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Civil Petition for Special Leave to Appeal No. 405 of 1968, decided on 6th March 1969.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 20th May 1968, in Civil Revision No. 23 of 1963).
Civil Procedure Code (V of 1908), O. VI, r. 17‑Amendment of pleadings‑Suit for mere declaration that alienation made by widow holding life estate would not affect reversionary rights of plaintiffs‑Death of widow pending proceedings‑‑Plaintiffs moving application requesting that they be allowed to add relief for possession as well in view of widow's death Held conversion of suit from its declaratory form to one for possession was eminently justified due to change in circumstances‑Amendment, held, rightly allowed by trial Court.
S. M. Masud, Advocate Supreme Court instructed by S. Wajid Hussain, Senior Attorney for Petitioners.
Zainul Abedin, Advocate Supreme Court instructed by Masud Akhtar, Attorney for Respondents.
Date of hearing : 6th March 1969.
Mst. Begum Bibi, widow of Hafiz Noor Ahmad, made two alienations of the land in dispute successively, the first in favour of a Khanqah (a mausoleum for her deceased husband) and the second by means of a gift in favour of her brother's son (Petitioner No. 2‑Qamar Din). The respondents, who claim to be the collaterals of Hafiz Noor Ahmad, challenged the first alienation and obtained the usual declaratory decree under custom on the 13th of July 1937, that the alienation would not affect their reversionary rights after the demise of Mst. Begum Bibi who Has a limited owner holding a life estate. The second alienation in favour of petitioner No. 2 was also challenged by them by a suit which was originally filed as one for declaration with the consequential relief of possession but was later amended as one for declaration only. In the year 1965 Mst. Beguin Bibi died during the pendency of the suit and an application was moved by the respondents on the 17th of January 1967, requesting that they should be allowed to amend their suit so as to add a relief for possession which had become available on account of the death of Mst. Begum Bibi. The application was resisted by the petitioners on the ground that the proposed amendment will alter the nature of the suit and also that the relief for possession had become time‑barred. The trial Court allowed the Prayer for amendment which was challenged by the petitioners in revision before the High Court which has been dismissed. The High Court has upheld the order of the trial Court on the ground that the amendment sought was justified on account of the change in the circumstances brought about by the death of Mst. Begum Bibi and also for avoiding multiplicity of suits between the parties. An objection was taken by the petitioner as regards the long delay in filing the petition for amendment which has been answered by the explanation that the file of the case remained with the High Court in connection with proceedings taken there up until the 9th of January 1967. The respondents had made the application for amendment on the 16th of January 1967, immediately on the return of the file by the High Court.
As the relief for possession become open to the respondents on the demise of Mst. Begum Bibi, the conversion of the suit from its declaratory form to one for possession was eminently justified. If the petitioners consider that the relief of possession is time‑barred, they may ask for an issue on that point by an amended written statement which can be determined on merits A according to law.
In our view the prayer for amendment was rightly allowed and no case is made out for interference by this' Court. The petition is dismissed.
Leave refused.
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