P L D 2025 Balochistan 167
Before Gul Hassan Tareen, J
SHAKAR KHAN through Legal Heirs ---Petitioners
Versus
MUHAMMAD ALI and others ---Respondents
Civil Revision No. 650 of 2021, decided on 11th June, 2025.
Civil Procedure Code (V of 1908) ---
----S. 148, O. VI, R. 18 & O. XVII, R. 3---Specific Relief Act (I of 1877), S. 39--- Suit for
cancellation of contract and correction in revenue record--- Pleadings stage ---Amendment ---
Scope ---Failure of the petitioners/plaintiffs to amend the suit despite availing numerous
opportunities ---Trial Court dismissed the suit while exercising powers under O. XVII, R. 3,
C.P.C., which decision upon appeal preferred by the petitioners was upheld by the appellate
court ---Validity ---Petitioners' suit was at pleadings stage, thus, they had to file amended
plaint and since they had failed, the Trial Court could have invoked O. VI, R. 18, C.P.C., but the Trial Court dismissed the suit under O. XVII, R. 3, C.P.C.--- Suit was not fixed for
hearing ---Suit was at pleadings stage and issues were not framed, thus, prior to framing of
issues, provision of O. XVII, R. 3, C.P.C., could not be invoked and for this reason too, the
impugned orders suffered from legal error, however, since petitioners could not file amended
plaint despite availing opportunities and even subject to costs, thus, they were no more
entitled for grant of further time under O. VI, R. 18, C.P.C., read with S. 148, C.P.C.--- Trial
Court could have disallowed the petitioner from filing the amended suit on account of their
unexplained/consistent default in filing the amended plaint, however, petitioners could not have been non -suited ---Trial Court had exercised a jurisdiction, which was not vested in it
under O. VI, R. 18, C.P.C. and Appellate Court also failed to perform its legal obligation of correcting such legal error ---Civil revision was allowed, in circumstances.
Zahoor Ahmed Mengal for Petitioners.
Abdul Ghaffar Baloch for Respondents Nos. 1- A to 2 -H.
Dates of hearing: 2nd and 4th June, 2025.
JUDGMENT
GUL HASSAN TAREEN, J. ---This civil revision petition assails concurrent orders
of the two courts whereby petitioners' suit was dismissed under Order XVII, Rule 3, the Code of Civil Procedure, 1908 ('Code').
2. Facts are that, petitioners instituted civil suit against the respondents in respect of
correction of revenue record bearing survey No.275 and cancellation of, contract dated 13 November 1965 and, contract of sale dated 02 November 2010. Suit was remanded back by the Appellate Court to the learned Civil Judge, Dalbandin and petitioners' were directed to amend the plaint by adding the relief of cancellation of contract dated 02 April 2013. Despite availing opportunities, petitioners could not file amended plaint, thus, suit was dismissed under Order XVII, Rule 3, the Code, vide order and decree dated 24 September 2020. Suit's dismissal order was upheld by the learned Addl: District Judge, Dalbandin vide impugned judgment and decree dated 17 August 2021.
3. Mr. Zahoor Ahmed Mengal, learned counsel for the petitioners submitted that because
of Covid- 19 pandemic, petitioners could not file amended suit and for this reason, they were
not afforded proper opportunity to file the amended suit.
4. Mr. Abdul Ghaffar Baloch, learned counsel for the respondents 1- A to 2 -H supported
the impugned orders.
5. Heard and have gone through the record.
6. Petitioners' appeal was allowed by the Appellate Court and they were directed to file
amended suit by adding the relief of cancellation of contract dated 02 April 2013, which was
relied upon by the respondents. From 25 February 2019 till 24 September 2020, petitioners' had failed to file amended suit. Case diaries reveal that petitioners' counsel was appearing before the Trial Court and despite availing countless opportunities (even subject to costs) could not file the amended plaint. The learned Trial Judge vide order dated 27 August 2020, afforded final opportunity to the petitioners for filing amended plaint, however, amended plaint was not filed and petitioners had failed to tender any sufficient cause therefor.
7. Order VI rule 18, the Code is relevant which reads:
'Failure to amend after Order….. If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court'.
Though, petitioners had failed to file amended plaint within fourteen days from the
date of the order of the Appellate Court and within the time extended by the Trial Court on countless dates of hearing under section 148, the Code, however, the Trial Court could not have dismissed the suit either under, Order XVII, Rule 3 or, Order VI, Rule 18, the Code. Where a plaintiff or a defendant fails to amend the pleading (plaint or written statement, as
the case may be), then according to the language of Order VI, Rule 18, the party shall not be
allowed to amend the pleading after the expiration of the limited time prescribed in the rule.
Such plaintiff or defendant cannot file amended pleading subsequently, however, the rule
does not prescribe, dismissal or rejection of the plaint or, stricking right to defend the suit, on account of such default. Rather the Court shall proceed with the suit on the basis of available
unamended pleading(s).
8. The learned Trial Judge could have disallowed the petitioner from filing the amended
plaint on account of their unexplained consistent default in filing the amended plaint,
however, petitioners' could not have been non- suited. The Trial Court had exercised a
jurisdiction which was not vested in it by the law of Order VI rule 18, the Code. The Appellate Court was under legal obligation to have corrected this legal error, however, failed.
9. Petitioners' suit was at pleadings stage. Petitioners had to file amended plaint and
since they had failed, the Trial Court could have invoked Order VI rule 18, the Code. Despite this provision, the Trial Court dismissed the suit under Order XVII, Rule 3, the Code. Suit was not fixed for 'hearing'. Suit was at pleadings stage and issues were not framed, therefore, prior to framing of issues, provision of Order XVII, Rule 3, the Code could not be invoked. For this reason too, the impugned orders suffer from legal error. However, since petitioners could not file amended plaint despite availing opportunities and even subject to costs, therefore, they are no more entitled for grant of further time under Order VI, Rule 18 read with section 148, the Code.
For the aforesaid reason, I allow this civil revision petition, order and decree dated 24
September 2020 of the learned Civil Judge, Dalbandin and impugned judgment and decree dated 17 August 2021 of the learned Addl: District Judge, Dalbandin in C.A 02/2020 are set -
aside. Case is remanded back to the Trial Court to proceed with the suit on the basis of available pleadings. Matter is old. The learned Trial Judge shall decide the suit within four months. Parties are directed to appear before the Trial Court on 23 June 2025. No costs.
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