Find a Lawyer

Writ Petition No. 11053 of 1980, heard on 25th January 1980.

‑‑ O. VI, r. 17‑Amendment of plaint‑Application to seek ,permission for amendment of plaint‑Mere delay in filing application‑ Not sufficient ground for its rejection‑Amendment in pleadings allowed by Courts in suitable cases even in appeals and revisions‑‑[Plaint].

--‑‑O. VI, r. 17 and Constitution of Pakistan (1973), Art. 199‑Amend ment of pleadings necessary for finally determining question of succession‑Defence not likely to be prejudiced, proposed amend ment neither changing cause of action nor amounting to setting up of new case by petitioner‑Lower Courts, held, failed to exercise jurisdiction by not allowing amendment‑Case fit for interference by High Court in exercise of constitutional jurisdiction‑Amendment allowed‑[Pleadings].

Rafiq Ahmad Bajwa for Petitioner.

Nemo for Respondents.

Date of hearing: 25th January, 1982.

In this writ petition, Muhammad Siddique Khan petitioner, has challenged order dated 5‑11‑1979 passed by Civil Judge, Gujranwala, whereby petitioner's prayer for amendment of the plaint in the suit for possession of land and upper portion of a residential house instituted by him against Mst. Fatima Begum respondent was disallowed and order dated 16‑7‑1980 passed by the learned Additional District Judge, Gujranwala dismissing the petitioner's revision petition against the aforementioned order on the ground that the said orders were passed without lawful authority by the Courts referred to above.

2. The relevant facts giving rise to this writ petition are that the petitioner instituted a suit for joint possession of land measuring 17 kanals situated in Khiali Shahpur, Tehsil and District Gujranwala and the upper portion of residential house situated in Mohallah Narnak Ghulla Mandi, Rawalpindi claiming 3/4th share in the said property being a collateral of Muhammad Ismail Khan the last male owner of the property. He also challenged the will allegedly made by Muhammad Ismail Khan in favour of Mst. Fatima Begum on 7‑6‑1966 which was got registered on 23‑7‑1966, The suit was contested by the respondent. On 23‑6‑1979 petitioner submitted an application under Order VI, rule 17 and section 151, C. P. C. in the trial Court for seeking permission to amend his plaint so as to include land measuring 5 kanals 15 marlas comprising Khasra No. 900 in the suit. property, as according to him the said Khasra number could not be mentioned earlier in the plaint inadvertently. This application was dismissed by the learned trial Court on the ground that the petitioner had sought permission for amendment of the plaint at a very late stage and that no plausi ble explanation was given by him as to why the land comprising Khasra No. 900 was not included in the suit property at the time of the filing of the suit. The petitioner filed a revision petition against the aforementioned order but the same was dismissed by the learned Additional District Judge on the ground that the application for amendment of the plaint was filed at a late stage and that the proposed amendment would deprive the respondent of a valuable right which had accrued to her on account of lapse and omission on the part of the petitioner to include the entire land of Muhammad Ismail Khan deceased in the plaint.

3. Mst. Fatima Begum respondent has not contested this writ petition as she has failed to appear in this Court after service of notice.

4. I have heard the learned counsel for the petitioner. There is no doubt that the application for amendment of the plaint was filed by the petitioner after a considerable delay but the mere delay in filing the application was not a sufficient ground for its rejection because in suitable cases amend ment of pleadings have been allowed by the Courts even in appeals and revisions learned counsel for the petitioner has contended that the omission to include Khasra No. 900 in the suit property by the petitioner was inadvertent as the copy from register Haqdaran Zamin pertaining to the year 1973‑74 supplied to him by the Patwari did not show that the land comprising the aforementioned Khasra number was also owned by Muhammad Ismail Khan deceased and had devolved on the petitioner and the respondent after his death. This contention is supported by Annex. F'. It was in the register Haqdaran Zamin, of year 1977‑78 that the aforementioned Khasra number was shown to be owned by the petitioner and the respondent in equal shares as is evident from the photostat copy filed as Annexure G' by the petitioner. It has been noticed that both the learned trial Judge and the learned Additional District Judge have failed to consider that the amendment sought by the petitioner was necessary for finally determining the question of succession to the estate of Muhammad Ismail Khan deceased between the parties. The respondent was not likely to be prejudiced in her defence by the amendment of the plaint, as the petitioner wanted to include certain property admittedly jointly owned by the parties in the suit property which due to wrong entries in the copy of the register Haqdaran Zamin supplied to him had been omitted in the plaint. The learned Additional District Judge to his impugned order has not mentioned the legal right of the respondent; of which she would be deprived in the event of amendment of the plaint. Since the proposed amendment neither changed the cause of action nor amounted to setting up of a new case by the petitioner,, the learned trial Judge and the learned Additional District Judge have failed to exercise jurisdiction under Order VI, rule 17, C. P. C. It is a fit case for interference: by this Court in the exercise of its Constitutional jurisdiction.

5. For the foregoing reasons, the impugned orders are declared to have been passed without lawful authority and the petitioner is allowed to amend the plaint as prayed for by him in his application dated 23‑6‑1981.

M. Y. H.