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Petitioner: WAHID BAKHSH VS Respondent: ADDITIONAL DISTRICT JUDGE, MULTAN
2000 Y L R 982
2000 Y L R 982
[Lahore]
Before Maulvi Anwarul Haq, J
WAHID BAKHSH‑‑‑Petitioner
versus
ADDITIONAL DISTRICT JUDGE, MULTAN and others‑‑‑Respondents
Writ Petition No. 1388 of 1988, decided on 25th August, 1999.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.I, R.10 & O. VI, R. 17 ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Plaintiff filed application for impleading the petitioner as a party to the suit and for amendment of the pleadings‑‑‑Trial Court dismissed application whereas Lower Appellate Court allowed the same in a revision filed by plaintiff‑‑ Validity ‑‑‑Amendent sought to be taken was in respect of a document which saw the light of the day after the completion of pleadings, issues and somewhere during the course of recording of evidence of the arties‑‑‑Plaintiff having sought to add a plea against the person who was already party to the suit, no case was made out for interference by High Court in exercise of Constitutional jurisdiction.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. VI, R.17‑‑‑Amendment of pleadings‑‑ Delay in filing application for amendment‑‑ Effect‑‑‑Where provision of O. VI, R.17, C. P. C. stands fulfilled, any amount of delay will he of no consequence in allowing any application for amendment of pleadings.
Muhammad Arshad and another v.
Mst. Firdausia Begum and 4 others 1994 CLC 1967 ref.
Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and Semco Salvage Pvt. Limited v. Kaptan Yusuf Kalkavan and another 1993 SCMR 593 rel.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional petition against inerlocutory order ‑‑‑Maintainability‑‑ Assailing of an interlocutory order passed in civil proceedings‑‑‑Constitutional petition was not maintainable against such order.
Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others 1991 SCMR 970 and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others PLD 1996 SC 246 rel.
Abdul Qadir Hashmi for Petitioner.
Shamsul Haq Ansari for Respondent No.2.
Nemo for the Remaining Respondents.
Date of hearing: 25th August, 1999.
JUDGMENT
On 15‑4‑1971 respondent No.2 filed a suit for possession of the suit property against Haji Elahi Bakhsh, predecessor‑in terest of respondents Nos.3 to 9 and Hussain Ahmad respondent No. 10. The suit was resisted by the said Elahi Bakhsh by filing a written statement. In the said written statement, inter alia, it was contended that the cyJt‑nroyne‑1v has been sold by the said Elahi Bakhsh to the, present petitioner in the year 1970 and with this averment an objection was raised that the suit is bad for misjoinder of proper parties. In response to the said objection the said respondent No.2 sought permission from the learned Trial Court' to implead the petitioner and an amended plaint, wherein the petitioner was impleaded as defendant No. 3 was filed in Court on 27‑10‑1971. In response to the said amended plaint, the written statements were filed by the said Elahi Bakhsh and the present petitioner, which are verbatim copy of each other. The only point significant at the moment is that the said Elahi Bakhsh gave up his objection regarding non joiner of .the parties while the present petitioner in his separately filed written statement did not aver title or the source of title. Issues were framed and evidence of the parties was recorded. To the misfortune of respondent No.2 and may be the petitioner also, the learned Civil Judge while deciding the suit treated it to be a suit for partition only because of the fact that it was so described in the head note of the plaint, but even a lay‑man could have, on bare reading of the plaint, found it a suit for possession. Consequently, he proceeded to pass a preliminary decree for partition of the suit property vide judgment and decree, dated 4‑10‑1980. The petitioner filed appeal and of course, the said preliminary decree was set aside by a learned Additional District Judge, Multan, who remanded the matter back to the Trial Court vide, judgment and decree, dated 16‑9‑1982.
2. On 17‑6‑1987 as application (Annexure‑W) for amendment of the plaint was filed. This application was resisted by the petitioner and although there is no order or its copy on record, the learned counsel for the petitioner insists that the said application was dismissed. Thereafter, the petitioner filed an application on 13-10-1987 (Annexure X). In this application a prayer for grant of permission to amend the plaint was made. The proposed amendment was to the effect that para.5‑A be allowed to be added in the plaint with the averment that the petitioner has not acquired any right in the suit land on the basis of sale‑deed, dated 16‑12‑1970 (this is the document which ultimately turned out to be the document of transfer by Elahi Bakhsh in favour of the petitioner and was produced in evidence as Exh.D.4) and that the same is ineffective upon the rights of respondent No.2. This application was resisted. Both the learned counsel state that this application was decided by the learned Trial Court vide order, dated 1‑11‑1987 (Annexure Y). Vide this order the learned Trial Court proceeded not only to dismiss the application for permission to amend the plaint, but at the same time proceeded to strike off the name of the petitioner suo motu. Needless to say that this exercise on the part of the Trial Court effectively rendered the suit filed by respondent No.2 as meaningless as non‑proceed-able. Respondent No.2 feeling aggrieved filed a civil revision, which was heard by a learned Additional District Judge, Multan, who allowed the same and granted permission to respondent No.2 to amend the plaint in the manner prayed for and also set aside the order of the learned Trial Court striking off the name of the petitioner.
