2022 Y L R 1276
[Balochistan]
Before Naeem Akhtar Afghan and Zaheer ud Din Kakar, JJ
SHER ZAMAN ---Petitioner
Versus
Syed ABDUL SADIQ and 2 others ---Respondents
C.P. No.464 of 2020, decided on 23rd June, 2021.
(a) Civil Procedure Code (V of 1908) ---
----O. XXIII, R. 2(a) ---Withdrawal of suit with permission to file afresh ---Terms 'formal
defect' and 'other sufficient cause' ---Trial Court accepted petitioner's/plaintiff's application
for amending the plaint ---District Court set aside the order of trial Court on ground that the
proposed amendment would change the nature of the suit ---Validity ---Contents of original
plaint revealed that relevant facts pertaining to iqrarnama had not been pleaded and defect
and ambiguity found in description of the suit pr operty and cause of action ---District Court
rightly dismissed petitioner's application under O. VI, R. 7, C.P.C. as amendments had
changed the nature and complexion of the suit and cause of action ---Suit was at initial stage
and evidence had not been led ---Cause of action was subsisting for the subject property, so
petitioner could not be held remediless and non -suited on technicalities ---Order XXIII
prevented technicalities from defeating justice ---Sufficient grounds existed for allowing
petitioner to file the suit afresh by properly pleading the relevant facts, with correct
description of property and its correct accrual of cause of action ---C.M.A. was accepted and
Constitutional petition was disposed of accordingly.
(b) Civil Procedure Code (V of 1908) ---
----O. VI, R. 17 ---Amendment changing nature and complexion of the suit was not
permissible under O. VI, R. 17 of C.P.C.
(c) Civil Procedure Code (V of 1908) ---
----O. XXIII, R. 2 & O. VI, R. 17 ---Formal defect ---Scope ---Misjoinder of cause of
action/fail ure to disclose proper cause of action, insufficient description of the suit property
and defective frame of the suit were held formal defects to attract provisions of R. 2(a), O.
XXIII, C.P.C. ---Such defects could not be remedied by allowing amendment und er O. VI, R.
17.
(d) Civil Procedure Code (V of 1908) ---
----O. XXIII, R. 2(a) ---Term 'other sufficient cause' was wider than the term 'formal defects' -
--Incorrect averments made in plaint and plaint having not been properly drafted by a lawyer
as held as sufficient grounds for allowing the plaintiff to withdraw the suit with permission
to file the same afresh.
(e) Civil Procedure Code (V of 1908) ---
----S. 151 ---Mere non -mentioning of correct provision of law was not fata to the application
if power to pas s such an order was available with the Court.
Behlol Khan Kasi for Petitioner.
Jamil Ahmed Khan Babai for Respondent No.1.
Zahoor Ahmed Baloch, Assistant Advocate General for Respondent No.3.
Date of hearing: 3rd June, 2021.
ORDER
NAEEM AKHTAR AFGHAN, J .---In the instant constitution petition, the peti -tioner
(plaintiff) has prayed as follows: --
"It is, therefore, respectfully prayed that this Hon'ble Court may graciously be pleased
to call the record from the court below and after perusal of t he same, set aside the
impugned order dated 10.03.2020 passed by learned Addl. District Judge -IV/Model
Civil Appellate Court, Quetta, and in consequences thereof the order dated
16.12.2019 be ordered to be upheld, allowing the proposed amendments in the pl aint
in favor of petitioner, along with any other relief as deemed fit and proper in favor of
petitioner, in the interest of justice, equity and fair play".
2. The petition has been contested by respondent No.1 (defendant No.1) without filing
counter affid avit.
According to contents of the petition, the whereabouts of respondent No.2 (defendant
No.2 Muhammad Azam/ son of the petitioner) are not known and he is missing since
1986/Mafooq -ul-Khabar due to which publication was made for respondent No.2 in Dail y
Bakhabar dated 05.12.2020.
3. During pendency of the instant constitution petition, the petitioner submitted C.M.A.
No.1653/2020 on 22.07.2020 under Order XXIII, Rule 1, C.P.C. soliciting permission of this
Court for withdrawal of the suit with permissio n to file the same afresh on the ground that
the suit filed by the petitioner is suffering from formal defects.
4. The above application has been contested by respondent No.1 by filing reply on the
ground that the suit filed by the petitioner is not suffer ing from any formal defect; that the
petitioner has made certain admissions in his plaint and the petitioner is attempting to deny
the same by filing the suit afresh.
