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‑‑‑ O.VI, R.17‑‑Amendment of pleadings, allowing of‑‑Requirements‑ Amendments in pleadings, held, could be allowed liberally on satisfaction of conditions specified under O.VI, R.17‑‑Conditions under which amendment of plaint could be allowed, stated.

Amendment of pleadings is controlled by the provisions of Order VI, Rule 17, C.P.C. Rule 17 postulates that "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 necessary for the purpose of determining the real questions in controversy between the parties. The prerequisite conditions to invoke power of the Court for an amendment in the pleadings are:‑-----------

(i) the satisfaction of the Court that the proposed amendment is just; and

(ii) that such amendments are necessary for the purpose of determining the real questions in controversy between the parties.

On construing the relevant provisions, by this time, it is settled that an amendment in pleadings may be allowed liberally on satisfaction of the conditions listed under Rule 17, irrespective of the stage of proceedings, but Court is to be slow and reluctant to do so when it is felt that by allowing an amendment, the complexion of suit or cause of action is likely to be changed. These are the only restrictions which control the action of the Court in allowing an amendment in civil proceedings in short, when Court considers that an amendment is likely to change cause of action on which an action is raised or complexion of suit is changed, permission is ordinarily declined. The consensus of superior Courts is that ordinarily an amendment may be allowed liberally.

The rule of liberal permission to amendments rests on the norm of liberal interpretation of statute of procedure providing remedy. The provisions of Rule 17 strictly speaking, constitute a rule of procedure advancing a remedy to rectify an error, mistake, omission or default in pleadings of parties to a suit. The consideration thereby is to minimise the litigation and to advance cause of justice instead to stifle it.

‑‑‑O.VI, R. 17‑‑Specific Relief Act (I of 1877), S. 54‑‑Amendment of plaint‑‑Two parallel suits between same parties relating to same property on basis of onwership‑‑In written statement of earlier suit filed against defendants, leading facts constituting proposed amendment in subsequent suit filed by them were narrated‑‑Both suits being between common parties, in respect of common subject of dispute having been consolidated and decided as such, pleading in counter‑cases, held, formed similar character‑‑Proposed amendment in plaint of subsequent suit filed by defendants of earlier suit having already been incorporated in the pleadings at the earliest opportunity and evidence in its support also having been recorded introduction of such amendment at stage of first appeal would be merely formal.

‑‑‑O.VI, R.17‑‑Amendment of plaint, allowing of‑‑Where proposed amendment in plaint was not in the nature of conflicting, contradictory or different claim constituting no change in complexion of suit, proposed amendment, held, could not be termed as changing character of suit‑‑At best such proposed amendment could be termed as additional circumstance or different ground in support of right of ownership of petitioners.

Keramat Ali's case P L D 1963 S C 191; K. M. Muneer's case PLD 1964 Kar. 172; Ghulamali's case P L D 1960 Kar. 581 and Upendra Narain Roy's case A I R 1919 Cal. 904 rel.

‑‑‑O.II, Rr. 1, 2, 3 & O.VI, R.17‑‑Amendment of plaint‑‑Proposed amendment not precluded under O.II, R.2, C.P.C. ‑‑Object and scope of O.II, Rr. 1, 2, 3, C.P.C. stated.

Rule 2 (1) of Order II, C. P. C. postulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub‑rule (2) provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Sub‑rule (3) lays down that a person entitled to more than one relief in respect of the same cause of action, may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for any of such reliefs, he shall not afterwards sue for any relief so omitted. The language of Rule 2 clearly indicates that the legislature introduced the provisions to control splitting up of claim and to restrict the multiplicity of suits. In the present case, these provisions are least attracted as neither the claim is split up nor the desired relief is shown to be covered by such restrictions.

‑‑‑S . 115 & O . V I , R . 17‑‑Revisional jurisdiction, exercise of‑‑Order of Appellate Court whereby proposed amendment in plaint was refused on misapplication of provision of O.II, R.2 was set aside by High Court in revisional jurisdiction‑‑Amendment in plaint was allowed and case was remanded to Appellate Court for introduction of proposed amendment in plaint.

Raja Sher Muhammad Khan for Petitioners.

Rafique Mahmood Khan and Khalil Ahmed for Respondents.

Date of Institution: 7th January, 1987.

The petition raises the controversy of scope of amendment of the pleadings of plaintiffs, at the stage of first appeal.

