Find a Lawyer

Writ Petition No. 728 of 1981, decided on 16th November, 1981.

‑‑S. 115‑Words and phrases‑Words "case" and "case decided" Meaning‑Plaintiff filing application raising controversy between parties whether sufficient grounds for allowing amendment exist or not‑Controversy affecting rights of parties‑Order allowing amendment, held, falls within scope of "case decided".‑[Words and phrases].

It is well recognized that the word "case" does not always mean the whole suit, its meaning is wide enough to include a decision on any sub stantial question in controversy between the parties affecting their rights, even though the same may be of interlocutory one and interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order would be a "case decided" within the meaning of section 115, C.P.C.

Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd. 1971 SCMR507ref.

‑‑S. 115‑Revision, scope of‑Conditions expressly laid down in S. 115 satisfied‑Order resulting or likely to result in gross injustice or irreparable injury not remediable‑Such order, held, open to ' revision.

‑‑0. VI, r. 17‑Amendment of plaint‑Discretion of Court‑To be exercised judiciously and liberally‑Power not given to allow amend ment to enable one distinct cause of action to be substituted for another introducing a wholly new and inconsistent case.‑[Plaint].

‑‑S. 115 and Provisional Constitution Order (P. O. 1 of 1981), Art. 9‑Amendment allowed by trial Court "case decided"‑Other conditions having not been satisfied and order of amendment not resulting in injustice or irreparable loss‑Such order not open to revision‑Order of Additional District Judge passed in revision in such case, held, not sustainable and set aside.

Mian M. Zafar Yasin for Petitioner.

Asaf Saeed Khan Khosa for Contesting Respondents.

Date of hearing : 16th November, 1981.

This is writ petition under Article 9 of the Provisional Constitution Order, 1981, whereby Nazir Ahmad petitioner wants this Court to declare the order dated 2‑7‑1981, passed by Respondent No. 1, Additional District Judge‑1, Muzaffargarh in revision, to be illegal and of no legal effect.

2. The facts leading up to this petition are as follows :

On 29‑3‑1979, Abdul Majid, Muhammad Sharif, Muhammad Hanif and Bashir Ahmad, Respondents Nos. 2 to 5, purchased land measuring 139 kanals 12 marlas for ostensible price of Rs. 1,20,000 from one Barkat Ali. On 2‑4‑1979, Nazir Ahmad, pztitioner filed a suit for possession through pre‑emption against Abdul Majid, Muhammad Hacif and Bashir Ahmad. It is to be noted that the 4th vendee namely, Muhammad Sharif was not. impleaded as defendant. On 14‑9‑1980, the petitioner moved an application for the amendment of the plaint. He sought permission to write Abdul Majid wow' Muhammad Sharif in place of Abdul Majid lud Muhammad Sharif. The learned Civil Judge allowed the amendment on 30‑11‑1980. The, petitioner filed an amended plaint on 11‑1‑1981 and in the title he wrote Abdul Majid wow Muhammad Sharif in place of Abdul Majid lud Muhammad Sharif, in fact, he deleted the word lud' and added para. No. 5 as follows :‑

3. Feeling aggrieved from this order, the petitioner filed revision under section 115, C.P.C. and the same was accepted by the learned Addi tional District Judge, Muzaffargarh, on 2‑7‑1981. Hence this petition.

4. The only objection raised by Mian M. Zafar Yasin, learned counsel on behalf of the petitioner is that the revision being not compe tent, the impugned judgment of the learned Additional District Judge is without lawful authority. He argues that the impugned order allowing amendment in the plaint is not a "case decided" within the terms of section 115, C. P. C. hence not open to revision. Reliance is placed on a case reported as Ch. Ahmad Din and 2 others v. The Australasia Bank Ltd. (1971 S C M R 507).

Mr. Asif Saeed Khan Khosa, learned counsel for the Respondents Nos. 2 to 5, has contested the position adopted by Mian M. Zafar Yasin, learned counsel for the petitioners. He contends that the matter was one within the discretion of the learned Civil Judge but in the exercise of that discretion a material irregularity had been committed by the trial Court calling for correction by the learned Additional District Judge in his revisionary jurisdiction.