5. After hearing learned counsel for the parties and learned A.A. -G., we have perused
the available record which reveals that initially in November 2017, the petitioner and his son
Shahzaib (corrected as Shehbaz Khan by the revisional Court), filed suit for Declaration,
Specific Performance of Agreement, Possession and Permanent Injunction against respondents
Nos.1 and 2 and Tehsildar City Quetta on the basis of Iqrarnama dated 19.01.2012.
6. During pendency of above suit, the petition er submitted an application under Order
VI, Rule 17, C.P.C. for amendments in different paras of the plaint which was contested by
respondent No.1 on the ground that the proposed amendments will change the entire
complexion and character of the suit; that the petitioner wants to set up a new cause of
action; that the petitioner intends to resile from the admissions made in the plaint.
7. It reveals that without affording opportunity of hearing to respondent No.1 the
application filed by the petitioner under Order VI Rule 17, C.P.C. was accepted by learned
Civil Judge -III, Quetta (hereinafter "CJ -III Quetta") vide order dated 18.06.2018.
8. In pursuance of above order passed by CJ -III Quetta, the petitioner filed 1st amended
plaint dated 10.07 .2019 with amendments in different paras of the plaint.
9. The order dated 18.06.2018 passed by learned CJ -III Quetta on the application of the
petitioner under Order VI, Rule 17, C.P.C. was challenged by respondent No.1 by filing Civil
Revision No.71/2019 before learned Additional District Judge -IV Quetta (hereinafter "ADJ -
IV Quetta").
10. While accepting revision petition vide order dated 18.06.2019, learned ADJ -IV
Quetta remanded the matter to learned CJ -III Quetta for deciding the application under Orde r
VI, Rule 17, C.P.C. afresh after affording opportunity of hearing to the parties.
11. After hearing learned counsel for the parties, learned CJ -III Quetta accepted the
application of the petitioner under Order VI, Rule 17, C.P.C. vide order dated 16.12.2 019,
operating para whereof reads as follows: --
"6. In a nutshell, the first suit clearly shows, parties are in conflict on agreement dated
19.01.2012. As a result, Mutation No.2387 came into existence. Now plaintiff seeks
cancellation of same agreement. A perusal whereof shows, main issue between the
parties are agreement dated 19.01.2012 and Mutation No.2387. Even prayer clause
shows the same fact, reason for filing the amended title has weight because parties
should not suffer by mistake committed by co unsel. Similarly, instant matter is at
initial stage and no any prejudice would cause to either party if amendment allowed.
Reliance made by defendant that amendment should not change the nature and
complexion of instant matter. Further, said amendment cle ar the core issue and not
change the nature of suit and proposed amendments are necessary for arriving at just
conclusion".
12. The above order passed by learned CJ -III Quetta was challenged by respondent No.1
before learned ADJ -IV Quetta by filing Civil R evision No.123/ 2019 which was accepted
vide impugned judgment dated 10.03.2020, operating paras whereof read as follows:
"6. Record shows that the plaintiff/respondents Nos.1 and 2 have sought the amendment
in the title of the plaint, in the body of the suit in Paras Nos.4 and 6 and in the prayer
clause. The proposed amendment proves that the same will change the nature of the suit
but the learned trial court has accepted the application without discussing this aspect of
the case by simply holding that si nce the matter is at initial stage so the application is
accepted. The proposed amendment proves that the petitioner are resiling from an
admission made in the plaint. Amendment in the pleadings was not permissible where
on account of an omission to raise a plea in the pleadings, valid rights had accrued to the
opposite party. Court was also under a duty to watch the bona fides/mala fide of the party
seeking the amendment (2012 CLC 1403). Intention of the party seeking amendment was
a relevant factor for al lowing or refusing the request. While allowing amendment of
pleadings, the court should keep in view the admission, which had been made by the
parties therein (pleadings). Amendment should not be allowed, where it tantamount to the
withdrawal of an admissi on or where it obliterated an admission (PLD 2013 Supreme
Court 239). Pleadings proves that the plaintiff/respondents Nos.1 and 2 are trying to
resile from an admission made in the pleadings about the execution or an amend -ment
and thereby a right has been accrued in favour of adverse party. Party could not wriggle
out of his own admission (2010 CLC 1941). Learned trial court has fallen into an error by
allowing the proposed amendment vide impugned order in an illegal and irregular manner
and in the circums tances the same is not sustainable.
7. As a consideration to the discussion made here in above, the petition in hand is
accepted by setting aside the impugned Order except the correction of name of the
respondent/plaintiff No.2 which shall be rectified i n the body of the plaint as Shehbaz
Khan instead Shah Zaib.
