2021 M L D 1001
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
ABDUL SALEEM and another ---Petitioners
Versus
ABDUL AZIZ and 2 others ---Respondents
C.P. No.1242 of 2019, decided on 30th November, 2020.
Civil Procedure Code (V of 1908) ---
----O.VI, R.17--- Amendment in plaint--- Principle ---Plaintiff/respondent sought amendment
in plaint which was declined by Trial Court but Lower Appellate Court allowed the same ---
Validity ---Only rider was that party could not be allowed to substitute a new cause of action
or introduce a cause of action distinct from the one which was basis of suit and such was not
situation of plaintiff/respondent --- Suit property belonged to forefathers of parties and
defendants/petitioners wer e sons of plaintiff/respondent who were so -called legal heirs of
their grandfather ---Plaintiff/respondent was not in possession therefore, he should have
prayed or relief in plaint ---Such defect was pointed out in written statement that
plaintiff/responden t was out of possession, therefore, amendment in prayer clause was made
so as to insert relief of possession ---Addition of relief of declaration and possession in suit
did not in any manner changed character of the suit nor introduced any new cause of acti on--
-High Court declined to interfere in order passed by Lower Appellate Court in exercise of its
revisional jurisdiction ---Constitutional petition was dismissed, in circumstances.
Nazir Hussain Rizvi v. Zahoor Ahmed PLD 2005 SC 787 rel.
Sultan Muhamma d Taran (absent) for Petitioner.
Obaidullah Khan Kakar (absent) for Respondents Nos.1 and 2.
Khalil -uz-Zaman Alizai, Additional Advocate General ("A.A.G.") for Respondent
No.3.
Date of hearing: 23rd November, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----The petitioners have invoked the Constitutional
jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer: -
"In the circumstances mentioned above, it is respectfully prayed that this Hon'ble
Court may be pleased to set aside the impugned judgment/order dated 04.11.2019 passed by the learned Additional District Judge -IV, Quetta, in the interest of justice,
equity and fair play".
2. Brief facts of the case are that the private respondents filed a suit for declaration,
possession through the partition and permanent injunction as consequential relief against the petitioners before the learned Civil Judge -IV, Quetta, (hereinafter "the trial court").
3. The suit was contested by the petitioners being defendants on legal as well as factual
grounds and denied the claimed of the plaintiffs/respondents.
4. After framing of issues, both the parties produced their respective evidence and when
the case was fixed for final arguments, the private respondents filed an application under
Order VI, Rule 17, C.P.C. for amendment of the plaint before the learned trial court. The
application was contested by the petitioners being defendant, while filing rejoinder and denied the claim of the private respondents. After hearing arguments on the application, the learned trial court dismissed the same on 30.09.2019.
5. Being aggrieved from the order dated 30.09.2019, the private respondents f iled Civil
Revision Petition under section 115, C.P.C. before the court of learned Additional District
Judge -IV, Quetta, and after hearing of the learned counsel for the parties, the learned
revisional court has set aside the order of the trial court and a ccepted the application under
Order VI, Rule 17, C.P.C., whereafter the instant constitution petition has been filed.
6. We have heard the learned A.A.G. for official respondents on 23.11.2020 and the case
was reserved for announced of judgment.
On 25.11.2020, Mr. Abdul Haleem Kakar, learned counsel for the petitioners filed an
application for rehearing of the case and said application was accepted.
We have heard learned counsel for the petitioners as well as learned A.A.G. and have
gone through the avail able record with their able assistance.
