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(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 7-10-1985, in C.R. 482 of 1985).

---Art. 185(3)--Civil Procedure Code (V of 1908), O.VI, R.17- Amendment of plaint--Leave granted to consider (i) whether Trial Court acted illegally in entertaining oral prayer for amendment of plaint, without there being written application in that behalf and without hearing appellants in opposition to such prayer; and (ii) whether respondent (plaintiff) was prevented from seeking amendment of plaint on account of stay of proceedings.

---O.VI, R.17--Amendment of plaint--Allowed on oral prayer without hearing appellants' in opposition to such prayer--Order impugned--Plea that order was passed without notice and in absence of appellants counsel, not sustained--Counsel is expected to remain present throughout time when judge is writing order in Court--Cause of action and facts constituting same were pleaded with sufficient particulars in plaint and no new case was being set up--Suit being pending in Trial Court and all defences open to appellants being available to them, no prejudice would be caused to them--Merely introducing an additional prayer in suit without changing substance and character of cause of action set out in plaint cannot be refused at any stage--O.VI, R. 17, C.P.C. confers an enabling power to Court to enable it to determine real questions in controversy between parties because law favours adjudication of disputes on merits and avoidance of multiplicity of litigation--Courts below not having erred in any way to exercise their discretion to permit plaintiffs to amend the plaint, impugned order upheld and appeal dismissed.

Muralidhar Chatterjee v. International Film Co. Ltd. A I R 1947 P C 34 distinguished.

Chandramma v. Gunna Seethan Naidu A I R 1931 Mad. 542 ref.

Keramat Ali and another v. Muhammad Younus Haji and others PLD 1963 S C 191 and Mst. Ghulam and others v. Sarsa Khan and others P L D 1985 S C 345 rel.

---O.VI, R. 17--Amendment of plaint-Delay in applying amendment or expiry of Limitation is no ground for refusing amendment in plaint--Rules of procedure are intended to secure proper administrator, of justice which demands that full power of amendment must be enjoyed by Court in order to achieve object of complete adjudication of disputes.

Mst. Ghulam and others v. Sarsa Khan and others P L D 1385 SC 345 rel.

A.K. Dogar, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Appellants.

Respondent in person.

Date of hearing: 21st May, 1986.

The legal question for determination in this appeal is whether the amendment in the plaint allowed by the trial Court to add the additional relief of possession in the plaint was justified and in accordance with law.

2. The material facts relevant in the present appeal are that there was a dispute between the parties in regard to 3 Kanals of land situated in Qutabpur Urban area which was litigated before the Settlement Authorities. However, this litigation culminated in favour of the respondent. The appellants challenged the transfer of the disputed land in favour of the respondent unsuccessfully in the constitutional jurisdiction of the High Court and also failed in their attempt to obtain relief from this Court, with the result that no dispute as to the title of the respondent in the disputed land exists.

3. After the conclusion of the litigation as to the rival claim of the parties to the transfer of the land in question, the respondent brought a suit in the Court of Civil Judge, First Class, Multan, against the appellants praying for the relief of mandatory injunction for the removal of constructions and structures erected on the land and for mesne profits with effect from 1st June, 1964.

4. The appellants resisted the suit and filed written statement in which they took a number of legal pleas, including the objection that no mandatory injunction can be granted to the respondent on account of the fact that for taking possession of the disputed land, he had an efficacious remedy available. The trial Court framed several issues arising out of the pleadigns of the parties. The parties adduced evidence on the issues which was also concluded. At the stage of the final arguments, the Court heard the parties on the question of form of the suit. It was contended by the appellants that the suit was bad in form as no relief of possession was prayed for. The respondent on the other hand maintained that there was no defect in the form of the suit which was proper and maintainable. The learned Civil Judge, after hearing the counsel for the parties started writing the orders and recorded his view that it was necessary for the plaintiff (respondent) to pray for the relief of possession, as in substance his suit was for possession of the disputed land. Before, however, the learned Judge could conclude the order the plaintiff's counsel prayed for permission to amend the plaint so as to include the relief of possession. On this the learned Judge agreeing with the submission of the plaintiff's counsel that the character of the suit will not be changed, that the prayer for amendment could not be made earlier because of the stay of proceedings and that grant of such permission to amend the plaint would result in avoiding multiplicity of suits, allowed the prayer to amend the plaint vide order dated 8th June, 1985.

5. Being aggrieved by the aforesaid order permitting amendment of the plaint the appellants filed a civil revision before the Lahore High Court, Multan Bench, Multan. The learned Judge of the High Court took the view that the amendment allowed to be made in the plaint did not have the effect changing the character of the suit but only corrected its defective form and held that the discretion exercised by the trial Court was proper and in accordance with law. He accordingly dismissed the revision application filed by the respondent by his judgment dated 7th October, 1985.

6. Being aggrieved by the aforesaid judgment of the High Court the appellants came up before this Court and leave was granted mainly to consider whether the trial Court acted illegally in entertaining oral prayer for amendment of plaint, without there being written application in that behalf and without hearing the appellants in opposition to such prayer. The other ground for consideration was whether the respondent (plaintiff) was prevented from seeking amendment of the plaint on account) of stay of proceedings.