5. I have heard the learned counsel for the parties at length and gone through the material available on record of this petition. I deem it proper to reproduce here section 115, C.P.C.

6. It is well recognized that the word "case" does not always mean the whole suits, its meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though the same may be of interlocutory one and interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order would be a "case decided" within the meaning of section 115, C.P.C. but it would be open to revision only if the other conditions expressly laid down in section 115, C.P.C. are satisfied and the s order has resulted or is likely to result in such gross injustice or irrepar able injury cannot be remedied otherwise than the revisional jurisdiction at this stage.

7. After having going through the impugned order I find that the plaintiff filed an application which raised a controversy between the parties on the question whether there was sufficient grounds for allowing the amendment or not. The controversy affects the rights of the parties and the decision on the question was arrived at by the Court after the state of facts were judicially considered. Therefore, the order allowing amendment in the instant case is within the scope of words "case decided"

8. For the foregoing reasons I am of the opinion that the revision before the learned Additional District Judge, was entertainable. The matter does not end here and it is yet to be seen whether the impugned order was subject to the provisions of section 115, C.P.C. and tile question that fails for determination is whether the learned trial Judge in allowing this amendment was guilty of a material irregularity or illegality in the exercise of his jurisdiction or not.

In my opinion the question should be answered‑in the negative. Order VI, rule 17, C.P.C. reads as follows :‑

"The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

9. In the instant case, the petitioner/plaintiff was allowed to amend the petition and thereby to delete the word lud'. He wanted to write Abdul Majid wow Muhammad Sharif in the place of Abdul Majid 'walud' Muhammad Sharif. The learned trial Judge had a discretion in the matter. In para. No. 3, he stated as follows :‑

"Attested copy of the sale‑deed shows that the plaintiff‑pre‑emptor has described the defendants' names according as they exist there. The mistake is that of the Copying Agency of the Registrar' and the plaintiff could not bona fide find out that four persons bad, in fact, purchased the suit land especially whets they live somewhere else than where the plaintiffs reside or where the suit land is suitor. The omission is a clerical error and a bona fide suitor ought not to be non‑suited for such an omission when even written statement has not been filed. Hence, this application is granted with costs."

The trial Court had a discretion which, of course, was to be used judiciously. It is well settled that the powers of allowing amendment should always be liberally exercised but nonetheless no power has been given to enable one distinct cause of action to be substituted for another in order to change, by amendment the subject‑matter of the suit and that amendment should not introduce a. new or wholly inconsistent case. In the instant case, the petitioner wanted to delete the word 6Al' in the title of the case. The written statement had not yet been filed. The learned trial Court applied its mind and gave reasons is support of his order allowing amendment.

I am, therefore, of the opinion that although, the impugned order was a "case decided" and the revision was entertainable, yet the other conditions expressly laid down in section 115, C.P.C. are not satisfied and the order has hot resulted or is likely to result in such injustice or irre parable injury as cannot be remedied otherwise than by the exercise of extraordinary jurisdiction under section 115, C.P.C. by the learned Additional District Judge at that stage. Since the learned trial Court neither exercised the jurisdiction not vested in it nor failed to exercise jurisdiction so vested and has also not acted in exercise of his Jurisdiction illegally or with material irregularity. The learned Additional District Judge, had no legal authority to set aside the order allowing amendment. I have gone through the authority cited by the learned counsel for the respondents : 1971 S C M R 507. I find that the same is on altogether different facts.

10. The result of the above discussion is that the impugned order of the learned Additional District Judge, dated 2‑7‑1981 is declared to have been passed without lawful authority and of no legal effect and is set aside. The order of the learned trial Judge allowing amendment automatically stands restored.

Before parting with the judgment I would like to observe that it would be open to the respondents/defendants to raise the plea of limita tion or partial pre‑emption if so advised and the learned trial Court would act in accordance with law.

This writ petition is accepted with no order as to costs.

M. Y. H. sPetition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.