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Revision Application No. 179 of 1982, decided on 31st March, 1983,

‑‑ O. VI, r. 17‑Amendment of pleading‑‑Principle‑Amendment not changing nature of suit and merely introducing additional relief which in facts, circumstances and pleadings should have been asked for, amendment, in such circumstances, held, be allowed.‑[Pleading].

‑‑‑O. VI, r. 17‑Amendment of pleadings‑Petitioners undisputedly found in possession of property in question transferred to them by Settlement Department and only dispute being that P. T. D. issued to respondent in respect of another ‑property, survey numbers have 401 been mentioned which allegedly relate to petitioner's property‑ Amendment based on facts sought for: held, merely of technical nature allowed, in circumstances.‑[Pleading):

P L D 1963 S C 191 ; P L D 1973 S C 507 ; Rajab Ali v. Gujrat Bus Service P L D 1961 Kar. 486 ; Syed Mutasil Shah v. Khawaja Rafiullah P L D 1975 Kar. 930 ; M/s. Trans Oceanic Steamship Co. Ltd. v. Tayoob Moosa & Co. P L D 1959 Kar. 399 ; Karamat Ali v. Muhammad Yousuf P L D 1963 S C 190 ; Muhammad Zahoor v. Mst. Thakrani II M I A 468 and Charandas v, Ameer Khan and others A I R 1921-P‑C‑, 540 ref.

‑‑ O. VI, r. 17‑Amendment of pleadings‑Question whether amendment of pleadings be permitted, held, is within discretion of Court and unless discretion is found perverse, no interference can be made.‑[Pleading].

Executive Engineer, Vth Provincial Board, Lahore v. Messrs Combined Traders, Lahore 1980 S C M R 1961 fol.

Anwer Jamali for Applicants.

Hasan Mahmood Baig for Respondents.

Date of hearing: 2nd February, 1983: ‑

This Revision Application has been filed against the order of the Ist_. Additional District Judge, Hyderabad, whereby the petitioner's,. application under Order VI, rule 17, C. P. C. has been rejected. .

Briefly, the facts are that, House No. B/80 situated at New Hala, District Hyderabad was transferred by the Settlement Authorities to Abdul Shakoor and Muhammad Sharif. Under an agreement of associa tion dated 9th November, 1963 these transferees surrendered their rights and shares in the aforestated property in favour of the petitioners. This agreement was accepted by the Settlement Authorities and the petitioners were delivered vacant possession of the entire house: There were three shops adjacent to the petitioners' house bearing Custodians Nos.. B‑75, B‑76 and B‑77 which were purchased by respondent No. 1. It has been alleged that the respondent No. 1 got City Survey No. 560 inserted in his Permanent Transfer Deed in respect of property bearing Custodian No. B‑77. Likewise, the Survey Nos. 561, 565, 566 and 567 were also got inserted for property bearing Custodian No. B‑76 and City Survey No. 562 was inserted for custodian No. B‑75. It has been alleged that the inser tion of these survey numbers in the P. T. D. of respondent No. 1 was made without any Roobkari or any order of competent Settlement Authority and even such insertion and entries were not signed by any Settlement Authority, therefore, the entries relating to these survey numbers were illegal, and void ab initio. It has been alleged that on the basis of these entries in the P. T. D. the respondent No. 1 tried to dispossess the petitioners from the house. When the petitioners came to know about these entries, they filed a suit with the following prayers :‑

(1) Declare that the property House Custodian No. BJ80 corresponds to City Survey Nos, 554, 355, 556 and 557 New

(2) Any other relief which the Honourable Court may deems fit and proper.

(3) Award the costs of the suit.

The respondent No. I filed written statement and dented the allega tions made by the petitioners stating that the properties were disposed of not as shops, but as house. It was pleaded that the City Survey Number was inserted in his P. T. D. by the Settlement Authorities in the ordinary course. It was further pleaded that the suit is barred under section 42 of the Specific Relief Act. The learned Trial Court dismissed the suit on merits and also observed that as the petitioners bad filed suit for declara lton without any further relief. the suit was barred under section 42 of he Specific Relief Act. The petitioners filed an appeal before the 1st Additional District Judge and application under Order VI, rule 17, C.P.C. to amend the plaint by adding the following prayer

"It may be ordered that the entries C. S. Nos. 553 to 557 made in the P. T. D. by Abdul Salam son of Abdul Aziz in respect of Custodian No. B‑76 New Hala may be deleted."

This application was dismissed by the impugned order. The main reason for the dismissal was that the application has been filed after six years of the filing of the appeal. It was further held that the prayer sought to be added will change the nature of the suit.

