2001 SCMR 133

 
[Supreme Court of Pakistan]
 
Present: Muhammad Bashir Jehangiri and Iftikhar Muhammad Chaudhry, JJ
 
GHULAM HAIDER ---Petitioner
 
versus
 
MUHAMMAD AYUB --- Respondent
 
Civil Petition No. 86-Q of 1998, decided on 8th August, 2000.
 
(On appeal from the judgment, dated 17-4-1998 passed by High Court of Balochistan
in Civil Revision No.5 of 1998).
 
Civil Procedure Code (V of 1908)----
 
----O.VI, R.17---Constitution of Pakistan (1973), Art. 185(3)---Amendment of
pleadings ---Seeking amendment in pleadings at appellate stage---Proposed
amendment changing complexion of the suit---Suit of the plaintiff was decreed by the
Trial Court and during the pendency of appeal the defendant filed application for
amendment of the written statement filed during the trial---Appellate Court dismissed
the appeal alongwith the application for amendment---Revision also met the same
fate---Contention by the defendant was that-amendment of pleadings could be sought
at any stage ---Validity-Application for amendment of pleadings could be entertained
at any stage of the proceedings but such amendment could not be allowed to change
the complexion of the suit---Amendment sought by the defendant in written statement
would have changed the complexion of the plea taken by him in written statement
filed earlier during the trial and the plaintiff who had successfully established his case
before the Trial Court producing evidence in support of the issues, would have to
establish once again his title over the suit property as after the permission of the
amendment the case had to be remanded to the Trial Court---Amendment could not be
permitted in the pleadings under O.VI, R.17 C.P.C. where the same amounted to
cause prejudice to opposite-party---By obtaining a decree from the Trial Court, which
had been maintained up to the stage of High Court, a right had accrued in favour of
the plaintiff and if the amendment as sought for was granted the same would deprive
the plaintiff from the affirmative findings recorded in his favour---Leave to appeal
was refused.
 
Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Ch. Abdul
Rashid v. Ch. Muhammad Tufail and others PLD 1992 SC 180 and Mst. Imam
Hussain v. Sher Ali Shah and others 1994 SCMR 2293 ref.
 
Basharatullah, Senior Advocate Supreme Court and Mehta K. N. Kohli, Advocate
-on-Record for Petitioners.
 
Tariq Mehmood, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate-
on-Record for Respondent.
 
Date of hearing: 8th August, 2000.
 
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, J.---Briefly stating facts of the case are
that Muhammad Ayub son of Zarif respondent instituted a suit on 19th September,
1994 in- the Court of Civil Judge-V, Quetta for declaration and permanent injunction
against petitioner -Ghulam Haider son of Haji Sahib Jan on averments that he is the
owner of the property bearing. Khasra Nos.2197 and 2198 measuring 21 Rods and 15
Poles vide Mutation No.425, dated 5th December, 1989. The petitioner without any
reason and justification had encroached upon the land in order to dispossess him,
therefore, declaration was sought to the effect that he be declared lawful owner of the
property and by way of passing an injunction the petitioner be restrained not to
interfere into his peaceful possession etc.
 
2. The petitioner submitted his written statement, dated 2nd February, 1995 denying
the factum of purchase of the property by the respondents for want of knowledge.
However, he contended, that Mohabat Khan and his brothers secretly transferred the
property in the name of plaintiff and as soon as he came to know about the fact of sale
transaction he immediately performed Talabs as required under the law to file a suit
for pre-emption.
 
3. Learned trial Court struck issues arising out of pleadings of the parties out of which
Issue No.2 being relevant for disposal of instant petition is reproduced
hereinabelow:--
 
"Whether the plaintiff is lawful owner of property Khasra No.2197/2198
Mutation No.425, Khewat No.61/62 situated Mahal Khushkaba Mouza
Saraghuraghi, Tappa Durani, Tehsil and District Quetta?"
 
4. The suit field by the respondent, however, was decreed on 28th December, 1995.
 
 Against this order petitioner preferred appeal before the District Judge,
Quetta alongwith an application under Order VI, Rule 17 read with section 151,
C.P.C. on 13th February, 1996 seeking amendment in the written statement to
the effect that he be allowed to plead that he himself is the exclusive owner
with possession of the suit property and his step-brothers through fraud,
misrepresentation and behind his back got suit land transferred in their name
through connivance of revenue staff etc. and now a portion of that property has
been transferred to respondent.
 
