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Suit No.730 of 1984, decided on 22nd April, 1987.

---O.VI, R.17--Amendment of pleading--Where amendment in pleading was necessary for determining real controversy between parties and nature and character of suit was not changed thereby, amendment in plaint, held, would not be refused, even though question of limitation was involved therein. --[Limitation].

Mrs.Ghulam Bibi v. Sarsa Khan P L D 1985 S C 245; A I R 1914 P C 298; P L D 1948 P C 73; A I R 1957 Pat. 30; A I R 1952 Pb. 246 and P L D 1948 P C 73 ref.

Z.U.Ahmed for Plaintiff.

Badruda for Defendants.

In view of the order passed on C.M.A. 6007/84 granting amendment of the plaint, this application is dismissed.

2. C.M.A. 6007/84. The plaintiff has filed suit for declaration and permanent injunction. The plaintiff alongwith predecessors-in -interest of defendants Nos.l to 9 and one S. Muhammad Kamleen who later assigned his share to predecessor-in-interest of defendants Nos.l to 4 had taken on lease for a terms of 20 years a piece of land bearing Survey No.7/1 Survey Sheet No. R. B. 8 Bunder Road from Dorabji Rustomji Market Hoshang N.E.D. Dinshaw, Bddi Minocher Dinshaw, Doso Dorabji Market and' Manek Pestonji Chinoy who are the trustees of the Estate of Bai Shirin Bai. Rustomji Market created by a deed of settlement. It is alleged that the arbitration proceedings between defendants Nos.l to 9 on one hand and defendants Nos.10 to 14 on the other hand is pending in the court being suit No.254/75. The plaintiff has also filed Suit No.115/81 against defendants Nos.10 to 14 seeking specific performance in respect of the immovable pro perty. The defendants Nos.15 to 18 applied to be impleaded as co-plaintiffs in. Suit No.254/75 and defendants in suit No.115/81 and they were impleaded as parties in that suit. This order in suit No.254/75 is subject-matter of High Court Appeal filed by the plaintiff. It is alleged that the predecessor-in-interest of defendants Nos.l, 4, 5 to 9 one S. Muhammad Kamleen who later assigned .his share to late Muhammad Ali Hemani and the plaintiff and defendant No.9 entered into a partnership agreement on 6-12-1962 as partners for the purposes of construction of shops and other premises on the leased property and for letting out the same to tenants. It is alleged that in order to defeat the suit for specific performance filed by the plaintiff some persons have entered into an agreement with defendants Nos.l to 4 and these two groups filed compromise application in Suit No.254/75 in which notices have been issued. The defendants Nos.l to 4 in contravention and breach of the lease deed and partnership agreement, surrendered all the rights alongwith other co-lessees under the lease. It has been averred in the plaint that defendants Nos.5 to 9 through defendant No.9 in the first week of September 1981 offered the plaintiff to sell all their interest and shares under the partnership and lease deed. The plaintiff accepted the offer for transfer of all their interest for Rs.2,10,000 and paid Rs.2,000 as earnest money to the defendant No.9. After a fortnight the defendant No.9 returned the earnest money to the plaintiff on the plea that the defendants Nos.5 to 9 were for the time being not ready to transfer their shares. In terms of partnership referred to above none of the partners can without the consent of the other partners cannot assign, mortgage, charge or create any encumbrance on the partnership nor compromise or relinquish, withdraw, and transfer the right in the immovable property. Therefore the alleged surrender, relinquishment or compromise by defendants Nos. l to 4 is against the terms of partnership. The plaintiff therefore filed this suit for injunction that the defendants Nos.l to 9 cannot without the consent of the plaintiff surrender create any encumbrance, relinquish compromise assign or transfer any of the rights enjoyed by them under the lease deed and that the alleged surrender by defendants Nos.l to 4 is illegal and cannot create any valid interest in favour Of defendants Nos.10 to 18 and likewise the defendants Nos.5 to 9 cannot without the consent of the plaintiff enter into any agreement, compromise or surrender their right in favour of defendants Nos.10 to 18 and the same is void and will not confer any right to defendants Nos.10 to 19.

The defendants took the objections that the partnership firm was not registered under Section 69 of 'the Partnership Act and therefore the suit is barred under law. An application under Order 7, Rule 11 C . P . C .- was filed and it seems that to meet that objection the plaintiff has filed this application under Order VI, Rule 17 C .P. C. for amendment of the plaint.