13. While filing the instant constitution petition, the petitioner had arrayed his son (plaintiff
No.2) as respon -dent but vide order dated 20.10.2020 his name was deleted due to his death
during pendency of the proceedings and amended title of the constitution petition was filed on
16.11.2020.
14. Contents of the original plaint (dated 30.11.2017) filed by the petitioner reveal that the
petitioner asserted his claim and accrual of cause of action on the basis of agreement dated
19.01.2012 executed by him with respondent No.1, but perusal of the agreement dated
19.01.2012 and contents of the original plaint reveal that the relevant facts pertaining to
Iqrarnama dated 19.01.2012 have not been pleaded in the original plaint.
Contents of the original plaint also reveal of defect and ambiguity in description of
the suit property as well as in para -8 pertaining to the cause of action.
15. The petitioner tried to rectify the above defects by amending diff erent paras of the
original plaint in pursuance of order dated 18.06.2019 passed by learned CJ -III Quetta but the
revisional court has rightly dismissed the application of the petitioner under Order VI, Rule 17,
C.P.C. as the amendments made in the origina l plaint have changed the nature and complexion
of the suit as well as the cause of action.
Amendment changing nature and complexion of the suit is not permissible under
Order VI, Rule 17, C.P.C.
16. It reveals that the original plaint has not been properly drafted by the learned counsel
for the petitioner according to the accrual of cause of action with reference to Iqrarnama
dated 19.01.2012 and it is also defective with regard to description of the suit property.
17. Misjoin der of cause of action/ failure to disclose proper cause of action, insufficient
description of the suit property and defective frame of the suit are held formal defects to attract
provision of Order XXIII, Rule 2(a), C.P.C.
The above formal defects cannot be remedied by allowing amendment of the plaint
under Order VI Rule 17, C.P.C.
18. Order XXIII, Rule 2(b), C.P.C. also mentions about "other sufficient grounds" for
allowing the plaintiff to institute a fresh suit. The term "oth er sufficient cause" is wider than
the term "formal defects".
Incorrect averments made in the plaint and the plaint having not been properly drafted
by a lawyer is held as sufficient grounds for allowing the plaintiff to withdraw the suit with
permission to file the same afresh under Order XXIII, Rule 2, C.P.C.
19. The suit filed by the petitioner is at initial stage and the parties have not yet led
evidence.
20. In view of cause of action still subsisting for the subject property, the petitioner
cannot be held remediless and he cannot be non -suited on the basis of mere technicalities as
the law favours adjudication on merits.
Order XXIII, C.P.C. prevents technicalities from defeating justice.
21. The admissions/averments made by the petitioner in the orig inal plaint (as alleged by
respondent No.1) can be confronted to the petitioner by respondent No.1 in the proceedings
of subsequently filed suit.
22. In view of the formal defects in the original plaint, there is every likelihood that the
suit filed by the petitioner will fail. There exist sufficient grounds for allowing the petitioner
to file the suit afresh by properly pleading the relevant facts with reference to Iqrarnama
dated 19.01.2012, with correct description of the suit property and with correct a ccrual of
cause of action.
23. Though in the title of C.M.A. No.1653/2020, the petitioner has not correctly
mentioned the relevant provision i.e. Order XXIII, Rule 2, C.P.C. and he has wrongly
mentioned the provision of Order XXIII, Rule 1, C.P.C. but in t he prayer clause of C.M.A.
No.1653/2020, the petitioner has prayed for withdrawal of the suit with permission to file the
same afresh. In view of its prayer clause, C.M.A. No.1653/2020 is considered as an
application of the petitioner under Order XXIII, Ru le 2, C.P.C.
24. Mere non -mentioning of correct provision is not fatal to the application if power to
pass such an order is available with the Court.
25. The cases of Muhammad Kazim Ziauddin Durrani v. Muhammad Asim 2001 SCMR
148 and Abaid Ullah Malik v. A dditional District Judge PLD 2013 Supreme Court 239 relied
upon by learned counsel for respondent No.1 are distinguishable and same are not attracted
to the facts and circumstances of the instant case.
For the above reasons, C.M.A. No.1653/2020 filed by the petitioner is accepted. The
suit (dated 30.11.2017) filed by the petitioner is allowed to be withdrawn with permission to
the petitioner to file the same afresh subject to cost of Rs.10,000/ -.
Constitution Petition No.464 of 2020 is disposed of in the above terms.
ZH/108/Bal Application allowed.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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