Form No: HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT
LAHORE.
JUDICIAL DEPARTMENT
Case No: Writ Petition No.3708 of 2015

Mian Muhammad Hafeez Akhtar etc.

Versus
Additional District Judge, Lahore etc.

S. No. of order/ Date of order/ Order with signature of Judge, and that of
Proceeding Proceeding parties or counsel, where necessary.

12.02.2015. Mian Muhammad Aslam Pervaiz Advocate for the petitioners.

Through this writ petition, the petitioners have

challenged the legality and correctness of the order dated

20.11.2014 passed by an Additional District Judge, Lahore

whereby he allowed the revision petition filed by Mohammad

Basharat, respondent No.3, calling in question the validity of

the order dated 25.07.2013 passed by learned Civil Judge,

Lahore, who had dismissed an application moved under Order

VI, Rule 17 C.P.C for incorporating certain amendments to the

plaint.

2. Facts necessary for the disposal of this petition are

that Mohammad Basharat, respondent No.3 herein instituted a

suit for perpetual injunction averring therein that the present

petitioners made an agreement with him in respect of a plot

measuring 1 kanal, situated in Block-A, Jubilee Town Scheme,

Canal Road, Lahore and also delivered possession thereof to

him. It was asserted by him that going back on their words, the

petitioners were poised to make a transfer of the plot to

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someone else in breach of the alleged agreement to sell dated

210.10.2012 executed in his favour. In paragraph No.5 of the

plaint, he maintained that he was always willing and ready to

fulfil his part of the agreement. On the basis of these averments,

he sought a restraining order from the Court. During the

pendency of the suit, Mohammad Basharat filed an application

under Order VI, Rule 17 C.P.C, seeking to make amendments

to the plaint. The proposed amendments read as under:

(i). That in subject of the suit, after the word “suit”

the amendment may kindly be allowed in the

following manner:

“For specific performance of the agreement to sell dated

21.10.20123 and”

(ii) That in the end of para No.6, the amendment may

kindly be allowed in the following manner:

“On 05.01.2013 the plaintiff send notices to the

defendants through registered post whereby it was

informed and requested the defendants that as the date of

payment of remaining consideration and transfer of

property in the name of plaintiff was agreed or fixed as

10.01.2013, therefore, the plaintiff is ready to pay the

whole remaining consideration amount to the defendants

thus the property be get cleared from all encumbrances

and dues and come in the office of Lahore Development

Authority, Lahore on 10.01.2013 at 9:00 a.m. and get

transfer the suit property in the name of plaintiff in the

concern record of Lahore Development Authority,

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Lahore, but on 10.01.2013, the defendants did not come to

the office of LDA to get transfer the suit property in the

name of the plaintiff, so the plaintiff on next day i.e.

11.01.2013 again approached the defendants along with

respectable but the defendants flatly refused to transfer

the suit property in favour of the plaintiff by refusing to

perform their part of agreement dated 21.10.2013, hence

this suit. Copies of notices and receipt of registered post

are attached.”

(iii) That in the prayer, after the words “most

respectfully prayed that a decree for” the

amendment may kindly be allowed in the following

manner:

“specific performance of agreement to sell dated

21.10.2012 may kindly be passed in favour of the plaintiff

and against the defendants by directing the defendants to

get transfer the suit property in favour of the plaintiff in

the concern record of Lahore Development Authority,

Lahore and the possession of the suit property may also

be handed over to the plaintiff and a decree for.”

3. Needless to add, the petitioners opposed his

application tooth and nail. The learned trial Court seized with

the suit dismissed the application vide order dated 25.10.2013.

