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Civil Revision No. 84 of 1964, decided on 25th June 1965.

S. 115‑Mistake of trial Court‑High, Court has ample powers to correct.

Keramat Ali and another v. Muhammad Yunus Haji and others P L D 1963 S C 191 ; L. A. Subramania Iyer v. R. H. Hitchcock A I R 1925 Mad. 950 ; Bibi Gurdevi v. Chaudhri Muhammad Bakhsh and others A I R 1943 Lah. 65 ; Bhai Jiwan Singh v. Mst. Mahboob Jan and others A I .R 1944 Pesh: 1; N. A. Venkatagiri Ayyangar and another v. The Hindu Religious Endow ments Board, Madras P L D 1949 P C 26; S. Zafar Ahmad v. Abdul Khaliq P L D 1964 Kar. 149 and ' Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies P L U 1964 S C 97 ref.

O. VI, r. 17‑Application' for amendment of written statement made before taking evidence . Held, not belated‑Substantial question raised in application going to very root of case‑Trial Court not to disallow amendment -Order open to revision.

Mian Qaim Shah for Petitioner.

Abdul Latif Khan for Respondent.

Date of hearing : 21st June 1965.

The petitioner in this Civil Revision (No. 84 of 1964) happens to be a defendant in a suit filed against him by the Firm Amir Ghazan Khan & Sons on the basis of a bond‑alleged to have been executed by him on the 22nd of June 1961 in favour of the plaintiff‑firm. The suit was resisted by 'the defendant on numerous grounds and issues were settled, but before the date of the evidence the defendant made an application to the trial Court for permission to amend the written statement so as to include the plea of want of consideration for the bond. The plaintiff‑firm opposed the application for amendment mainly on the ground that the defendant by amendment of the written statement wanted to set up a case totally inconsistent with the original case.

2. The trial Court considered that in view of the pleas already taken in the written statement filed by the defendant, the application for amendment of the written statement was not bona fide. Accordingly the application was rejected.

3. Against the order of the Civil Judge, II Class, Charsadda dated the 9th of June 1964, the aggrieved defendant came up in revision to this Court.

4. After hearing learned counsel for the parties and on perusing the record, y think the revision petition should succeed, I proceed to give my reasons for the same. The suit is based on a bond, alleged to have been executed by the defendant‑petitioner in favour of the respondent‑firm. The petitioner it appears had business dealings with the respondent‑firm and as a result of taking of accounts a certain sum was found due from the defendant to the plaintiff‑firm and the defendant is alleged to have executed a bond undertaking to pay the amount by yearly installments.

5. In the written statement the defendant pleaded inter alia that the suit, as laid, was not maintainable, that the bond was (obtained) by fraud and undue influence, that the Firm was not entitled to recover the sum of Rs. 1,500 from him, and that the suit was barred by time.

6. The case of the petitioner is that he wanted to raise: the plea of want of consideration in his written statement, but by an over‑sight it was omitted as the Petition‑writer who drafted the written statement was not able to express himself properly in this regard.

7. Learned counsel for the. petitioner cited: Keramat Ali and others v. Muhammad Yunus Haji and others (P L D 1963 S C 191), L. A: Subrama nia Iyer v. R. H. Hitchcock (A I R 1925 Mad. 950), Bibi Gurdevi v. Chaudhri Muhammad Bakhsh and others (A I R 1943 Lah. 65), Bhai Jiwan Singh v. Mst. Mahboob Jan and others (A I R 1944 Pesh. 1). In support of the argument that this Court in exercise , of its revisional jurisdiction is competent to correct the serious mistake made by the trial Court in refusing to allow the amendment. Learned counsel for the respondent relied on N. S. Yenkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras (P L D 1949 P C 26), S. Zafar Ahmed v. Abdul Khaliq (P L D 1964 Kar. 149) and Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (P L D 1964 S C 97). In support of the contention that this Court will not 'ordinarily interfere in revision with the order of the trial Court on the ground that it made a mistake in disallowing the application for amendment of the written statement.

8. On a careful perusal of the reported cases cited at the; Bar, this much is clear that in an appropriate case the High Courts has ample powers to correct a mistake committed by the trial Court.

9. The defendant, when he filed the written statement in the instant case, really intended to take up the plea that the bond was without consideration and if the Petition‑writer who drafted the written statement made a mistake or omission, I think the defendant should not be penalised by refusing his application for amendment of the written statement. I feel that the defendant was entitled to put the matter right by amendment in order that the real question between the parties may be decided. In my opinion, it cannot be urged successfully in the case before me in revision that the defendant wanted to introduce a new case by seeking to amend the written statement since the application for amendment was put in before the evidence began, it could not be reasonably held either to be belated or made in order to prolong the case. To me it appears that the application to Amend the written statement was properly made and was bona fide.

10. The order disallowing the amendment was passed in the B trial of the suit and as such it cannot be held to be purely formal and incidental or not open to revision. The question raised in the application for permission to amend the written statement was substantial going to the very root of the case and as such the trial Court ought not to have disallowed the application in view of the stage of the case at which it was made. I, therefore, repel the contention that the order is not open to revision until the whole suit is decided.

11. I consider it a fit case in which this Court should inter fere to save the petitioner from irreparable injury which he is likely to suffer if the order passed by the lower Court is allowed to stand. The revision petition is, therefore, accepted, with costs. The order of the trial Court dated the 9th of June 1964, is hereby set aside. The trial Court is directed to proceed with the suit in accordance with law, after the petitioner tiles an amended written statement.

S. Q. Petition accepted.

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