The first amendment sought in that in the title of the suit after the words 'permanent injunction' 'Dissolution and rendition of accounts' be added. It further seeks leave that in para 2 of the plaint the averments made with regard to defendants Nos.10 to 14 be deleted and after that facts regarding arbitration proceeding which happened after filing of the suit as stated in the application be added. Paragraph 4 is sought to be deleted. Another material amend ment is sought by adding new paragraph No.10-A stating that the plaintiff seeks declaration and in junction 'against the defendants coupled with the prayer that 'the firm be dissolved and the accounts be rendered by defendants Nos.l to 4 and successors in interest of late Muhammad Ali Hamlani who was maintaining the accounts and then by defendants Nos.5 to 9 the successor-in-interest of late Habib-ur -Rehman who was maintaining the account on the death of late Hamlani. Additional prayers sought to be added are for dissolution of the firm and rendition of account by defendants Nos.l to 9 and appointment of receiver. Therefore, besides original prayers which have been maintained further reliefs have been sought for dissolution of firm and rendition of accounts.

Mr. Badruja and Mr. Mushtaq Memon have contended that the relief of dissolution and rendition of account sought to be added are time-barred and further that by amendment the nature and the character of the suit will be changed.

The principle for granting amendment 'in the pleading has been laid down in Mrs. Ghulam Bibi v. Sarsa Khan P L D 1985 S C 245 where it was observed that:

'Once the Court decides that the amendment is necessary for the said purpose of determining the real question, the Court is required by law not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose.' It was also observed as follows:--

"In the light of the foregoing discussion if the cause of action does not change the main substance of the suit and nature of the suit would not change and if that does not change, the question of limitation would then remain only of form and not of substance. That is why this Court has so far followed the liberal rule in interpreting Order VI, rule 17 so as to permit amendment if otherwise necessary notwithstanding the possibility that on account of some formal change, the question of limitation might have acquired pronounced importance, had it not been a case of amendment under Order VI, rule 17,"

The learned counsel for the defendants No.1 to 4 has referred to A I R 1914 PC 298, P L D 1948 PC 73, AIR 1957 Patna 30 and AIR 1952 Punjab 246 and contended that by amendment time-barred claim cannot be added. After considering various authorities including PLD 1948 P.C. 73 and AIR 1922 P.C. 249 while referring to the later case the Honourable Supreme Court in Ghulam Bibi's case observed as follows:

'We however, with respect, to the Judicial Committee, in view of the jurisprudential changes influenced by Islamic ethos in Pakistan are unable to agree that if a defendant is prevented from 'starving a plaintiff out of his right' then the amendment should not be allowed. It has often been ruled in recent years by the superior Courts of Pakistan that the rules of procedure are meant to advance justice and to preserve rights of litigants and they are not meant to entrap them into blind corner so as to frustrate the purpose of law and justice.'

Where amendment in the pleading is necessary for determining real controversy between the parties and by amendment the nature and character of the suit is not changed the amendment even if the question of limitation is involved in it will not be refused. Putting the present case to the test laid down by the Supreme Court it is clear that the plaintiff is seeking a relief for dissolution of the firm and accounts on the basis of same facts and grounds which are contained in the plaint. The nature of controversy or suit will not be changed as the bundle of facts disclosed in the original plaint remain the same. In fact the plaintiff wants to add prayers for dissolution of firm and rendition of account. The plaintiff with a view to meet the objection regarding maintainability of the suit due to bar created under section 69 of the Partnership Act and also to seek broader relief is amending the plaint. The application is therefore granted on payment of cost of Rs.2,000. Amended plaint should be filed within two weeks.

3. This is an application under Order I, Rule 10 C.P.C. praying that in view of the C.M.A. 6007/85 under Order VI, Rule 17, C.P.C. the defendants 10 to 18 be deleted. By a separate order the application (C.M.A.6007/87) has been granted. By this application besides amend ment in the averments made in the plaint additional prayer for dissolu tion of firm and rendition of account has been added. The relief against defendants Nos.10 to 18 as sought .in the original plaint has been maintained. Even in the amended plaint the plaintiff has made allegations against defendants No.10 to 18 and sought relief of declara tion against them. In these circumstances they are necessary parties and their name cannot be deleted. This application is dismissed with cost.

4. C.M.A.3298/85. This application was filed on 6-10-1985 during the pendency of C.M.A. 6007/87 and C.M.A.3297/85. It has been filed to amend the plaint as prayed in C . M . A . 6007 /85 and also for deleting the defendants No.10 to 18. This application has been drafted to incorporate the prayers made in the aforestated two application. As C.M.A. 6007/85 has been granted, the prayer for amendment has become redundant .and is rejected. Furthermore, as application under Order I, Rule 10, C.P. C. for deleting defendants No.10 to 18 has been rejected, this prayer is also rejected. The application is dismissed with cost. The amended plaint filed on 6-10-1985 should be removed from the file as its presence on the record is likely to create confusion.

H.B.T./M-337/K Order accordingly.

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