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Writ Petition No. 4235 of 1984, decided on 23rd February, 1985.

---S. 115 & O. XLIII, Rr. 3 & 4--Jurisdiction--Improper exercise of- Revisional jurisdiction--Requirements contemplated by 0. XLIII, Rr. 3

4, Civil Procedure Code, 1908, held, were inapplicable to exercise of revisional jurisdiction.

1984 C L C 3270 rel.

---0. VI, R. 17--Amendment of pleadings--Duty of Court--Purpose of provisions for a1mendment of pleadings being promoting ends of justice and not defeating same, Courts, held, could permit amendment in pleadings at any stage, provided intended amendment was necessary for purpose of determining real question of controversy between parties-Court at time of granting or refusing amendment in pleading should not have any concern with alleged truthfulness or falsity of claim to be asserted--Such matter was to be left for examination at trial.

A I R 1978 S C (Ind.) 484 ref.

---0. VI, R. 17--Amendment of "plaint" and "written statement"- Distinction--Amendment of written statement was different from that followed in allowing amendment in plaint--Plaintiff could snot be allowed to amend plaint so as to alter materially or substitute cause of action or nature of claim, while in defence or written statement, adding new ground of defence or substituting or altering defence, held, would not raise same problem as adding, altering or substituting new cause of action--Courts were required .to be more liberal in allowing amendment in written statement than that of plaint.

---Art. 199--Civil Procedure Code (V of 1908), S. 115 & O. VI, R.17- Constitutional jurisdiction exercise of--Amendment of written statement- Powers of Courts--Rules of Courts being provisions intended to secure proper administration of justice and Courts being not slaves of procedure, full powers of amendment vested in Courts must be enjoyed and should always be liberally exercised--Order of appellate Court below, refusing interference in revisional jurisdiction against incorrect order of trial Court whereby trial Court refused amendment of written statement was set aside by High Court in constitutional jurisdiction.

Sh. Allauddin v. Central Exchange Bank Limited, Lahore P L D 1960 Lah. 446 ref.

Muhammad Aqil Mirza for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd February, 1985.

This application under Article 199 of the Constitution of Pakistan read with Article 9 of the Provisional Constitution Order, 1981, is directed against order dated 17-4-1984 of the learned Additional District Judge, Gujrat, refusing interference in revisional jurisdiction with order dated 27-6-1983 of learned Civil Judge, Mandi Bahauddin, whereby he, dismissed an application for amendment of written statement filed in pre-emption suit.

2. Mst. Sardar Begum claimed ownership in respect of land measuring 1 Kanal with house and shops constructed thereon, part of Khasra No. 2270/2, situate in the area of Mandi Bahauddin, in a suit instituted by her against Murad Ali son of Muhammad Hayat. The suit was instituted on 29-3-1971 in the Court of Civil Judge, Mandi Bahauddin. Copy of the plaint is Exh.D.3. Murad Ali conceded the claim of Mst. Sardar Begum and in the result, a consent decree was passed in favour of the plaintiff on 24-5-1971. Copy of written statement is Exh.D.4. Certified copy of the plan of the property in dispute is Exh.D.5. Consent decree, is Exh.D.2. Malik Khalid Mahmud, then instituted a civil suit to pre-empt the property transferred by his father Murad -All in favour of Mst. Sardar Begum through a consent Court decree dated 24-5-1971. Suit was instituted on 2-6-1980. Written statement, denying the averments made in the plaint, was filed on 16-7-1980. Necessary issues arising from the pleadings of the parties were also framed on 16-7-1980. Plaintiff /pre-emptor closed his evidence on 1-7-1981 and then the suit was adjourned for defendant's evidence. Defendant has not. so far opened his defence. However, on 5-2-1983, Mst. Sardar Begum, defendant, applied for permission to amend the written statement. In the amendment application, permission was sought to add:-

(i) That property in dispute consisted of 5 shops constructed 10 years ago and as such was immune from pre-emption;

(ii) Property-in-dispute, has, because of its situation, become "Urban Immovable Property" and in the absence of "custom" could not be pre-empted.

3. Plaintiff seriously opposed the amendment. Learned Civil Judge vide order dated 27-6-1983, did not accord permission and, in consequence dismissed the petition seeking amendment. Revision filed in the Court of Additional District Judge, Gujrat also failed and was dismissed on 17-4-1984. In the result order of trial Judge was maintained. Learned Civil Judge refused amendment on the ground that the defendant in her written statement had 'admitted' that the property in dispute was a house and, through amendment, the defendant could not be permitted to withdraw the admission made' by her. Learned Additional District Judge refused interference on grounds, firstly, defendant /applicant had not complied with the mandatory requirements of Rules 3 and 4 of Order XLIII, Code of Civil Procedure, secondly, the impugned order did not suffer from any jurisdictional error; thirdly, admission on facts, could not be withdrawn. In order dated 17-4-1984 trial Court's order was maintained. Correctness of the impugned orders passed by the trial Court maintained in revision, has been assailed in constitutional jurisdiction at the instance of defendant Mst. Sardar Begum. Respondent Malik Khalid Mahmud, despite personal service has not entered appearance. He is proceeded against ex parte.

