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High Court Appeal No. 52 of 1986, decided on 14th April, 1987.

‑‑‑O. VI, R. 17‑‑Pleadings‑‑Amendment of plaint‑‑Amendment can be allowed by a Court even at appellate stage if same would foster the cause of justice and eliminate multiplicity of litigation‑‑Court might take into consideration events taking place after filing of suit so long as it does not prejudice any of parties to case and it advances cause of justice‑‑Delay simpliciter in filing an application for amendment not to be fatal to such an application‑‑Discretion to allow amendment, however, to be exercised or to be guided by principles repeatedly enunciated by the superior Courts‑‑Perusal of original plaint and application for amendment indicating that factually plaintiff attempted not only to enlarge the scope, but to change the complexion, of the suit‑‑Court, in dismissing application, held, had exercised discretion in accordance with law to which no exception could be taken.

Karamat Ali and another v. Muhammad Yunus Haji and others P L D 1963 S C 191; National Shipping Corporation v. Messrs A.R. Muhammad Siddik and another 1974 SCMR 131; Syed Akhlaque Hussain and another v. Water and Power Development Authority, Lahore 1977 S C M R 284; Mst. Ghulam Bibi and others v. Sarsa Khan and others P L D 1985 S C 345; Ghulam Sughran v. Bashir Ahmed, etc. 1986 C L C 2948 and Muhammad Iqbal and another v. Mst. Shah Begum and another P L D 1986 AJ&K 184 ref.

Tata Iron and Steel Co. Ltd. v. Abdul Ahad and others AIR 1970 Pat. 338 distinguished.

Samiuddin Sami for Appellant.

Ismail Merchant for Respondents.

Date of hearing: 14th April, 1987.

‑‑This High Court appeal is directed against an order dated 26‑1‑1986 passed by a learned Single Judge in Suit No. 125 of 1984 dismissing the appellant's application under Order VI Rule 17 read with Section 151, C . P . C .

2. The brief facts leading to the filing of the above appeal are that the present appellant filed suit No. 629/77 in the Court of a Civil Judge at Karachi for possession of one room against deceased defendant Mst. Haseena Begum wife of Inamaullah, hereinafter referred to as the deceased on the averment that he had granted licence to her to occupy the said room for the purpose of supervising some construction on her plot situated in the vicinity of the suit property and that after the revocation of the licence she failed to hand over the possession of the room. It is the case of the appellant that he had. purchased the plot in question, namely, plot of land bearing No. C/E‑123 situated in Orangi Township, from the deceased's brother Tanzim Ahmed under an agreement of Sale dated 18‑1‑1976 and obtained the possession of the same on 27‑12‑1976. It is also the case of the appellant that the above allotment was transferred by the KDA from the name of Tanzim Ahmed in his favour on the above date and that in pursuance thereof a lease was executed on 29‑12‑1976. It appears that deceased invoked arbitration against the grant of lease of the plot, which resulted into an award in her favour but the said award was set aside by a learned Single Judge of this Court by judgment dated 16‑10‑1978 passed in J. Misc. No. 28 of 1978 filed by the appellant. It appears that deceased filed suit No. 1140/78 in December, 1978 in this Court for declaration and permanent injunction. It further seems that upon Transfer Application No. 17/83 filed by the deceased a learned Single Judge by an order dated 29‑1‑1984 ordered the transfer of the appellant's aforesaid suit from the file of the learned Civil Judge to the High Court and also ordered trial of the two suits together. After that issues were framed in August, 1984. It also appears that the appellant filed the aforesaid amendment application on 29‑11‑1985 whereby he sought the addition of the following two paras in addition to the amendment of the valuation and prayer clause. It may be advantageous to reproduce hereinbelow the contents of the above application which read as under:‑‑-----

"In para.9 the following paras be added:--

9‑A . That the late Haseena Begum died according to the death certificate filed in suit No. 1140/78 on 16‑11‑1980 and when her advocate brought her legal heirs on record of the said counter suit No. 1140/78, the plaintiff visited the premises at that time in a spirit of compromise and found that the portion of the house, namely a room near the living space was still locked with the belongings of plaintiff inside, but learnt that the late Haseena Begum of whom the present defendants are legal heirs, had after taking illegal possession of the said house, some time before the said visit around the month of December, 1981, let out the two shops built on the commercial part of plaintiff's said premises.

9.B. That at the time of the aforesaid visit, the plaintiff could not talk to the defendants because only children were at the house and, therefore, the plaintiff visited the premises again soon after Baqr Idd (Eiduz‑Azha) of 1983 after his return from India where he had gone to get married and it was at that time the plaintiff found that the said lock had been removed and room occupied by the defendants, so that the entire premises were occupied by the defendants.

"In para.11, the figure of Rs.200 be substituted by Rs.51,000 and in prayer clause (i) the words 'portion of be deleted and in (ii) the words "part of" be deleted and at the end, to be added: and possession and mesne profits in respect of two shops aforesaid."

It may be observed that the deceased expired in November, 1980 and after that her legal heirs were brought on record in her place. They opposed the above application on various legal grounds. The learned Single Judge after hearing the learned 'counsel for the parties by his order under appeal dismissed the above application on the ground that the amendments sought would enlarge the scope of the suit and would substantially change the relief prayed for. The appellant being aggrieved by the above order has filed the present appeal.

