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Writ Petition No.3983 of 1987, decided on 13th September, 1987.
---O.VI,R.17--Constitution of Pakistan (1973), Art. 199--Amendment of written statement-- Declaratory suit--Defendant-respondent filing written statement and contesting suit tooth and nail but later on making an application for amendment of reply to certain para of the plaint so as to deny the allegations made therein which was accepted by Trial Court--Amendment made in written statement showing that admission of said para of plaint was bona fide, unintentional and clerical mistake because if facts contained in said para of plaint had to be admitted intentionally there was no fun in contesting the case- Held, written statement was to be read and taken into consideration as a whole--Courts below; were justified in allowing amendment and had exercised their jurisdiction rightly and lawfully and there was no ground for interference in extra-ordinary writ jurisdiction--Petition dismissed.
Ch. Khalid Mahmood Shaheen for Petitioners.
The petitioners filed a suit against respondents Nos. 1 to 10 for a declaration with a consequential relief of perpetual injunction. The suit was contested by them. In the written statement filed by respondent No.1, para 5 of the plaint was admitted as correct. Later on respondent No. 1 made an application before the learned trial Court for amendment of the reply to para 5 of the plaint so as to deny the allegations made therein. The application was accepted by the learned Civil Judge, Narowal, vide order dated 7-6-1987. The petitioners filed a revision petition which was dismissed by the learned Additional District Judge, Narowal. In this writ petition the said two orders of the learned Courts below have been challenged. I have perused the record and have heard the learned counsel for the petitioners.
2. A perusal of the plaint and written statement filed by respondent No.1 will show that the case of the petitioners related to two resolutions dated 24-8-1985 and 15-12-1982. The action of the Municipal Committee on the basis of the said resolutions was not only challenged in para 5 of the plaint but was also challenged in para 8 thereof. As a matter of fact it is para 8 of the plaint in which the action of the respondents has been challenged on the basis of ground: Nos. (a) to (g) contained therein. In the written statement not only this paragraph was denied but also each and every ground from (a) to (g) was replied to, contested and denied. This clearly shows that respondent No.1 intended to deny the contents of para 5 of the plaint but through some error, instead of denying the same they wrote that the same was correct. It was this mistake which they wanted to correct through the amendment in question. The learned counsel for the petitioners has argued that if the error had resulted through rush of work, as alleged in the application for amendment, the learned trial Court should have called upon respondent No.1 to prove the said allegation through evidence. This argument has no force. As pointed out above the suit of the petitioners was contested tooth and nail and even if the said para 5 is said to have been admitted the other averments made in the written statement suffice to show that the admission of para 5 was a bona fide mistake. It was an unintentional and clerical mistake because if the facts contained in para 5 had to be admitted intentionally there was no fun in contesting the case. As such there can be no denial that it was a bona fide, clerical and unintentional mistake. In these circumstances these facts had not to be proved by any evidence because the same can be inferred from the body of the written statement. It may be pointed out that while dealing with a case it is not only one paragraph of the written statement which is to be taken into consideration but it is the whole written statement which is to be read as a whole and taken into consideration. The learned Courts below were justified in allowing the amendment and they have exercised their jurisdiction rightly and lawfully. There is no ground for interference in the extraordinary writ jurisdiction. The writ petition is dismissed in limine.
S.Q./B-34/L Petition dismissed.
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