7. It has been submitted on behalf of the appellants that the impugned order passed by the trial Court permitting amendment of the plaint was passed without notice to the appellants suddenly during the course of writing the order, when the appellants' counsel had left the court and was not present. There is nothing on the record to substantiate the submission that the appellants' counsel was not present when the Court considered the prayer for amendment. The copy of the order (page 18 of the printed record) on the contrary clearly finds mention that the counsel for the parties were present and their arguments were heard. The submission of the learned counsel that the appellants' counsel was present and argued the main case and left the Court when the learned Judge started writing the order, with the result that during the course of the writing of the order when the oral prayer for amendment was prayed he was not present, is not reflected from the proceedings on record. The ordinary presumption is and indeed it is expected that the counsel must remain present throughout the time when the Judge is writing the order in Court. Thus, there is no substance in this contention that the order was passed in the absence of the counsel for the appellants. The learned counsel next argued that for seeking an amendment in the plaint the law requires a written application of which notice must be given to the other side before the Court could decide to allow the amendment. Reliance has been placed on Muralidhar Chatterjee v. International Film Co. Limited A I R 1947 P C 34. The law pustulated in this judgment was in the following terms:-

"While a rigid practice of refusing leave to amend pleadings is far from commendable, to entertain a case of which the pleadings contain no suggestion is another matter altogether. It is unfortunate that a proper application for leave to amend was not insisted on by the High Court and a formal order made thereon duly safeguarding the rights of the defendants, and ensuring that the basis in fact of the new case made should be set forth with particularity and exactness by the plaintiff."

It will be observed that in their Lordships' view, in the facts of the case before them, altogether a new case on facts was allowed to be introduced by way of amendment in the pleadings of which no suggestion was made in those pleadings. Therefore, the judgment is not an authority for the general proposition that even in regard to formal defects in the plaint the Court is bound by law to insist upon a written application to be made in that behalf. In the facts of the instant case, in our opinion, the cause of action and the facts constituting the same were pleaded with sufficient particulars in the plaint, as expressed by the trial Court that the suit in substance was for obtaining possession of the land in dispute. Consequently by adding the prayer of possession in new case was being set up of which there was no suggestion in the pleadings of the plaintiff has originally filed.

8. Learned counsel also emphatically contended that by permitting the plaintiff to include the prayer for possession the Court in fact converted a time-barred suit into a suit in regard to which the plea of the appellants on the ground of limitation was taken away. Reliance was placed on Chandramma v. Gunna Seethan Naidu A I R 1931 Mad. 542. Eleborating the submission learned counsel stated that the suit as originally framed mainly sought the relief of mandatory injunction which was barred by limitation on the date of the suit, whereas by the addition of the prayer of possession whicn is governed by different Articles in the Limitation Act which prescribe longer period of limitation, the Court in fact allowed the defect of limitation to be cured and deprived the appellants of their vested right to resist the suit on the ground of limitation. This argument also appear to us misconceived. In Keramat Ali and another v. Muhammad Yunus Hap and others P L D 1963 S C 191 this Court postulated that in a suit in which no relief for possession was claimed, the prayer for amendment to include such relief even though a separate suit for such relief was barred by limitation, could be permitted at any stage, even in the Supreme Court, if the nature of the suit is not altered by addition of such prayer. Learned counsel very fairly conceded that if a separate suit had been brought for possession by the respondent at the time the prayer for amendment was made, the suit would have been within time. We, therefore, do not see any good reason to deprive the plaintiff of the right to obtain the relief of possession in the same suit, even though his prayer for mandatory injunction may have been barred by limitation on the date of the suit. After all if a separate suit had been brought, the two suits could have been tried together in view of Order I, rule 1 and Order II, rule 3, C.P.C. Be that as it may as the suit is still Vending before the trial Court all the defences open to the appellants will be available to them and no prejudice will be done to them. It has been held by this Court in a recent pronouncement that delay alone in applying for amendment or expiry of period of limitation is no ground for refusing amendment in the plaint (Mat. Ghulam and others v. Sarsa Khan and others P L D 1985 S C 345). Merely introducing an additional prayer in the suit without changing the substance and character of the cause of action set out in the plaint cannot be refused at any stage. Order VI, rule 17, C.P.C. confers an enabling power to the Court in promotion of the underlying principle of law that every trial of a civil dispute must determine the real questions in controversy between the aparties, because the law favours adjudication of disputes on merits and avoidance of multiplicity of litigation. As already emphasised by this Court rules of procedure are intended to secure the proper administration of justice and could, therefore, be subordinate to that purpose, so that full power of amendment must be enjoyed by the Court in order to achieve the object of complete adjudication of disputes. We are satisfied that in the circumstances of this case the Courts below have not erred in any way to exercise their discretion to permit the plaintiff to amend the plaint.

9. For the foregoing reasons this appeal fails and is accordingly dismissed but in the circumstances of this case we make no order as to costs. It may be clarified that upon filing the amended plaint the trial Court shall give opportunity to the appellants to file additional written statement and they will be at liberty to take all available defences under the law and also if necessary permit the parties to lead further evidence on additional issues arising out of the amended plaint if any.

M.I. Appeal dismissed

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