4. x x x x x x x x x x

5. I have examined the pleadings of the parties in the light of orders passed by the Courts below and, I am of the view that learned counsel, was on very firm and strong grounds when he urged that the impugned orders were result of improper exercise of jurisdiction. So far as applicability of Order XLIII, Rules 3 and 4 of the Code was concerned, this Court after exhaustive survey of precedent case-law and the relevant provisions having bearing on the subject, found in 1984 C L C 3270 that the aforenoted rules, were inapplicable to exercise of revisional jurisdiction. I have nothing to add but express my respectful agreement with the views expressed in the aforesaid decision by my learned brother Fazle Mamud, J. Question, then was whether amendment, was rightly refused. It is evident from the pleadings that the pre-emption suit was instituted in respect of that very property which was once owned by Murad Ali, father of Malik Khalid Mahmud, later transferred to Mst. Sardar Begum through a consent decree passed in a suit for declaration filed by Mst. Sardar Begun., against Murad Ali. Proceedings, conducted in that suit, have already been alluded to. In the copy of plaint, it was clearly mentioned that the property consisted of 5 shops. This fact was not denied by Murad Ali in his written statement when he conceded the averments made in a plaint. On the basis of his concession a consent decree followed on 24-5-1971. Nazir Ahmad and Karam Ali also admitted that the property, consisted of shops. In heading of the plaint, however, the property was described as vacant site with Malba and construction. In para. 1 of the plaint, in the suit for pre-emption, however, it was described as a house comprised of 5 rooms. Defendant in her written statement, did not specifically assert that the property was different from the one described in the plaint. Learned Civil Judge took it to be an 'admission' incapable of an explanation and thus proceeded to dismiss the amendment application. As observed, the view of the learned Civil Judge was that once the defendant admitted that property was a house, he could not be permitted through amendment to withdraw this important admission and then state that the property, consisted of shops rendering it immune from law of pre-emption. Similar were the observations with regard to second plea that the property had become "urban immovable property". Power to allow amendment, in pleadings, is available under Order VI, Rule 17, Code of Civil Procedure. It reads:-

"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."

In terms of the rule, the Court may permit amendment in the pleadings x at any stage, provided that amendment was necessary for purpose of determining the real question in controversy arising between the litigating parties. Emphasis is placed on the amendments which are necessary for the correct and proper decision of the suit. Provisions for the amendment of pleadings subject to such terms as to cost and giving all parties concerned necessary opportunities to meet exact situations, resulting for promoting the end-, justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially, the shortcomings can certainly be removed generally by appropriate steps taken by a party which must no doubt pay for inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. This has been so held in AIR 1978 S C (Ind.) 484. The Court at the time of granting or refusing amendments in pleadings is not concerned with the alleged truthfulness or falsitiy of the claim to be inserted. That is a matter to be left for examination at the trial. It is well-settled that when considering whether the amendment should be allowed, the Court need not go into the alleged falsity of the case in the amendment nor the Court ought to give its findings on the merits of the amendment sought, for without first allowing amendment, framing the issues thereon and allowing both the sides to adduce evidence. Where the defendants seek amendment, considerations that weigh with the Court in allowing amendments in the written statement are not to be covered by the same principle as amendment of a plaint. A plaintiff cannot be allowed to amend his plaint so as to alter materially or substitute cause of action or nature of his claim, but the same principle will not be applicable to the amendment of the defence or written statement. Adding a new ground of defence or substituting or altering a defence, does not raise the same problem as adding, altering or substituting a new cause of action. The Courts, therefore, are inclined to be more liberal in allowing amendment in defence than of the plaint. Repeatedly, it has been observed by the superior Courts that Courts are not slaves of procedure, for all rules of Courts are nothing, but provisions intended to secure the proper administration of justice and it is, therefore, essential that the rules should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised. In Sh. Allauddin v. Central Exchange Bank Limited, Lahore P L D 1960 Lah. 446 the Court observed, "it is a general rule that Courts should be lenient towards applications for amendment of pleadings. It does not even matter very much if the application has been put in after delay provided it is bona fide." In the latter part of the report, the Court emphasised "but if it is sought by an amendment to take a plea of fact which is inconsistent with plea already taken, it is necessary for the applicant to satisfy the mind of the Court that the original written statement was the result of misapprehension. A good deal of authority can be cited in support of the purpose that inconsistent pleas cannot be taken, but this general proposition is subject to the provision "that if the original plea was due to misapprehension, it may be withdrawn" . However, it must be shown that there was misapprehension".

6. Defendant has, so far, not started leading her evidence. From the statements of the P.Ws. and the documents brought on file, it appears, that the property consisted of shops. Defendant, could legitimately take advantage of this material and, in defence, raise the plea that the property was of- commercial nature, and not subject to the law of pre-emption. There was no such unqualified admission in the written statement providing an unsurmountable hurdle in the way of the defendant from taking additional pleas as he was trying to do in his application for amendment. Pre-emptor, was laying his hands on the property, transferred by- his father and obviously knew its character.

Defendant, in such circumstances cannot be penalised and prohibited from pleading correct facts in support of his defence so as to defeat a claim filed against her. Impugned orders examined in the light of material available on record, cannot be found to have been correctly and competently passed by the Courts below. Jurisdiction in refusing amendment in the written statement, has not been exercised, keeping in view the relevant considerations that a Court should have in mind when allowing or refusing amendment applications. This being the case, to allow them to stand, would cause serious miscarriage of justice. Petition is allowed, impugned orders are set aside and the case is remitted to the trial Court to re-decide the application for amendment in the light of the observations made above. Since the plaintiff has not appeared to contest the petition, I make no order as to costs, Petitioner is directed to appear before the trial Court on 31-3-1985. Records be also returned.

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