Mr. S. A. Jamali, the learned counsel for the petitioners has contended that as the petitioners are in possession of the house, the amendment sought will not change the nature of the suit, and further that the amendment will merely obviate a technical objection raised by the respondents. The learned counsel has referred to P L D 1963 S C 191 and P L D 1973 S C 507. Mr. Hassan Mahmood Baig, the learned counsel for the respondent, on the other hand has contended that as the applica tion has been filed after about seven years, 'and no explanation for such delay has been given it was rightly dismissed. Reliance has been placed on Rajab Ali v. Gujrat Bus Service P L D 1961 Kar. 486. In this case, the respondent had filed a suit for possession, rent and mesne profit which was decreed. In appeal defendant/appellant filed application for amendment of written statement.‑ The Court noticed the incorrect facts and contradictory pleas raised by the defendant/appellants and dismissed the application mainly on the ground that it was belated and was intended to delay the proceed ings. In this case by amendments new plea was also raised. The main reasons which persuaded the learned Bench to dismiss the applica tion was expressed in the following manner: ‑

"We have formed the impression that the real object of the applica tion is simply to delay the disposal of the present appeal, as the defendant has continued in possession of the suit land for these years and presumably hopes to continue if the proceedings are prolonged due to acceptance of the application for amendment. If indeed the defendant considered that any amendment in his pleadings was called for, there is no explanation why he did not move earlier, or in any case, at the time when the appeal was filed in this Court. We also observe that as regards the question of compensation to the defen dant, this plain was not raised at all at the trial, and it must be taken to have been abandoned, and cannot be allowed to be revived at this stage".

In the present case, the petitioners are in possession of the property, and no mala fide can be attributed to them, for making this application, which according to the petitioners, they have filed by way of abundant caution and to meet the technical objection raised by the respondent No. 1. In these circumstances, the delay cannot be said to be fatal or negligent.

The learned counsel for the respondent No. I referred to Syed Alutasil Shah v. Khawaja Rafrullah P L D 1975 Kar. 930. In this case, an application for amendment of the plaint filed in appeal was rejected with the following observation

"The order of the District Judge, Dadu, dated 6th April, 1963 in very clear terms, referred to the existence of this registered sale deed and in fact the District Judge has used evidence of this docu ment as one of the grounds on which he has refused to issue any injunction against the respondent No. 2, as had been prayed for by the appellant. The appellant had failed to take notice of this fact all this time when he should have amended this plaint so as to include the relief of getting his document cancelled. At this late stage, during the pendency of the appeal, at least the interest of the respondent No. 2 are seriously to be affected and his position is bound to be greatly jeopardised, as this amendment would amount to introducing new subject‑matter and a new relief against him which is effectively changing the whole character of the suit."

By the amendment sought by the petitioner, neither subject‑matter, nor the character of the suit will be changed. No new facts are introduced, as were sought to be introduced in this case. The observation in this judgment. therefore, cannot be applied to the present case. The learned counsel also referred to the case of Messrs Trans Oceanic Steam Co. Ltd. v. Tayoob Moosa and Co. P L D 1959 Kar. 399. This is a very short judg ment laying down a principle which cannot be disputed, but as facts have not been stated in detail, it cannot be applied to the present case. The learned counsel for the respondent has relied upon Karamat Ali v. Muhammad Yonsuf PLDl963SC190 where the appellant had applied for amendment of the plaint by adding a prayer of possession. This application was opposed on the ground that it was belated and the prayer was barred by limitation. While referring to Muhammad Zahoor v. Mst. Thakrani IIMIA4 and Charandas v. Ameer Khan and others A I R 1921 P C 540 the following observations were made :‑

"That this Court possesses similar power to do complete justice cannot be disputed. In exercising this power, no doubt this Court would be reluctant to allow an amendment which would the effect of totally altering the nature of the suit or of taking away a valuable right accrued by lapse of time, but where circumstances of a particular case it would be plainly inequitable to refuse such a relief this Court will not hesitate to do what the Judicial Committee did in the case of Muhammad Zahoor Ali Khan v. Mst. Thakooranee Ruiia Koer.

The present in our view, is a case which comes within this exception. The amendment prayed for does not seek to alter the nature of the suit. It only brings in an additional claim which the appellants should have asked for in the suit. Ever since 1937, when they auction‑purchased the properties in dispute they have consistently beet endeavouring to assert their own right in these properties and it would now be a great hardship to defeat that right merely on this technical ground. We are, accordingly disposed to grant them leave to amend their plaint by adding a prayer for KHAS possession and to pay the additional court‑fees as in a suit for possession, but upon the condition that should pay to the respon dents appearing in this appeal their costs both in this Court as well as in the Courts below as a condition precedent."

The principle laid down is that where the amendment does not Chang the nature of the suit and merely introduces additional relief which in the facts, circumstances and pleadings should have been asked for, the amendment will be allowed. In the present case, it is an undisputed fact that the petitioners are in possession of the property, which was transferred to them by the Settlement Authorities. The only dispute is that in P. T. D. issued to the respondent No. 1 in respect of another property, survey numbers have been mentioned which allegedly relate to the petitioner's property. On the basis of these facts as stated in the plaint the amendment sought is merely of technical nature and it will be inequit able if the petitioners are disentitled of their right merely on a technical plea, that no prayer for cancellation of the entries has been made by the petitioners. The petitioners do not wish the change any averment in the plaint. They only seek that a consequential relief may be added by way of abundant caution. Mr. Hassan Mahmood Baig has referred to Executive Engineer Vth Provincial Board Lahore v. M/s. Combined Traders Lahore 1980 S C M R 1961 where it was held that the question, whether amendment of pleadings be permitted is within the discretion of the Court and unless it is established that the discretion is perverse, no interference can be made. In the present case, as discussed above, the learned Ist Additional District Judge has not considered ail the aspects of the case, but has merely confined himself to the technicalities and has therefore failed to exercise his discretion properly. The Revision Application is, therefore, allowed. The petitioners are allowed to amend the plaint on payment of cost of Rs. 750 to respondent No. 1.

M. Y. M. Application allowed.

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