2015 C L C 794
[Balochistan]
Before Mrs. Syeda Tahira Safdar, J
ABDUL MAJEED and 7 others ----Petitioners
versus
Mst. SHAH BIBI and 4 others ----Respondents
Civil Revision No.165 of 2009, decided on 12th February, 2015.
(a) Civil Procedure Code (V of 1908) ---
----O. VI, R. 17 ---Specific Relief Act (I of 1877), S. 42 ---Suit for declaration ---Amendment of
plaint ---Scope ---Interpretation of O.VI, R.17, C.P.C. ---Court had power to allow either of the
parties to alter or amend the pleadings at any stage of the proceedings subject to the condition
that amendment proposed was necessary for the purpose of determining the real question of
controversy between the parties ---If amendment of pleadings was necessary for the purpose of
determination of re al controversy between the parties, it should be allowed subject to the
condition that fundamental character of the suit would not be changed ---Said power of
amendment was not restricted to the trial court rather court sitting in appeal or revision could
also exercise such power subject to the said conditions and restrictions ---Delay in applying for
amendment of pleadings would not be fatal in each case ---Relief ancillary to the relief sought
should be allowed subject to the fact that allowed amendment shou ld not change the basic
character of the suit ---Plaintiff, in the present case, would fail in absence of the relief for
possession which was ancillary to the relief sought originally in the suit ---Addition of the relief
for possession would have no effect on the basic structure of the case, nor its nature would be
changed ---Proposed amendment was necessary for final determination of the controversy
between the parties ---Application for amendment was allowed to the extent of possession subject
to payment of Rs.15,000 as cost of amendment to be paid to the opposite party ---Trial Court was
directed to frame proper issues to the extent of possession after amendment of pleadings by the
parties and decide the matter on merits within a specified time.
Ghulam Bi bi v. Sarsa Khan PLD 1995 SC 351 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. VI, R. 17 ---Amendment of pleadings ---Scope ---Court had power to allow either of the
parties to alter or amend the pleadings at any stage of the proceedings subject to the condition
that amendment proposed was necessary for the purpose of determining the real question of
controversy between the parties.
(c) Specific Relief Act (I of 1877) ---
----S. 42 ---Suit for declaration ---Bar---Scope ---Mere declaration could not be granted where
plaintiff was able to seek further relief.
Muhammad Riaz Ahmed for Petitioner.
Abdul Latif Umrani for Respondents Nos.1 and 2.
Farooq Sarwar, Asstt. A. -G.
Date of hearing: 5th December, 2014.
JUDGMENT
MRS. SYEDA TAHIRA SA FDAR, J. --- The petitioners assailed judgment dated 25th
February, 2009 of Majlis -e-Shoora, Kalat whereby the judgment and decree dated 31st March,
2005 of Qazi Kalat was upheld and their appeal was declined.
2. The brief facts, relevant for determinatio n of the instant petition, are that a suit for
declaration of title consequent thereto rectification of the entries in the revenue record with
permanent injunction was filed by Shah Bibi and Gull Bibi, present respondents Nos.1 and 2.
They claimed themselv es to be the owners of the landed property, subject matter of the suit,
which was asserted to be originally owned by their paternal grandfather namely Ghazi Khan, and
devolved on them (plaintiffs/ respondents Nos.1 and 2) through inheritance. It was their case that
due to drought in the area they were compelled to leave the area and to settle in Jacobabad. Due
to their migration the process of settlement in the area was not in their knowledge, and taking
benefit of their absence from the area defendant Nos. 1 to 15 (present petitioners) in collusion
with the defendant No.17 managed to enter the suit property in their names. The plaintiffs
(respondents Nos.1 and 2) claimed ownership with possession of the suit property despite the
adverse entries in the revenu e record. The cause of action was shown to be accrued on 12th July,
2003 when they learnt about the adverse entry in the revenue record, and also when the
defendants started the act of interference in their possession. Defendants Nos.1 to 15,
(petitioners) denied the title of the plaintiffs (respondents Nos.1 and 2) with the plea that the suit
property was purchased by their predecessors, and they were in its possession since time of its
purchase in their own rights. Several documents were relied asserted t o be executed at the time
of the purchase of the suit property between their predecessor and the alleged sellers.