7. On deeper consideration of facts, submissions made by the learned counsel and
scrutiny of a copy of the record of suit annexed with the writ petition, it is manifest that
respondents Nos.1 and 2 instituted a suit for declaration, possession through the partition and permanent injunction as consequential relief. It was their case that the petitioners/defendants are the sons of the plaintiff/respondent No.1 . The grandfather of the plaintiff/respondents Nos.1 and 2 n amely Abdullah had left the property, i.e. house measuring 3679 sq.ft bearing
Khasra No.44, Khewat No.87, Khatooni No.120 situated at Ward No.2, Tappa Urban No.1, Tehsil City District Quetta. After the death of the grandfather of the plaintiff/respondents Nos.1 and 2 the said property devolved upon his son namely Abdul Rasheed, i.e. father of the plaintiffs/respondents Nos.1 and 2, while the father of the plaintiffs was died on 02.09.2006 and after the death of the father of the plaintiffs the above mentioned property was devolved upon plaintiffs. The father of the plaintiffs was residing in Lahore whereas the
plaintiff/respondent No.2 is also residing at Lahore, while the respondent No.2 along with
defendants were living in the above mentioned property and relations between the plaintiff and respondent No.1 and private defendant/petitioner were cordial and in the year 1991 the plaintiff contracted second marriage with another lady, therefore, the relation between the defendant/petitioner No.1 become strained, with plaintiff No.1, due to second marriage of
plaintiff No.1 as such the defendant No.1 after creating worst environment made the life of
plaintiff No.1 miserable, compelled the plaintiff No.1 to leave the said house, however, it
was settled between the plaintiff No.1 and private respondents that they will erect a wall
between the house and the defendants Nos.1 and 2 will live in one portion and the plaintiff No.1 will live along with his second wife in other part of the house and accordingly a wall was erected between the house. The plaintiff No.1 started residing in the northern part of the
house. It is further contended in the plaint that about three months ago the defendant No. 1 /petitioner sent some respectable persons of locality and brought the pl aintiff No.1 to live in
the said house; however, the plaintiff No.1 joined the house and residing in one room now the defendant No.1 along with his children are trying to dispossess the plaintiff No.1 from the said house and in this regard, the plaintiff N o.1 told the defendant No.1 to vacate the said
house but the defendant No.1 straightaway refused the plaintiff No.1 to do the needful. In such like circumstances, the plaintiffs left with no other remedy but to approach the trial court for redressal of the ir grievances through the suit.
8. During proceedings of the suit, the respondents Nos.1 and 2 (plaintiffs in the suit)
filed an application under Order VI, Rule 17, C.P.C. for amendment in the plaint. The proposed amendment was incorporated in para 3 of t he application. The respondent/plaintiff
sought amendment in the prayer clause so as to include that in prayer clause 'A' "the suit property is the ancestral property of plaintiff's father left by the grandfather of plaintiffs
namely Abdullah and the defendants have no concern with the same". In prayer clause `B' "by awarding the relief in respect of possession, the defendants be directed to handover the vacant possession of the suit property", and in the prayer 'C' "the defendants be permanently restrained not to interfere in the suit property". The respondents/plaintiffs in their plaint
sought relief against the petitioners/defendants, in relief clause `A' it has mentioned that the "plaintiffs have right to receive their share from the property in dispute" . In clause 'B' of the
prayer clause, it has mentioned that "the defendants be directed to handover the vacant possession of the northern portion of the property," and in clause 'C' it has mentioned that "the defendants be restrained from interference in t he northern portion of the property". The
learned revisional court after considering the viewpoints of both the sides allow the amendment in the plaint.
9. Provision of Order VI, Rule 17, C.P.C. have remained a subject matter of the
consideration and inter pretation in the various pronouncements of the superior courts and the
consistent rule approved therein is that;
(i) The power under Order VI, Rule 17 is discretionary and should be used judicially on consideration of special circumstances of each case and the necessary conditions are
(a) if the amendments do not cause injustice to other side; (b) amendment is necessary for determination of real question in controversy;
(ii) No party can be allowed to introduce new cause of action by way of amendment;
(iii) The Court ordinarily should allow the amendment unless it is found that the applicant
was acting mala fide or injustice or injury was likely to cause to the opposite party which could not be compensated by cost;
(iv) Where due to subsequent events origina l relief sought became inappropriate for
deciding the controversy, the amendment can be allowed to shorten the litigation;
(v) The Court can allow to cure defective pleadings so as to constitute a cause of action where there was none, provided necessary co nditions such as payment of additional
court -fee or costs of other side are complied with except when there is lapse of time
or new cause of action is created;
(vi) Where the Court is lacking inherent jurisdiction over the subject matter, it cannot allow a mendment to bring the suit within its jurisdiction;
(vii) Introduction of inconsistent or contradictory allegations cannot be allowed;
(viii) Delay for itself, cannot be adequate reason for refusing amendment.