Feeling aggrieved, Mohammad Basharat, respondent No.3

herein filed a revision petition, which was allowed by an

Additional District Judge, Lahore vide order dated 20.11.2014,

holding as under:
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“Perusal of record reveals that petitioner filed suit

for permanent injunction with the assertion that

respondents being owners of the suit property

entered into an agreement to sell with him on

21.10.2012 regarding the suit property in

consideration of Rs.7,00,000/- and received

Rs.50,000/- as an earnest money, however as per

terms and conditions of agreement, respondents

refused to received the remaining amount in the

violation of terms and conditions of said

agreement, petitioner filed his suit for permanent

injunction and reserved his right to file suit for

specific performance of agreement in case of

refusal of defendant for the transferring of suit

property in his name on the date fixed in the

agreement i.e. 10.01.2013 and petitioner after the

expiry of said date given petition for the

amendment in his said filed suit and through said

petition, wants to amend certain facts in his plaint.

Moreover, through said amendments wants to

convert his said filed suit for permanent injunction

to specific performance of agreement as petitioner

was seeking relief entirely on the basis of

assertions already made in the plaint, therefore,

amendments sought by the petitioner are the result

of development during the filing of his said filed

suit for permanent injunction. Reliance is placed

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on 1993 SCMR 1882 Supreme Court of Pakistan

(Zubaida Biobi Vs. Hshmat Bibi and 2 Others)

therefore, learned trial Court erred while rejecting

petitioner’s petition for amendment in the plaint,

therefore while accepting present revision petition,

petitioner is allowed to amend his filed suit as

prayed for.”

4. In support of this petition, learned counsel for the

petitioners submits that on the face of it, the impugned order

passed by the Revisional Court is unsustainable in the eyes of

law; that the proposed amendments to the plaint would change

the nature and complexion of the suit; that a suit for perpetual

injunction can not be allowed to be converted into one for

specific performance; that cause of action would also undergo a

change; that the allowing of the proposed amendment is

tantamount to restructuring the suit. He concludes by making

the submissions that the revisional Court overstepped its

jurisdiction, calling for interference of this Court in its writ

jurisdiction. To buttress his arguments, he has placed reliance

upon the judgments reported as “Javaid Iqbal v. Abdul Aziz

and another” (PLD 2006 Supreme Court 66), “Muhammad

Hussain v. Sani Hussain and 2 others” (2000 SCMR 391),

“Mst. Imam Hussain v. Sher Ali Shah and others” (1994 SC

MR 2293), “The Metropolitan Corporation v. Kashif Zaheer

Ahmed etc” (1999 Law Notes (S.C.)(1119), “Sardar

Muhammad Mushtaq Khan and 6 others v. Sadar

Writ Petition No.3708 of 2015 6

Muhammad Parvez Khan and 14 others” (2001 MLD 725),

“Ghulam Haider v. Muhammad Ayub” (2001 SCMR 133),

“m.v. Kaptan Yousuf Kalkavan v. Semco Salvage PTD Ltd”

(1992 CLC 143 (Quetta)), “Mian Tariq Aziz v. Mst. Gulnaz

Javed and others” (2007 MLD 1244), “Sher Afzal v. Abdul

Malik and 2 others” (2002 MLD 199), “ National Fertilizer

Marketing Ltd. V. Secretary Local Government and Rural

Development Department and 2 Others” (1992 mLD

1203(Lahore)), Mistri Muhammad Ramzan v. Noor

Muhammad and 2 others” (PLD 1995 Quetta 5), “Tariq

Mehmood Niazi v. Nadeem Afzal and another (PLD 1996

Lahore 429), “Abdul Hameed v. Muhammad Shafi and 51

others” (PLD 2005 Lahore 290), “Murad Ali and 3 others v.

Sanaullah” (1987 CLC 1219 (Lahore)), “Muhammad Iqbal

vs. Mirza Begum and 2 others”(1992 MLD 1257 (Supreme

Court AJ&K)), “Javaid Iqbal v. Abdl Aziz and another”

(PLD 2006 Supreme Court 66) and “ Muhammad Shafi and

others v. Abdul Hameed and others” (2008 SCMR 654).

5. I have heard the learned counsel for the petitioners

and gone through the record appended to the writ petition with

his assistance.

