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Suit No. 177 of 1975; decided on 2nd April, 1981.

‑‑O. VI, r. 17‑Amendment in plaint‑Oral request‑Amendment of plaint, held, can be granted on oral request of party subject to question of limitation.‑(Plaint). Normally amendment of the plaint is granted on a written application made by a party to the suit but the Court has ample inherent power to allow amendment of the plaint on an oral request of a party. It is not necessary in all cases that a written application for amendment of the plaint should be made. The Court has power to allow amendment on the oral request of the parties also.

Badradduja for Plaintiffs.

M. G. Dastagir for Defendant.

This suit was filed by one Muhammad Aziz Khan (hereinafter referred to as 'the plaintiff) against the defendant, Mst. Ahmed Bano, widow of Muhammad Sharif Khan. Plaintiff is the brother of Muhammad Sharif Khan, who died on 20th December, 1958. During the pendency of this suit the plaintiff died on 16th December, 1976 and legal representatives of the plaintiff were made plaintiffs in this suit pursuant to order dated 2nd October, 1977 of this Court. According to the plaintiff, the deceased had left a house being a double‑storeyed in house on a plot of 200 square yards bearing No. 2/27/C, in P. E. C. H. S. Society, Karachi. The prayer in this suit is for judgment and decree against the defendant for rendition of accounts and,. for partition of the said property. No specific prayer has been made for claiming the relief of possession. In the suit the plaintiff has claimed 3/4th share as brother of deceased Muhammad Sharif Khan taking up the position that the widow, the defendant, is entitled to the remaining 1/4th share in the property of the deceased, in accordance with the Muslim Law of Inheritance. The defendant has filed a written statement and the following preliminary objections were specifically raised by the defendant in her written statement :‑

(a) That the suit as framed is not maintainable.

(b) That the suit is time‑barred.

In para. 3 of the written statement it is averred by the defendant that she was the nominee of deceased Muhammad Sharif Khan and on his death she succeeded to the said property accordingly. In para. 10 of the written statement it is stated that the suit of the plaintiff is time barred, not maintainable and liable to be dismissed. In para. 11 it is mentioned that the defendant is the exclusive owner and in possession of the property in dispute and the plaintiff has no right, title or interest therein. In para. 14 it is mentioned that the property in dispute is a double‑storeyed house and could easily fetch a lac of rupees and, there fore, the suit has not been properly valued and the court‑fee paid is insufficient.

Following issues were settled by the Court on 16th February, 1976

(1) Whether the claim is barred by time

(2) Whether the defendant as nominee of the deceased under section 27 of the Co‑operative Societies Act, 1925 is entitled to the house to the exclusion of other legal representatives

(3) What share, if any, is the plaintiff entitled in the property

(4) Relief.

As observed, the aforesaid 4 issues were settled by the Court on 16th February, 1976. However, it follows from the order dated 26th February, 1976 that the learned counsel for the defendant had drawn the attention of this Court on 26th February, 1976 to the effect that one other issue arose out of the pleadings and that should be added to the issues already framed by this Court on 16th February, 1976. I may reproduce a paragraph from the order dated 26th February, 1976 :‑

"Mr. M. G. Dastagir has pointed out that on the pleadings of the parties one more issue arises namely. " Whether the suit has been properly valued" Accordingly I would add this issue

In the circumstances instead of 4 issues, by order dated 26th February, 1978 the 5th issue about the valuation of the suit was added.

3. This case was fixed for final arguments today, evidence of the parties having been recorded earlier. I have heard learned counsel at some length and when Mr. M. G. Dastagir learned counsel for the defendant, raised the plea that the suit was not maintainable as the plaintiff had not claimed the relief of‑ possession, it was pointed out to him that neither this issue specifically arose out of the pleadings nor any issue on this point was framed by this Court, and that even on 26th February, 1976, learned counsel for the defendant had only requested for addition of one more issue and that about the valuation of the suit, which request was accepted by this Court and an issue on valuation of the suit was added. On this, learned counsel for the defendant, stated that issues can be reconstituted at any time by the Court and this can be done even at the stage of arguments, but in any case he made a request orally for adding another issue. Learned counsel suggested that the following further issue may be framed by this Court :‑

"Whether the plaintiff is in possession If not, whether the suit is liable to be dismissed "

Request is granted and this additional issue is framed.

4. Learned counsel for the plaintiff had argued that the plaintiff, although out of actual possession, was in constructive possession of the property through the defendant as a co‑owner, and till 1966 through another co‑owner, Mst. Mahmoodi Begum, (mother of the deceased) who died on 15th October, 1966, and as such relief of possession had not been claimed. As the learned counsel for the defendant wanted an issue to be framed now on the question of possession not having been claimed by the plaintiff, learned counsel for the plaintiff made an oral request that the plaintiff may be allowed to amend the plaint claiming the relief of possession. Learned counsel for the defendant strongly opposed this request on the ground that such a request may not be granted and the suit should be dismissed on the ground that relief of possession has not been claimed. It was further contended that an amendment may not be allowed without a written application and that in any case such a request should not be granted as this would be a time barred relief. Normally amendment of the plaint is granted on a written application made by a party to the suit but the Court has ample inherent power to allow amendment of the plaint on an oral request of a party. I have by this very order allowed the oral request of the learned counsel for the defendant for addition of another issue. I find that it is not necessary in all cases that a written application for amendment of the plaint should be made. The Court has power to allow amendment on the oral request of the parties also. On the question of limitation, I agree with the learned counsel for the defendants that this is a point which requires consideration.

5. In the circumstances I allow the oral request of the plaintiff for amendment of the plaint for adding the relief of possession but subject to the question of limitation to be decided at the time of arguments. The amended plaint will be filed within two weeks and amended written statement will be filed within 3 weeks thereafter. The case will come up for framing. further issues on 17th May, 1981, on which date it will also be decided, after perusal of the amended pleadings, whether any further evidence is to be recorded or not.

M. Y M. Order accordingly,

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