possession through pre -emption against the r espondents Nos.1, 3 to 14 and petitioner in the Court of Senior Civil Judge -I, Pishin. The suit was contested by the petitioner by way of filing written statement wherein besides raising certain preliminary legal objections the claim of the respondent No.2 , was repudiated on merits as well. After filing written statement by the petitioner, the respondent No.2 filed an application under Order VI, Rule 17 read with section 151, C.P.C. The said application was contested by the petitioner by way of filing rejoi nder to the same. The learned trial Court after hearing the parties rejected the application vide order dated 30th November, 2011. The order passed by the trial Court was challenged before the learned District Judge by respondent No.2 by way of filing revi sion petition. The latter vide order dated 19th October, 2012 allowed the revision petition and accepted the application allowing the respondent No.2 to amend the suit, hence instant constitutional petition.

3. Heard the learned counsel for the petitione r who argued that the learned revisional court had no jurisdiction to pass the impugned order because valuation of the subject -matter is Rs.29,00,000 (Rupees twenty nine lacs). It was further maintained that the revisional court being incompetent could not have entertained the revision petition, therefore, the judgment passed by the revisional court is not sustainable under the law. It was further submitted that even otherwise factually the amendment introduced by the respondent/plaintiff could not have bee n allowed for the simple reason that the plaintiff/respondent unequivocally, in his plaint determined the value according to the sale price so mentioned in the Revenue Record. According to the plaintiff he has offered payment of Rs.29,00,000 (Rupees twenty nine lacs) so this unqualified stance of the plaintiff creates a legal bar upon the plaintiff and he cannot be permitted to raise another plea which runs contrary to the factual aspect of the matter though the stance of respondent/plaintiff has been denie d by the petitioner.

On the other hand, learned counsel for the respondents strenuously opposed the petition and argued that the revisional court rightly exercised jurisdiction as the valuation clause was doubtful in view of the facts narrated in the am ended application. It was further maintained that once an amendment was allowed by a Court, the higher courts are always reluctant to interfere with such a discretionary order.

4. We have heard the learned counsel for the parties and perused record of th e case minutely. In our considered opinion the submissions made by the learned counsel for the petitioner have got sufficient force. Admittedly, the valuation clause of the plaint was Rs.29,00,000 (Rupees twenty nine lacs) and the petitioner has affixed ma ximum court -fee. We have no doubt in our mind that since value of the suit property is beyond the jurisdiction of the District Judge, therefore, the revision petition filed before the District Judge, Pishin was not competent. Without prejudice to the above legal proposition, even otherwise factually the amendment allowed by the revisional court is not permissible because if the revisional order is allowed to prevail, complexion of the suit would be changed qua sale consideration of the property in dispute. The plaintiff in unequivocal term has made a statement in the plaint expressing his willingness to pay Rs.29,00,000 (Rupees twenty nine lacs) to the petitioner as sale consideration of the property. In the plaint plaintiff has never disputed sale price and after making unqualified statement regarding readiness to pay Rs.29,00,000 (Rupees twenty nine lacs), could not have sought a vague amendment. The plaintiff cannot blow hot and cold simultaneously and the controversial amendment is hit by the principle of approbate and reprobate. Furthermore; the amendment so sought and allowed is not only vague and uncertain rather meaningless, if, such amendment is allowed it will result in an ever lasting litigation between the parties.

In view of what has been discu ssed hereinabove, we are of the considered opinion that the order impugned herein is illegal, unlawful and passed without jurisdiction, as such; the Constitutional petition is accepted. Order dated 19th October, 2012 passed by the learned District Judge, P ishin is set aside and the application filed by the respondent No.2 for amendment is hereby dismissed.

AG/37/Bal. Petition allowed.