6. I am unable to agree with the contentions raised by

the learned counsel for the petitioners. In paragraph No.6 of the

plaint, Mohammad Basharat, respondent No.3 herein reserved

his right to file suit for specific performance in the event of the

defendant’s refusal to transferring the suit property to him on

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the 10th January, 2013, which allegedly was the date for the

transfer of the property fixed in the purported agreement to sell

dated 21.10.2012. It is noticeable that the suit was instituted on

the 7th November, 2012. After the passing of the aforesaid date,

he had two options open to him; one, to file a new suit for

specific performance reiterating the contents of the first suit,

and, two, to seek amendments to the plaint to bring it in

conformity with the changed circumstances. He opted for the

latter course and came up with an application for making

amendments to the plaint.

7. I have pored over the contents of the plaint in the

suit for perpetual injunction and read them in conjunction with

the proposed amendments, together with the impugned order

passed in revision. I am of the considered opinion that the

proposed amendments would not bring about any fundamental

or qualitative change in the claim being put forward by

Mohammad Basharat, respondent No.3. One of the proposed

amendments would be simply a change in the heading of the

suit, while the other amendment sought to be made by him

relates to the details of the events that occurred subsequent to

the institution of the suit.

8. Finally, the plaintiff has sought the specific

performance of the alleged agreement to sell dated 21.10.2012.

Since the foundation has already been laid in the plaint, no

prejudice would be caused to the defendants/petitioners in

allowing this amendment to be made to the plaint.

Writ Petition No.3708 of 2015 8

9. It may also be observed that over the years, the

superior Courts have tended to the view that amendments to the

plaint are to be allowed liberally and that if they are essential to

the resolving of the controversy in issue, the Court concerned

shall order the party to make such amendments.

10. In the case of “Shabbir Ahmad and others v. Khusi

Muhammad and others” (1993 CLC 2316), this Court took the

view that a suit for permanent injunction based on an agreement

to sell could be decreed as a suit for specific performance,

subject to the payment of Court Fee. It needs to be stressed that

in that case, the plaintiff had instituted a suit for perpetual

injunction, and both the learned Courts below dismissed the

same, holding that it was not maintainable on the basis of a

agreement to sell. The judgment passed by both the Courts

below was set aside in revision. The view taken by this Court

was endorsed by the august Supreme Court of Pakistan in the

case reported as reported as “Javaid Iqbal v. Abdul Aziz and

another” (PLD 2006 Supreme Court 66).

11. As for the judgments cited by the learned counsel

in support of his case, they are clearly distinguishable on facts.

Even otherwise, each case proceeds on its own facts, as was

emphasized in the case reported as “Suba Khan and another V

Hafiz Mian Muhammad” (2007 SCMR 719) and reiterated in

“Mst. Muhammadi and others V Ghulam Nabi and others”

(2007 SCMR 761) as follows:

Writ Petition No.3708 of 2015 9

“It is a settled law that each and every case is to

be decided on its own peculiar circumstances and

facts as law laid down by this Court in Muhammad

Saleem’s case PLD 1994 SC 2213. The relevant

observation is as under:

“Case is only an authority for what it

actually decides.”

12. In the light of the law laid down in PLD 2006 SC

66, I find no illegality or infirmity to have been committed by

the learned Revisional Court in passing the impugned order. I

am mindful of the fact that this writ petition has been filed to

assail the validity of an order passed in revision. It is well-

established law that the discretionary orders passed in revision

are not to be interfered with in the writ jurisdiction unless they

are found to be patently illegal and without jurisdiction.

13. This petition being devoid of merits is hereby

dismissed in limine.

(MAHMOOD AHMAD BHATTI)

JUDGE.

Approved for Reporting.

JUDGE.
*Malik Iftikhar *
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and upholding the decision of the competent authority i.e.

Chairman of the Board whereby major penalty of compulsory

retirement of the petitioner was imposed.

3. As is evident from the prayer clause made in the Writ Petition

and reproduced hereinabove, the petitioner is assailing the validity of the
order passed by the Chairman, Board of Intermediate and Secondary
Education, Multan by which he has been compulsorily retired.
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I can do better than reproducing extract from the judgment of

Honourable Supreme Court of Pakistan reported as “Javaid

Iqbal v. Abdul Aziz and another” (PLD 2006 Supreme Court

66).