3. Mr. Samiuddin Sami learned counsel for the appellant has vehemently urged as follows:‑‑

(1) That it has been consistently held by the superior Courts inter alia, in Pakistan that the provisions contained in Order V I Rule 17, C . P . C . are to be construed liberally with the object to foster the cause of justice, which has not been done in the instant case by the learned Single Judge,

(2) That the basic dispute between the parties was as to the title of the suit property after the deceased filed the written statement and claimed title to the entire property and therefore the amendment sought would not have changed the complexion or the scope of the suit.

(3) That the amendments sought would have eliminated multiplicity of the litigation.

(4) That even the subsequent cause of action can be taken note of by a Court while deciding a case.

(4) on the other hand Mr. Ismail Merchant learned counsel for the respondents has urged as under:‑‑

(1) That it is equally well‑settled principle of law that the amendment of the plaint cannot be allowed if it changes the complexion of the suit and would cause prejudice to the defendant.

(2) That in the present case the amendment was sought after nearly eight years of the filing of the plaint and that too in respect of the alleged cause of action allegedly accrued to the appellant in 1981 and 1983.

(3) That if the learned Single Judge would have allowed the amendment, it would have caused seriously prejudice to the respondents.

5. Mr. Samiuddin Sami has referred to the following cases:‑‑------

1. Karamat Ali and another v. Muhammad Yunus Haji and others reported in PLD 1963 SC 191, National Shipping Corporation v. Messrs A.R. Muhammad Siddik and another reported in 1974 SCMR 131, Syed Akhlaque Hussain and another v. Water and Power Development Authority, Lahore reported in 1977 SCMR 284, Mst. Ghulam Bibi and others v.' Sarsa Khan and others reported in PLD 1985 Supreme Court 345, Ghulam Sughran v. Bashir Ahmed, etc. reported in 1986 CLC 2948; Muhammad Iqbal and another v. Mst. Shah Begum and another reported in PLD 1986 AJK 184 and The Tata Iron and Steel Co. Ltd. v. Abdul Ahad and others reported in AIR 1970 Pat. 338.

6. Mr. Ismail Merchant has relied upon the observations contained in the last para of page 352 of the above Supreme Court case namely Mst. Ghulam Bibi and others v. Sarsa Khan and others referred to hereinabove.

The ratio decidendi of the above cases, except the case of Patna High Court, which we intend to deal later on, is that an amendment can be allowed by a Court even at the appellate stage if it will foster the cause of justice and will eliminate multipicity of litigation. The further ratio is that mere delay in filing of an application for amendment may not be fatal to such an application. It has also been laid down in some of the above cited cases that even a new relief can be prayed for through the amendment application. There cannot be any cavil to the propositions propounded in the above cited cases. However, we may point out that the discretion to allow the amendment is to be exercised or is to be guided by the principles repeatedly enunciated by the superior Courts and which have been reiterated by the Hon'ble Supreme Court in the above case of Mst. Ghulam Bibi and others. It will be advantageous to reproduce the relevant observations which read as follows:----

"What has been stated above is, however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment whether it falls under the first part of rule 17 or in the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed. Apart from the consequential technical changes mutatis mutandis in the context of the grounds stated in the application for amendment, only two major amendments were sought to be made in the plaint. They would have been: firstly, the change in the heading signifying the suit being for specific performance etc. instead of declaration etc. and secondly, there was to be a similar change in the prayer paragraph. These amendments would not have caused any embarrassment to the respondents/defendants either in seeking and making similar amendments in their written statement. The inconvenience caused to the respondents as the provision itself visualises is not only natural but would ordinarily be occasioned in almost every case. That is why the law visualises the award of adequate compensation: in that, the amendment has to be allowed" in such manner and on such terms as may be just."

7. In the instant case a perusal of the original plaint filed by the appellant and the application for the amendment will indicate that factually the appellant attempted not only to enlarge the scope of a suit but to change the complexion of the suit. It may be observed that according to the averments in the amendment application the deceased had let out two shops to the tenant in 1981. He is seeking the possession of the above shops through the above amendment application without even impleading the tenants in occupation. The main issue in the appellant's suit is whether he had granted licence to the deceased in respect of one of the two rooms in the said house and, whether that licence was revoked by him and whether she refused to hand over the possession after revocation. It is true that in the written statement she had pleaded her title to the suit property but that was done as far back as in 1977 when she filed the written statement. In our view the learned Single Judge has exercised the discretion in accordance with law to which no exception can be taken in this appeal.

8. Mr. Sami after the conclusion of the arguments by him and by the learned counsel for the respondents in reply has submitted at the bar that his client is willing to drop the prayer for the amendment in respect of the two shops but to claim amendment only in respect of the second room in the same house. It will suffice to observe that this request was not made by the appellant before the learned Single Judge. In any case, the learned Single Judge has held that the alleged cause of action in respect of the second room had accrued to the appellant several years after the filing of the suit, that is, suit was filed in 1977 whereas the deceased had allegedly broken the lock somewhere between 1981 and 1983. We cannot entertain the above oral request at this late stage.

9. Reverting to the Patna case of 1970, it may be observed that in this case it has been held that the Court can take into consideration the subsequent events which may take place after the filing of the suit. The above case is not a case on Order VI Rule 17. However, it will suffice to observe that the Court may take into consideration the subsequent events which may take place after the filing of the suit so long as it does not prejudice any of the parties to the case and it advances the cause of justice, which in our view in the instant case is missing.

10. The learned Single Judge has exercised the discretion properly. We see no force in this appeal, which is dismissed with no order as to costs.

S.Q./M‑121/K Appeal dismissed.

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