Learned Additional District Judge, Quetta dismissed the appeal on 12-8-1996 and
against the said order petitioner preferred Revision Petition No.313 of 1996 which
was partially allowed, in pursuance whereof the case was remanded to the Appellate
Court for affording proper opportunity of hearing to all concerned vide order, dated
20th May, 1997.
 
On remand the appeal as well as application under Order VI, Rule 17, C.P.C. were
once again dismissed by learned Additional District Judge-II, Quetta vide order, dated
10th November, 1997 with observation that as case has been decided on merits against
the appellant/defendant, therefore, the application under Order VI, Rule 17, C.P.C.
would serve no purpose.
 
5. Petitioner feeling aggrieved against the orders of trial and Appellate Courts
preferred Civil Revision No.5 of 1998 before the High Court of Balochistan which has
been dismissed vide impugned order, dated 17th April, 199$. As such instant petition
for leave to appeal has been filed.
 
6. Mr. Basharatullah, learned Senior Advocate Supreme Court contended that learned
Judge in Chambers of the High Court declined to allow amendment in written
statement to the petitioner in violation of law laid down by this Court in the case of
Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), Ch.
Abdul Rashid v. Ch. Muhammad Tufail and others (PLD 1992 SC 180) wherein
Order VI, Rule 17, C.P.C. was examined and it was held that for purposes of
determination of real questions in controversy and to do complete justice even at the
stage of hearing of the case before the Supreme Court amendment in the plaint can be
directed. Learned counsel further explained that during pendency of the suit it
transpired that Mohabat Khan and others, step-brothers of the petitioner have
transferred the property owned by the petitioner in a clandestine manner on their
names and thereafter they have exchanged the same property with the respondent in
order to deprive him from his legitimate proprietary rights in the suit land as such no
sooner this fact came into the notice of the petitioner he submitted an application at
the appellate stage for amendment of the written statement details whereof were
mentioned in the application
 
7. On the other hand learned counsel for the Caveator Mr. Tariq Mehmood
vehemently opposed the contention of the petitioner's counsel and argued that as far as
powers conferred. upon this Court to allow amendment in the pleadings is concerned
there is no civil with it but this Court as well will exercise its jurisdiction within the
paramaters laid down under Order VI, Rule 17, C.P.C. and also following the
principles pronounced from time to tome by the superior Courts. As per his contention
if the amendment sought for tantamount to change the complicity of the plea which
was raised by one of the parties at the time of submitting the pleadings then this Court
will be reluctant to accede to-the request so made before it or before the trial Court for
amendment of the plaint or written statement. To substantiate his plea reliance was
placed on 1994 SCMR 2293.
 
8. It may be observed that from the contents of written statement filed by petitioner in
response to the suit respondent it reveals that petitioner did not raise plea that he is in
possession of the suit land being its owner inasmuch as he accepted the factum of
purchase of suit land by the respondent and defended the suit principally on two
counts firstly that the land is situated adjacent to his house, therefore, he is in its
possession and secondly he is intending to file a suit for pre-emption for which Talabs
have been made. Be that as it may, petitioner did not produce evidence before the trial
Court to rebut the stand of the respondent that he is lawful of the suit land because if it
is presumed that petitioner himself is the owner of the land and due to inadvertence he
could not raise such plea in written statement but he had full opportunity to lead the
evidence before the trial Court that his step-brothers Mohabat Khan and others in
clandestine manner have deprived him from his legitimate right and got mutated his
share in the land on their names. Thus, in absence of any evidence contrary to the
evidence produced by the respondent learned trial Court decided Issue No.2
reproduced hereinabove that he is the lawful owner of the land. In view of such
situation question for consideration crops up as to whether within the provisions of
Order VI, Rule 17, C.P.C. it was obligatory upon the learned High Court to have
granted permission to the petitioner to amend the written. statement by substituting
the plea already taken therein with altogether new plea explained hereinabove.
 
