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Civil Petition No. 642 of 1980, decided on 17th June, 1985.
(From the judgment of Lahore High Court, dated 21‑11‑1979 passed in Regular Second Appeal No. 606 of 1975).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S.100 & O.VI r.17‑ Petition for Special Leave to Appeal‑‑Contentions, whether High Court justified in allowing respondent‑plaintiff to amend plaint in order to include relief of possession and whether finding of first appellate Court on question of fact wherein it decided that transaction of gift was result of undue influence was open to interference by High Court in second appeal, requiring consideration‑‑Leave granted.
Sh. Masud Akhtar, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 17th June, 1985.
Mst. Wallan was married to Khushi Muhammad from which marriage she had two daughters, namely, Mst. Bashir Bibi and Mst. Amir Bibi (respondents 2 and 3). Khushi Muhammad died sometime in 1964/1965, where after she made a gift of her landed property measuring 200 Kanals in favour of Fattu (father of Khushi Muhammad) and her aforesaid daughters Mst. Bashir Bibi and Mst. Amir Bib then minors. The relevant mutations of the gift were attested on 20‑3‑1968. At this stage, the exact time of which is not being furnished, Mst. Wallan married one Yousaf. On 20‑5‑1970, she brought a suit to challenge the said mutations and also the validity of the gift, on the ground that the same had been the result of undue influence, intimidation and coercion. The suit was contested and a number of issues were framed but her contentions prevailed and the suit was decreed on 8‑5‑1972. The decree was, however, set aside, on 16‑6‑1975, in appeal preferred by the donees, whereupon Mst. Wallan brought a second appeal before the High Court which was accepted, her application made before the High Court for amending the plaint in order to include the relief of possession was allowed and the decree passed by the trial Court was restored. Fattu having died during the pendency of the second appeal, his heirs have moved this petition for leave to appeal.
2. It is submitted that Mst. Wallan had admittedly been out of possession of the disputed property and although the maintainability of the suit in the form originally presented had been contested and issue No. 4 had been struck in that regard, yet she had not cared to amend the plaint until the stage of the second appeal. It is, therefore, urged that the High Court ought not to have allowed her to amend the plaint. It is also urged that the question whether the transaction had been the result of undue influence being one of fact, the finding thereon by the first Appellate Court was not open to interference in second appeal.
3. The contentions require consideration. Leave to appeal is accordingly granted. Security Rs.1,000. The order of status quo already passed on 26‑5‑1980 shall continue.
M. Y. H. Leave granted
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