10. In view of the consistent rule, the appli cation under Order VI, Rule 17, C.P.C. for
amendment in the plaint filed by the respondent No.1, if considered, it is noticeable that the proposed amendment by no stretch of the imagination could be said to have either introduced
a new or distinct cause of action nor could be claimed to be a case of substitution of the
cause of action nor it can be assumed to be an introduction of a new case.
11. The only rider is that the party could not be allowed to substitute a new cause of
action or introduce a cause o f action distinct from the one which was the basis of the suit and
which was not the situation in the present case. The perusal of the plaint reveals that the
property belong to their forefather, and the petitioner/defendants Nos.1 and 2 are sons of the
plaintiff/respondent No.1 and the petitioners are so- called legal heirs of the late Abdul
Rasheed. Since the respondents/plaintiffs were not in possession, they should have prayed for relief in the plaint and having been pointed out in the written statement that they were out of
possession, the prayer for the amendment in the prayer clause was made so as to insert the relief of possession.
12. To hold this view, we are fortified by the judgment of the Hon'ble Supreme Court
passed in the case of Nazir Hussain Rizvi v. Zahoor Ahmed (PLD 2005 SC 787) wherein it
was held as under: --
"There is no cavil with the proposition that the proposed amendment can neither change the complexion of the suit nor introduce a new cause of action. "No amendment will be allowed where its effect would be to convert the character of the suit." (Shahswar v. Najmaul Hassan 1981 SCMR 730, Khudeja v. Jehangir Khan 1971 SCMR 395, Atlantic Steamer's Supply Co. v. M.V. Titisee PLD 1993 SC 88 and more so the fundamental character o f the suit including the subject -matter and cause of
action cannot be allowed to be substituted. "(Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345, Ghulab v. Fazal Illahi PLD 1955 Lah. 26). It is, however, to be kept in view that subject to certain exceptions "e ven alternative and inconsistent pleas may be
allowed to be raised by way of amendment." (Ghulam Ali v. Pakistan PLD 1960 Kar.
581, Alauddin v. Central Exchange Bank Limited (PLD 1960 Lah. 446) "or a new
ground of claim can be introduced because merely int roduction of fresh matter cannot
alter the nature of the suit and leave ought not be refused in such cases." (Muhammad Essa v. Hasseena Begum 1989 SCMR 476). A line of distinction is to be drawn between 'an alternative case' and 'an inconsistent case' which are neither synonymous
nor interchangeable. A similar proposition was examined in case Budho v. Ghulam
Shah (PLD 1963 SC 553) wherein it, was held that no two facts can be said to be
inconsistent if both could have happened and the test of inconsistency is that a plaint
which contains both cannot be verified as true but a party can put forward more than one source of his right or defence in which case he is pleading in the alternative. The judicial consensus seems to be that an alternative or inconsistent plea can be raised
but contradictory and mutually destructive pleas cannot be taken."
13. Keeping in view the above principles laid down by the superior court, we have come
to conclusion that the addition of relief of declaration and possession in the sui t did not any
manner change the character of suit or introduce any new cause of action, thus the learned revisional court has rightly allowed the requisite amendment in the plaint vide impugned order dated 04.11.2019.
For the forgoing reasons, this petiti on is devoid of merits and hereby dismissed.
MH/35/Bal. Petition dismissed.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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