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Constitution Petition No. D-207 of 1984, decided on 8th May, 1984.

--O. VI, r. 17--Provisional Constitution Order (1 of 1981), Art. 9- Amendment of plaint allowed during pendency of suit--Order set aside in revision--Constitutional petition--Matter being very intimately connected with main issue in original plaint, allowing amendment not to alter nature of suit--Cause of action could be agitated in suit--Order granting amendment, held, valid.

Shafaat Hussain for Respondent No. 1.

Zaheeruddin Khan for Respondent No. 2.

Amir Ahmed Khan for Respondents Nos. 3 and 4.

.--This petition was admitted by us on 12-3-1984. On the same day we had stayed the proceedings in the suit in relation to which this petition had been filed. Such stay was subject to notice. On 2-5-1984 the counsel who are appearing today before us had appeared. We were of the view that the point involved was very short one and we had put all the advocates on notice that the matter may also be finally heard on the next date when the hearing of the application was fixed. Today Miscellaneous Application No.450/84 was fixed for hearing, but by consent of all counsel we have heard the matter finally.

The brief facts of the case are that the petitioner and respondent No.4 and probably a few other persons also were seeking transfer of premises from respondent No.2. The petitioner n; Some stage came to believe that respondent No.2 was not inclined to transfer the premises in his favour but was inclined to transfer the same to respondent No.4 and in such circumstances he filed Suit No.3635/80 before the Vth Senior Civil Judge at Karachi seeking a permanent injunction to restrain respondents Nos.2 and 4 from invading his rights to such property During the pendency of the suit the petitioner came to know that respondent No.2 had by a registered deed transferred the property in question to respondent No.4. In these circumstances the petitioner made an application before the Court under Order V1, rule 17, C.P.C. seeking an amendment by adding a paragraph to challenge such act of respondents Nos.2 and 4 whereby the property in question, had been transferred by respondent No.2 to respondent No.4 by registered deed. Such application was granted by the Senior Civil Judge in spite of opposition. The main thrust of the opposition was that by allowing such amendment the cause of action underlying the suit had been varied and therefore such amendment would not fall within the scope of Order VI, rule 17, C.P.C. Respondent No.4 was aggrieved by said order so that he filed the revision application which was registered as Civil Revision Application No.169/82. This revision application came to be heard by the First Additional District Judge, Karachi who by 'an order, dated 1-7-12-1983 allowed the revision application and set aside the order of Senior Civil Judge whereby an amendment had been permitted.

It is in these circumstances that the petitioner feeling aggrieved has filed the present constitutional petition.

Mr. Zaheeruddin Khan appearing for respondent No.2 has filed a counter-affidavit of one Abdul Tahim Tejani who is the Secretary of the Karachi Port Trust. In the counter-affidavit it is stated that the petition was misconceived arid bas no merit. In paragraph 3 of the counter-affidavit it is stated that respondent No.2 has been and is still ready and willing to recognize the petitioner as a co--lessee of the plot in question. The long and short is that the relief claimed in this petition is not opposed by Mr. Zaheeruddin Khan.

Mr. Amir Ahmed Khan has filed a counter-affidavit of Mir Hassan which is fairly long. Most of the contents of this affidavit relate to the merits of the case itself and entitlement of parties to the premises in question and with such aspect of the case we are not concerned with the present petition. We are concerned with facts only to the extent to which the same are relevant for determination about the correctness of the order of the Additional District Judge on the revision application which was filed to challenge the allowing of making an amendment. In regard to the amendment itself Mr. Amir Ahmed Khan attempted to argue by reference to conduct of the petitioner and also the merits of entitlement of the two parties. To that extent we would not be concerned because any expression of opinion on the point of rival entitlement flight prejudice one or the other party in the suit that is still pending.

The point which is germane to the decision of this petition is about the correctness and propriety of the order whereby the amendment was allowed to be made. It is common case between the parties that there was a dispute between the petitioner and respondent No.4 in regard to the obtaining of lease of the premises from respondent No.2. To get the said dispute resolved a suit was filed by the Petitioner before the Civil Judge. During the pendency of the suit respondent No.2 actually transferred the property by way of lease to respondent No.4. In these circumstances it would appear that during the pendency of the suit the petitioner derived knowledge that the property had teen transferred by respondent No.2 to respondent No.4 by a lease deed. The petitioner was interested in having this lease deed adjudged, Illegal or having no effect. Such matter was very intimately connected with the main issue in the original plaint. It cannot be said that by following such an amendment the nature of the suit has been altered or the cause of action was so different that it could not be agitated in the said suit. In these circumstances we are clearly of the view that the order of the learned Senior Civil Judge allowing the amendment of the plaint was justified. We are therefore of the view that this order was not liable to be recalled or set aside by the revisional Court. We, therefore, declare that the order of the First Additional District Judge, Karachi in Civil Revision Application No.169/82 is of no legal effect, find is set aside. The result will be that amendment that had been' Frayed for by the petitioner and granted by the Vth Senior Civil Judge, Karachi in Suit No.3635/80 is field valid. The petition is allowed to such extent.

The costs of the petition shall be borne by respondent No.4. We award no costs against the respondent No.2 because they have not contested the petition.

M.I Order accordingly.

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