2. The subject of dispute is land measuring 6 Kanals comprising Survey No.792, situate in village Chowkian, Tehsil Pallandari. Talay Muhammad Khan, respondent, filed a suit for perpetual injunction on April 18, 1982. He alleged title in the suit land accompanied by improvements in the shape of orchard. The claim of Talay Muhammad Khan was repudiated by Muhammad Bashir Khan and others, the present petitioners, in . heir written statement, presented on June 9, 1982, wherein they expressly averred that their title was admitted by Talay Muhammad Khan as a result of 'Panchayat' held in the village on November 3, 1981, whereby Talay Muhammad Khan, admitting the ownership of Muhammad Bashir Khan and others in the suit land and its possession with him by mortgage, agreed to restore possession of 2 Kanals of land to the owners and to retain 4 Kanals, on payment of Rs.4,000, its value, by securing a sale‑deed in his favour. But subsequently, Talay Muhammad Khan deviated from his commitment, declined to restore possession and instead instituted a suit on fraudulent grounds. During the pendency of suit of Talay Muhammad Khan, Muhammad Bashir Khan and others, the present petitioners, also instituted a counter‑suit for possession of the suit land on July 5, 1982. In their pleadings, the plaintiffs in the counter‑suit alleged their exclusive title of ownership and averred that the land was delivered to Feroze Din and Muhammad Hussain, sons of Talay Muhammad Khan, by mortgage in the sum of Rs.450. On refusal to restore possession by redemption of mortgage, Feroze Din, Muhammad Hussain sons of Talay Muhammad Khan connived with their father and thereby alleged independent title in the subject of dispute. Feroze Din and others, defendants in the counter‑suit, repudiated the title and interest of Muhammad Bashir Khan and others, by alleging limitation, and possession by virtue of private partition, in addition to improvements in the shape of orchard and built‑up property. The trial Court ordered consolidation of the suits on September 22, 1982 and decided both the suits by single order whereby claims of both parties were rejected. Muhammad Bashir Khan and others feeling dissatisfied with the decision of the trial Court, preferred an appeal before the Additional District Judge, whereas no counter‑appeal was addressed by the opposite‑party. On December 10, 1986, an application for amendment of plaint was made by Muhammad Bashir Khan and others. It was stated that plaintiff‑appellants proposed to amend their pleadings by introduction of the facts relating to agreement made between the parties in the 'Panchayat' on November 3, 1.981, whereby Talay Muhammad Khan admitted the ownership of Muhammad Bashir Khan and others in the suit land and its possession on account of mortgage and agreed to restore 2 Kanals of land and retain 4 Kanals out of it, by securing a sale‑deed in consideration of Rs.4,000. In addition to that, the relief ensuing from the proposed amendment was also desired to be introduced. The application was opposed by Talay Muhammad Khan and others through written objection submitted on December 21, 1986. The learned Additional District Judge; Pallandari, turned down the application as, in his view, the proposed amendment was not permissible under the provisions of Order 11, Rule 2, C.P.C. as well as it changed the character of the suit. This order is attacked in the present petition.

3. Amendment of pleadings is controlled by the provisions of Order VI, Rule 17, C.P.C. Rule 17 postulates that "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 necessary for the purpose of determining the real questions in controversy between the parties. The prerequisite conditions to invoke power of the Court for an amendment in the pleadings are‑

(i) the satisfaction of the Court that the proposed amendment is just, and

(ii) that such amendments are necessary for the purpose of determining the real questions in controversy between the parties.

On construing the relevant provisions, by this time, it is settled that an amendment in pleadings may be allowed liberally on satisfaction of the conditions listed under Rule 17, irrespective of the stage of proceedings, but Court is to be slow and reluctant to do so when it is felt that by allowing an amendment, the complexion of suit or cause of action is likely to be changed. These are the only restrictions which control the action of the Court in allowing an amendment in civil proceedings. In short, when Court considers that an amendment is likely to change cause of action on which an action is raised or complexion of suit is changed, permission is ordinarily declined.

4. The consensus of superior Courts is that ordinarily an amendment may be allowed liberally. The rule of liberal permission to amendments rests on the norm of liberal interpretation of statute of procedure providing remedy. The provisions of Rule 17 strictly speaking, constitute a rule of procedure advancing a remedy to rectify an error, mistake, omission or default in pleadings of parties to a suit. The consideration thereby is to minimise the litigation and to advance cause of justice instead to stifle it.

5. Raja Sher Muhammad Khan, the learned counsel, for the petitioners, attacked the order of the learned Additional District Judge by reference to various authorities of the Supreme Court, including this Court and argued that the proposed amendment was not to change the complexion of the suit nor cause of action. Mr. Rafique Mahmood Khan, the learned counsel for the opposite side, supported the impugned order by reference to various authorities. I need not reproduce the authorities cited for and against the proposition on account of distinct factual aspects of the case, as the fact remains that each case is to be decided in the light of its own facts. The distinguishing feature of the present case is that the petitioners at the earliest occasion expressly made averments in their written statement wherein leading facts' constituting the proposed amendment were narrated. Secondly, both the suits being between common parties and in respect of common subject of dispute, were consolidated and decided as such. On consolidation of the suits, the pleadings in counter‑cases formed singular character and it is due to this that common issues arising out of the pleadings were framed and decided as such. In other words, the conspicuous feature of the case is that the averments made in the written statement formed part of averments made in the plaint of counter‑suit. Moreover, parties led their entire evidence for and against the controversy, constituting the proposed amendment. The parties, therefore, do not want to lead additional evidence in case the proposed amendment is allowed. The proposed amendment having already been incorporated in the pleadings at the earliest opportunity and evidence in its support also having been recorded, the introduction of such amendment at the stage of first appeal is mere formal.