3. Issues arising of the pleadings of the parties were framed and both the parties produced
their respective evidence. The trial court vide judgment dated 28th April, 2004 dismissed the suit
for want of merit. The appellate court vide judgment dated 2nd September, 2004 on appeal set
aside the judgment of the trial court, and the case was remanded for a decision afresh. The trial
court vide jud gment dated 31st March, 2005 decreed the suit in the terms as prayed for, while the
appeal preferred against the judgment was dismissed vide judgment dated 30th June, 2005. The
petitioners aggrieved with the judgments, approached this court for revision of the orders. This
court vide order dated 5th September, 2008 remanded the matter to the appellate court, and
allowed the parties to produce the relevant documents relied in the pleadings, and the case was
directed to be decided afresh on completion of the process. The appellate court abided by the
order and on completion of the process vide judgment dated 25th February, 2009 found the
appeal without any substance, thus declined the relief. The subsistence of the grievance resulted
in filing of the instant p etition.
4. Respondents Nos.1 and 2 (plaintiffs) were before the trial court to establish a clear title in
their favour in respect of the land, subject matter of the suit, and on basis of the declaration,
rectification of the entries in the revenue recor d was the main prayer in the suit. In addition an
order to restrain the defendants Nos.1 to 15 (petitioners) from interfering in the suit land
permanently was the third prayer. Defendants Nos.1 to 15, (petitioners) denied the claim in the
suit and appeared with the plea that the possession of the land, subject -matter of the suit was with
them as owners and the entries were correctly recorded in their favour in the revenue record
since decades. The suit was for declaration and permanent injunction with no pr ayer for
possession, as the plaintiffs claimed themselves to be in possession. It was noted that plaintiff
No.1 Shah Bibi (respondent No.1) appeared before the trial court on 23rd February, 2004, and
recorded her statement, described as additional statemen t, thereby repeated her claim of
ownership of the land, subject matter of the suit and stated:
In addition one Muhammad Hassan appeared as attorney for the plaintiffs (respondents
Nos.1 and 2) and recorded his statement, whereby admitted presence of the structure in shape of
houses, and boring for a tub -well on the suit land, which belongs to the defendants (petitioners).
5. A specific plea of in possession of the suit land with denial of the title and possession of
the plaintiffs was taken by the defe ndants Nos.1 to 15 (petitioners) in their written statement,
despite the same no issue was framed by the trial court. Para No.8 of the plaint was with the plea
of un -authorized interference on part of the defendants, while in reply thereof a specific plea of
possession was taken by the replying defendants (petitioners), demands framing of a proper issue
to the effect, while the plaintiffs were required to amend their plaint to add the claim of
possession, but it was not done at the relevant time. This court while entertaining the petition in
hand, on 14th April, 2011 asked from the learned counsel for the respondents Nos.1 and 2 that
how a suit for mere declaration without seeking the relief for possession was maintainable, who
sought time for proper instruc tions to amend the plaint. After lapse of considerable time on 1st
December, 2014 an application CMA No.1242 of 2014 was filed for amendment of the plaint
within the purview of Order VI, Rule 17, Civil Procedure Code (C.P.C.).
6. C.M.A. No.1242 of 2014: The instant application was filed for the purpose to amend the
plaint and to add the claim of possession, with further amendments in valuation and prayer
clauses of the plaint, with permission to affix the requisite court fee. This application was replied
and several objections were raised on its maintainability. It was suggested that the applicants
(respondents Nos.1 and 2) might have withdrawn their plaint and file a fresh suit for the purpose
subject to all just exceptions. The learned counsel for the pa rties argued their case on merit along
with the application filed for the purpose of amendment in the plaint. The matter was riped for
final decision, but keeping in view the relief claimed in the application, it deemed appropriate to
decide the applicatio n before findings are recorded on the main revision petition, as it would
directly effect the fate of the instant petition.
7. Respondents Nos.1 and 2 (plaintiffs) sought amendment of the plaint to the extent of
possession of the suit property, and as a result thereof amendment to the extent of value of the
suit and payment of the requisite court fee. Order VI, Rule 17, C.P.C. is clear enough to deal
with the situation. It adequately empowers a court to allow, either of the parties, to alter or
amend the pleadings at any stage of the proceedings, subject to the amendment proposed is
necessary for the purpose of determining the real question of controversy between the parties.
The Rule consists of two parts, first part is with a discretion, while the second part is mandatory
in nature. It is within discretion of the court, while the matter is before it, to allow alteration or
amendment of the pleadings if it deemed necessary. It is further in its discretion to determine the
manner and the terms for the purpo se, suitable and just in circumstances of each case. The Rule
further mandated that if the amendment is necessary for the purpose of determination of the real
controversy between the parties, it should be allowed subject to the fundamental character of the
suit should not be changed. In case in hand the plaintiffs (respondents Nos.1 and 2) applied this
court for amendment of the plaint to add the relief of possession, the matter had already been
decided by the trial court and by the appellate court in appea l, at present the parties are before
this court in revision. Rule 17 of Order VI, C.P.C. empowered the court to allow the amendment
in the pleadings, but neither the term Court nor the proceedings defined therein. Both the terms
are treated in broader mean ings, thus it is now a settled principle that the available power is not
restricted with the trial court, during pendency of the suit, rather the courts sitting in appeal or
revision can exercise the power available under the Rule subject to the conditions and restrictions
provided therein.