9. Before attending this aspect of the case we would like to note that the plea of the
petitioner is that after coming to know that his step-brothers i.e. Mohabat Khan and
others have deprived him from his proprietary rights in the property in dispute he
approached the Revenue Authorities and got favourable order passed by Member,
Board of Revenue on 18th January, 1994. But his this plea also seems to be devoid of
force for the reason that the order of M.B.R. has not been exhibited/proved during
trial of the case if for sake of arguments it is presumed that by dint of this order
petitioner has been recognized as owner of the suit property then he could have
conveniently mentioned this fact in the written statement filed on 2nd February, 1995.
Although Mr. Tariq Mehmood learned counsel contended that order of Member,
Board of Revenue being referred to pertain to other property but we are not inclined to
further dilate upon this aspect of the case for the reason that the order was not brought
on record by the petitioner before the trial Court in accordance with law.
 
10. Now turning towards the arguments of petitioner's counsel that in view of law laid
down by this Court in the case of Mst. Ghulam Bibi (supra) the learned High Court
may have granted permission to the petitioner to amend the written statement. We
afraid the principle laid down in the judgment by this Court for entertaining an
application for amendment at the stage of Supreme Court or for that matter before the
High Court is not of any help to him because it was noted that this Court enjoys power
to grant, permission for amendment to do complete justice but that alone is not the
rationale behind the liberal rule of construction in so far as Order VI, Rule 17 is
concerned. It cannot be said that if the Supreme Court in exercise of its power to do
complete justice considers the amendment in the pleadings to be liberally allowed, it
would apply different principle of justice for other Courts when interpreting Order VI,
Rule 17. In reality the said rule is by itself couched in such language as to advance the
object of complete justice. In this very case it has further been noted that permission
to amend the pleadings can be accorded for the purpose of determining the real
question in controversy. Thus, the instant case is to be tested at the touchstone of this
principle and without any hesitation it can be opined that allowing permission to
amend the written statement by introducing an altogether new plea comparing to the
one which was raised at the time of filing of written statement would not satisfy the
test because the controversy between the parties is absolutely different other than
which is now being introduced for the first time by the petitioner. In this behalf
reference may also be made to the case of Mst. Imam Hussain v. Sher Ali Shah and
others (1994 SCMR 2293). As per facts of this case the suit filed by the petitioner
challenging the validity of the gift on the ground that at the time of its execution the
owner of the property was insane but the learned trial Court dismissed the suit because
the medical certificate was not produced before it in order to prove that the owner was
insane at the time of execution of the gift deed. The petitioner filed appeal and
revision against the order of trial Court which also failed before Additional District
Judge and the High Court, therefore, this Court was approached with the plea that
before the High Court the petitioner filed an application seeking amendment of the
plaint for adding the ground that the gift was invalid as the same was not accepted by
Mst. Shah Begum and physical possession of the suit land was not given but this
application was not disposed of by learned High Court. In view of this background of
the case leave to appeal was refused holding that the petitioner was not entitled to
seek amendment of the plaint in the civil revision proceedings after expiry of nearly 5
years from the date of filing of the suit with the object to change the complexion of
the suit. It was also observed that no doubt this Court has held in a number of cases
that an application for amendment of the pleadings can be entertained at any stage of
the proceedings, but at the same time it has successfully established his case before
.the trial Court by producing evidence in support of Issue No.2 will have to once again
establish his title over the property because if the amendment is allowed then the case
has to be remanded to the trial Court. At this juncture it may also be noted that by the
time it is well-settled that amendment cannot be permitted in the pleadings under
Order VI, Rule 17, C.P.C. if it amount to cause prejudice because by obtaining a
decree from the trial Court which has been maintained up to the stage of High Court a
right has accrued in his favour and if the amendment as sought for is granted it would
deprive him from the affirmative findings recorded in his favour.
 
14. Thus, keeping in view these facts we are of the considered opinion that learned
High Court has not passed the impugned judgment in violation of the law laid down
by this Court in the case of Mst. Ghulam Bibi (supra).
 
In view of what has been stated hereinabove we are not persuaded to grant the relief to
the petitioner as prayed for, therefore, petition is dismissed and leave to appeal is
refused.
 
Q.M.H./M.A.K./G-37/S                                                          Petition dismissed.