6. The plaintiff‑petitioners have alleged their claim of ownership tol the suit land. In support of their claim, they made averments in their plaint and likewise, in denial to the counter‑claim of Talay Muhammad, Khan, they asserted their title and interest and supported it by narrating the event of 'Panchayat' wherein parties reached an agreement, on admission of ownership of plaintiff‑petitioners in the suit land. The proposed amendment, therefore, is not in the nature of conflicting, contradictory or different claim, resulting in change of complexion of suit. At the best, it can be termed an additional circumstance or different ground in support of their right of ownership. Therefore, it is not reasonable to hold that by the proposed amendment in pleadings, the complexion of the suit is likely to be changed. At this stage, it is relevant to state that on the basis of strength of reasons described above, an addition of relief is also not unfair and unjust.

7. According to the pleadings of plaintiff‑petitioners cause of action arose in their favour on denial of their title and failure of defendants to restore possession by redemption of mortgage. The facts constituting cause of action, obviously, preceded the institution of the suit. The repudiation of interest and title of plaintiffs by Talay Muhammad Khan and his sons, firstly, emerged at the time of institution of suit by Talay Muhammad Khan and secondly, when they failed to restore possession of the land by redemption of mortgage. The suit of Muhammad Bashir and others was instituted subsequent to the suit of Talay Muhammad Khan. As seen earlier, in their written statement, the petitioners described the event of 'Panchayat' and execution of agreement much earlier to the institution of their suit. The cause of action on which second suit rests, is also not likely to be changed by any stretch of imagination, by introduction of the proposed amendment.

8. In Keramat Ali's case P L D 1963 S C 191, plaintiff out of possession of the suit land omitted to seek relief of possession, an amendment of plaint was allowed to ask for relief of possession at the stage of appeal in the Supreme Court, though the suit for possession by the time had become barred.

In K.M. Muneer's case P L D 1964 Kar. 172, plaintiff brought a suit for money on the basis of pronote executed by defendant. Later on, on technical ground about the admissibility in evidence, of pronote, the plaintiff sought amendment of plaint, to base the claim on the basis of original liability. The proposed amendment was allowed in view of the circumstances of the case.

In Ghulamali's case P L D 1960 Kar. 581, in a suit for recovery of damages, plaintiff's claim on the alternative grounds, to part of the amount was allowed despite an objection that the amendment in the plaint on the alternative ground changed the cause of action. The objection was overruled.

In Upendra Narain Roy's case A I R 1919 Cal. 904, it was held that the Court desirous of getting at the true facts will allow an amendment subject to the general conditions:‑

(a) bona fides on the part of the applicant;

(b) possibility of amendment without such prejudice to the other party as cannot be compensated by costs; and

(c) where the amendment is not such as to turn a suit of one character into a suit of another character.

In the present case, the bona fides on the part of the applicants are unchallenged. This is so as they introduced the facts relating to proposed amendment at the earliest opportunity in their written statement to the suit filed by Talay Muhammad Khan. The opposite side is not likely to be prejudiced by the amendment as it is not taken by surprise nor any right has accrued to it. The third condition is also fulfilled as the amendment is not likely to change the character of the suit.

9. The learned Additional District Judge refused the amendment as, in his view, the amendment was precluded under Order II, Rule 2, C.P.C. I do not contribute to the view of the learned Additional District Judge as Order II, Rule 2, C.P.C. applies to second suit. Rule 2 (1) postulates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub‑rule (2) provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Sub‑rule (3) lays down that a person entitled to more than one relief in respect of the same cause of action, may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not 'afterwards sue for any relief so omitted. The language of rule 2 clearly indicates that the legislature introduced the provisions to control splitting up of claim and to restrict the multiplicity of suits. In the present case, these provisions are least attracted as neither the claim is split up nor the desired relief is shown to be covered by such restrictions. These provisions, therefore, have no application to the case in hand.

10. In consideration of the reasons described above, the order of the learned Additional District Judge is set aside and petitioners are permitted to introduce the proposed amendment in their pleadings.

A . A . / 309/ A . K Revision allowed

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