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Suit No.588 of 1984, decided on 22nd April, 1987.

---O.I, R.10 & O.VI, R.17--Amendment of plaint--Intention of seeking amendment to join partners as plaintiffs in order to meet claim of a bank in suit without mala fide intention--Amendment sought relating to correction of mistakes which crept in due to inadvertent typing and further amendment sought were consequential--Amendments entirely related to averments that had already been made--Nature and character of suit not likely to be changed by allowing amendments--Amendments allowed in circumstances.

P L D 1985 S C 345 rel.

Ali Ahmed Fazeel for Plaintiff.

Liaquat Merchant for Defendants.

The plaintiff has filed this suit for declaration and cancellation of documents mentioned in the prayer clause, permanent injunction and damages. The facts stated in the plaint are that the plaintiff is engaged in the business of builders and is reputed for construction of multi-storeyed buildings at Lahore and Karachi. On 2-7-1984 when the brother of the plaintiff Haroon was working at Kehkeshan Branch of defendant No.1 he was forcibly kidnapped and wrongfully confined by the defendant No.7, the Incharge of Fraud and Forgery Department of defendant No.1 on the allegations that he was involved in a case of fraud, misappropriation and defalcation committed during the year 1977 at Cochinwala, Branch of defendant No.1 as cashier alongwith four other cashiers. During the illegal detention of Haroon Aziz, the defendant No.8 alongwith two other officers working under him approached the plaintiff and made him to believe that the brother of the plaintiff had committed fraud with the Bank and unless the misappropriated amounts are repaid they would arrest the plaintiff, his brother and other family members. The plaintiff was harassed, criminally intimidated and threatened to make good the loss the Bank had suffered or else the defendant shall kidnap the plaintiff alongwith his family members and they will be confined and physically tortured. Under the harassment and coercion, the plaintiff was compelled to pay Rs.9 lacs cash and his signatures were forcibly obtained on guarantee form and other documents and an equitable mortgage was forcibly got created in respect of the house belonging to the mother of the plaintiff Mat. Hajiani Marrium Bai for a sum of Rs.19 lacs and signatures on the blank papers were also obtained by the defendant. Another mortgage was forcibly created under pressure in respect of the property belonging to Mohammed Owais brother of the plaintiff and Abdul Qadir son of the plaintiff for a sum of Rs.10 lacs. An application for loan and signature on blank cheques were also obtained. The plaintiff was also pressurised to mortgage Tahir Plaza situated at Syedna Tahir Saifuddin Road, near City Court, Karachi and building without adopting the Rules and Regulations laid down by the Banking laws. It is alleged that false mortgage was created and cheques were snatched away from the plaintiff under pressure after getting his signature. The copy document's which were obtained by coercion have been annexed with the plaint as Annexures 'A' to 'D'. The original plaint was amended whereby the averments and reliefs sought in respect of the plaintiff's mother sister and brother were deleted who have filed separate suits: Present suit continued on the basis of averments in respect of the documents obtained from the plaintiff.

The plaintiff has filed this application for amendment of the plaint. The first amendment is in respect of change of date in paragraph 11 from 2nd July to 9th July and the year 1977 to 1978. According to the Plaintiff's counsel this is a typing and inadvertant mistake. Mr. Liaquat Merchant has contended that this has been sought with ulterior motive, but no such motive has been explained for which this amendment is being sought; This amendment is therefore allowed.

The second amendment is being sought by adding paragraph 11 (A). By this amendment, the plaintiffs have given detailed facts of the alleged kidnapping of Haroon Aziz as stated in paragraph 11 of the plaint.

The third amendment is sought by adding paragraphs 15(A) and 15(B). In paragraph 15(A) the plaintiff has endeavoured to give facts in seriatim to maintain the sequence in respect of the Plaintiff's undertaking which is Annexure 'E' to the application.