8. In view of the established principle an amendment at any stage of the proceedings would
include the trial as well as the appellate or revisional stage, thus empower a court either trial,
appellate or revisional to d eal with the matter. In addition if the court arrives to the conclusion
that the amendment is necessary to determine the real controversy between the parties, it
mandated to allow the request. Further delay in applying for the amendment would not be fatal in
each case. Rather the relief ancillary to the relief sought originally have to be allowed subject to
the fact that allowed amendment must not change the basic character of the suit.
9. Section 42 of the Specific Relief Act, 1877 place a bar on mere de claration, whereby the
plaintiff being able to seek further relief. The Hon'ble Supreme Court while dealing with the
issue laid down the basic principle for the purpose in case Ghulam Bibi v. Sarsa Khan reported in
PLD 1995 SC 351. It was held that: ---
"Be that as it may, the learned Judge himself observed and rightly, so that the delay alone
in applying for the amendment cannot be a determining factor, for deciding an application under
Order VI, rule 17, C.P.C. The use of the expression "at any stage of the proceeding" in rule 17 is
not without significance. The word "proceedings" has been interpreted by this Court in a liberal
manner so as to give a proper scope to the rule in accord with its purpose, as including the
appellate stage and that too up to the Supreme Court.
The foregoing interpretation is also in accord with the mandatory language used in rule
17 to the effect that "all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy .." Therefore, once the Court decides that the
amendment is necessary for the said purpose of determining the real question, the Court is
required by law to not only to allow an application made by a party in that behalf but is also
bound to direct the amendme nt for the said purpose. Thus, the rule can be divided into two parts.
In the cases falling under the first part, the Court has the discretion to allow or not to allow the
amendment, but under the second part once the Court comes to a finding that the amen dment is
necessary for the purpose of determining the real question, it becomes the duty of the Court to
permit the amendment.
What has been stated above is, however, subject to a very important condition that the
nature of the suit in so far as its cau se of action is concerned is not changed by the amendment
whether it falls under the first part of rule 17 or in the second part, because when the cause of
action is changed the suit itself would become different from the one initially filed."
10. Keepin g in view the principle as determined by the Hon'ble Supreme Court, if a court,
arrives to a conclusion that amendment is necessary for the purpose of determination of the real
case between the parties mandated to allow the amendment. In case in hand in vi ew of section 42
of the Specific Relief Act, 1877, the case of the plaintiffs would fail in absence of the relief for
possession, as it is ancillary to the relief sought originally in the suit. In addition there was delay
in filing of the application for a mendment as specific plea was taken in the written statement to
the same effect, and petitioner No.1 and their attorney when appeared before the trial court were
in knowledge of the fact that the possession was with the other party. Despite the same they
failed to move an application for the purpose in time to add the relief of possession. As it is held
in the preceding para that delay in applying for amendment is no ground to refuse the
amendment, rather determination for the real controversy between the p arties is the main
consideration. The further caution needed to be taken that the nature of the suit must not be
changed due to the amendment. In case in hand the prayer was for declaration of the title, and on
basis thereof rectification of the entries in the Revenue record with an order of restraint, thus, the
addition of the relief for possession would have no effect on basic structure of the case, nor its
nature would be changed. Rather, the proposed amendment is necessary for final determination
of the controversy between the parties.
11. In view of the above discussion the application is hereby allowed. In view thereof it
would not be appropriate to record findings on merit of the case. It is ordered that the plaint is
allowed to be amended to the ex tent of possession subject to payment of Rs.15,000 (Rupees
fifteen thousand only), as cost of the amendment to be paid to the contesting defendants i.e.
present petitioners. The case is remanded to the trial court with direction that after amendment of
the plaint, the defendants shall have the opportunity to amend their written statements to the
effect, and a proper issue be framed to the extent of the possession. On amendment of the
pleadings the parties be allowed to produce their evidence restricted to t he newly framed issue.
While the trial court is directed to decide the matter on basis of the evidence already on the
record in addition to the evidence produced after amendment of the pleadings, preferably within
a period of six months from receipt of thi s order as the matter pertains to the year 2003.
The petition is decided in the above terms, with costs.
AG/26/Bal Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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