3. Learned counsel for the petitioner contends that the impugned order passed by the learned Additional District Judge is without jurisdiction. According to the learned counsel the order is tantamount to an order of addition of parties. Further contends that the order has the effect of rendering the suit time barred in view of the provisions of Order 1, Rule 10(5), C.P.C., as according to the said provision of law, the suit shall be deemed to have been instituted against the newly added respondent on the date of his addition. According to the learned counsel it will be deemed that the petitioner was impleaded in the suit on the day when some allegation is recorded against him in the plaint and secondly some relief is claimed against him. He has referred to several judgments including the case of Muhammad Arshad and another v. Mst. Firdausia Begum and 4 others (1994 CLC 1967) in support of his contention that there was considerable delay in filing of the application ‑for amendment and the learned Additional District Judge had no lawful authority to grant the same.
4. On the other hand, Mr. Shamsul Haq Ansari, learned counsel for the respondent referring to the cases of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345) and Samco Salvage (PTE) Limited v. Kaptan Yusuf Kalkavan and another (1993 SCMR 593) argues that any amount of delay is of no consideration when a Court comes to the conclusion that the amendment sought is necessary for effective decision of the entire controversy between the parties. Further contends that the order was passed in civil proceedings. The civil suit is still pending and refers to the cases of Muhammad Khan and 6 others v. Mst. Ghulam Fatima and 12 others (1991 SCMR 970) and Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and 20 others (PLD 1996 SC 246) to contend that in the first instance a writ petition is not competent against the decision of Civil Courts rendered in civil suits or proceedings arising out of the same and in the second instance the impugned order essentially being an interlocutory order, on that ground also, the writ petition is not competent.
5. I have gone through the certified copies of the records appended with the writ petition with the assistance of the learned counsel for the parties. I find that the writ petition is neither competent nor maintainable. The order, dated 1‑11‑1987 on a bare reading deals with the application (Annexure X), which is for all purposes an application for amendment of the plaint and through the amendment, respondent No .2 sought to add a plea against the person, who was already party to the suit i.e., the petitioner. The plea sought to be taken was in respect of a document, which saw the light of the day after the completion of the pleadings, issues and some where during the course of recording of evidence of the parties. At the most, the only objection that could have been raised to the proposed amendment, was the delay which apart from the fact that it had been sufficiently explained, otherwise also the learned Additional District Judge had seen to it that the petitioner was reasonably compensated and he had imposed a costs of Rs. 1,000 on respondent No. 2. The judgments cited by the learned counsel for the respondent fully support the impugned order of the learned Additional District Judge, as it is by now settled law that any amount of delay will be of no consequence in allowing an application for amendment provided the provision of Order 6, Rule 17 stands fulfilled.
6. The Trial Court proceeded to strike off the name of the present petitioner from the plaint without any basis whatsoever, on this plank also, the learned Additional District Judge has, not only passed a lawful but a just order by setting aside the said illegal order of the learned Trial Court and leaving the petitioner in the array of the defendants. The objection of the learned counsel for the respondent that the writ petition has been filed against the order passed in civil proceedings and that too of interlocutory nature, is also not without force.
7. In view of the above discussion, I do not find that any case has been made out by the petitioner for interference by this Court in exercise of its Constitutional jurisdiction. I further find that the writ petition is frivolous. It is dismissed with costs of Rs. 2,000 to be paid to the counsel for the respondent No.2. This order be immediately remitted to the learned Trial Court with the direction to requisition the file from the records and proceed with the matter as expeditiously as possible in line with its poster, as already enough time has been lost because of the pendency of this writ petition at this Bench due to overload of cases, and it will be appreciable if he decides the suit in accordance with law before the year 1999 is
Q.M.H./M.A.K./W‑47/L
Petition dismissed