The next amendment is by adding para.15(B). By this amendment plaintiff i5 seeking to introduce a fresh claim for cancellation of an undertaking which is marked Annexure 'F'. This is a joint undertaking by the Plaintiffs Mrs. Shahnaz Mirza and Zeenat Begum. It is alleged to have been obtained by the defendants under coercion and threat. Both these ladies are partners of M/s. Tahir Enterprises and the undertaking sought to be challenged is as follows:-

We, Tahir Enterprises by its partners (1) Mrs. Shahnaz Mirza wife of Mirza Amjad Baig, (2) Zeenat Begum w/o Abdul Razak and (3) Abdul Razak s/o Haji Abdul Aziz do hereby jointly and severally undertake that in the event of Mr. Abdul Razak s/o Haji Abdul Aziz failing to fulfil his commitment we will repay the amount due to Habib Bank Limited by selling his share in the following properties owned by us jointly with Mr. Abdul Razak s/o Haji Abdul Aziz."

From a reading of this undertaking it is clear that Shahnaz Mirza and Zeenat Begum alongwith A. Razzak Aziz the plaintiff have undertaken to pay jointly and severally the amount due from the plaintiff if it is not paid to the Bank. It is further mentioned that such payment should be made by selling plaintiff's share in Tahir Avenue and Tahir Complex.

Amendment in paragraph 18 of the plaint has been sought by adding sub-paras. (a) to (d) in which details of the documents obtained by the defendants have been given. In para.18 amendment is made to annex the Conveyance Deed dated 25-7-84. Para. 20 relates to statement regarding cause of action and it is sought to be amended by adding facts in respect of aforestated amendments. Para.23 is sought to be deleted and prayer clause has been amended due to certain facts and claims which have been introduced now.

Mr. A.A. Fazeel the learned counsel for the plaintiff has contended that by these amendments in paras. 11 to 15 the plaintiff seeks to challenge the validity of his undertaking which has been made jointly with Shahnaz Mirza and Zeenat Begum. According to the learned counsel the nature and character of the suit will not be changed because the grounds for challenging this undertaking are mentioned in plaint and no fresh ground for challenge is being added.

Mr. Liaquat Merchant has, however, contended that the intention of seeking this amendment is to join these two ladies as plaintiffs in order to meet the claim of the Bank in Suit No.84/85. Mere introduction of the claim of these two ladies cannot be termed as mala fide because it is open to them to file fresh suit. I, therefore, allow this amendment.

As regards amendments in paragraph 16 and substitution of paragraphs 16(a), (b), (c), (d) and (e) are concerned, it may be noted that in paragraph 10 of the plaint, the plaintiff has already stated in general terms the allegations regarding threat and coercion and the documents which were obtained by the defendants. By this amendment these facts are stated in more clear terms, it further adds facts relating to the undertaking which is now being sought to be challenged. The amendment sought in paras. 5 and 6 of the application are consequential in nature. The amendment sought by paragraph 7 of the application are corrections referred earlier which crept in due to inadvertant typing mistake. Further, amendments sought are consequential. By paragraph 8, para. 23 is sought to be deleted and consequently in paragraph 9 of the application the prayer clause has been recasted in the manner as required by the amendment. Except for the mistakes which are typing error, or, are consequential amendments the main objection of the learned counsel for the defendant is that these amendments are not bona fide and that the new claim is being introduced through two plaintiffs who are being joined in the present suit.

A perusal of the plaint and the amendments sought will show that they entirely relate to the averments that have already been made. By adding the claim of two lady partners who are sought to be joined as plaintiffs, the nature and character of the suit will not be changed. Their claim is based on the undertaking which has been obtained by coercion and intimidation in respect of bank's claim against plaintiff and against his share in the partnership property. The principles for grant of amendment have been laid down in P L D 1985 S C 345 where it has been observed that the rules of procedure are to be construed liberally and if the Court comes to the conclusion that the amendment is necessary for determining the real controversy in suit, it should be granted. In these circumstances, in order to avoid multiplicity of proceedings, and also to determine the real controversy between the parties it is necessary that the amendments should be allowed. I, therefore, allow the application on payment of cost of Rs.1,000/-

2. The second application is under Order I, rule 10, C.P. C. for joining Zeenat Begum and Shahnaz Mirza as plaintiffs. For reasons stated above this application is also allowed. Amended plaint to be filed within two weeks.

M.Y.H./A-127/K Petition allowed.

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