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Official Citation: 2024 MLD 1527
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-03-29
Parties: Syed Zaheer Hussain Naqvi vs Civil Judge, West Islamabad and others
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-03-29, officially reported as 2024 MLD 1527. In this matter between Syed Zaheer Hussain Naqvi and Civil Judge, West Islamabad and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 MLD 1527
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title: Syed Zaheer Hussain Naqvi vs Civil Judge, West Islamabad and others Case No.: W.P. No. 1302 of 2022 converted into Civil Revision No.117 of 2024 Date of Judgment:2024-03-29 Reported As: 2024 MLD 1527 Result: Revision allowed
JUDGMENT
JUDGMENT SAMAN RAFAT IMTIAZ, J. This Writ Petition has been filed by the Petitioner to assail the Order dated 08.03.2022 ("Impugned Order") passed by the learned Civil Judge, West-Islamabad whereby the Application filed by the Petitioner under Order VI, Rule 17, C.P.C. was dismissed. At the very outset it may be noted that the Impugned Order is revisable under Section 151, C.P.C. As such, the instant Writ Petition is converted into a Civil Revision by relying upon Ijaz Ahmad Chaudhry v. learned Civil Judge and others, 2020 CLC 291; Chaudhary Muhammad Khan and another v. Civil Judge 1st Class, East-Islamabad and another, 2018 CLC 1505. The office is directed to assign number to the Civil Revision accordingly. 2. The brief facts of the matter are that House No.23, Street No.88, Sector G-6/3, Islamabad ("Subject Property") belonged to the predecessors-in-interest of the Respondents No.2 to 8 (hereinafter also referred to as the legal heirs). A Civil Suit titled Wisha Asif v. Muhammad Shahid Yaqoob, etc. was filed inter se the legal heirs, which was decided vide Consent Decree dated 15.07.2013. The Consent Decree was based on a Compromise Deed dated 05.07.2013 ("Compromise Deed") entered into outside of Court, whereby the shares of the legal heirs were agreed upon according to which the Subject Property would be transferred in the names of such legal heirs. It was further agreed that the Subject Property would thereafter be sold to the Petitioner as it cannot be divided or partitioned under the terms and conditions of allotment and building zoning regulations of Capital Development Authority ("CDA"). It is noteworthy that the Petitioner was not a party to the said Suit and as such was not a party to the Consent Decree but he was a party to the Compromise Deed dated 05.07.2013.
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3. Prior to the Consent Decree and on the same date as the Compromise Deed, the Petitioner entered into a Sale Agreement dated 05.07.2013 with the Respondents No. 2 [Ghazala Asif] and 3 [Saeeda Iftikhar], which records that full consideration was paid to the said Respondents and the Petitioner was given possession of two rooms in the Subject Property. It is noted that no time period was agreed upon for transfer of the Subject Property in the name of the Petitioner by way of the said Sale Agreement dated 05.07.2013. 4. On 03.04.2014 a Suit for Specific Performance of Agreement, Mandatory and Permanent Injunction ("Subject Suit") was filed by the Petitioner against the Respondents Nos.2, 3, and 9 [Office of the Registrar through Sub-Registrar, Islamabad] alleging that one week prior to the Subject Suit the Petitioner had asked the Respondents Nos.2 and 3 to perform their end of the bargain but they refused. It bears emphasis that the Subject Suit was filed for the enforcement of the Sale Agreement dated 05.07.2013 entered by the Petitioner with the Respondents No. 2 and 3 and not on the basis of the Compromise Deed dated 05.07.2013 wherein the Petitioner and all the Respondents Nos. 4 to 8 were party and as such none of the other legal heirs i.e., the Respondents Nos. 4 to 8 were impleaded as party in the Subject Suit. It is also relevant to note that no Suit has been filed to date seeking specific performance of the Compromise Deed dated 05.07.2013. 5. The Respondents Nos.2 and 3 recorded their conceding statements before the Trial Court on 07.04.2014 stating that they have received consideration and have handed over possession of two rooms in the Subject Property to the Petitioner and that they have no objection if the Subject Suit is decreed as prayed for. 6. Before the matter could be decided on the basis of such conceding statements, an Application was made by the Respondent No.4 [Muhammad Javed Janjua] under Order I, Rule 10, C.P.C. stating therein that as per the terms and conditions of the allotment letter and CDA bye-laws the shares are undividable and as such the only option is to put the Subject Property to auction and divide the sale proceeds amongst the legal heirs in view of which all legal heirs are necessary parties to the Subject Suit. The said application was allowed by the Trial Court vide Order dated 14.04.2015, whereby not only the Respondent No.4 was impleaded but also all other legal heirs i.e. the Respondents Nos.5, 6, 7, and 8 by finding that the said Respondents are necessary and proper parties in order to effectually and completely adjudicate upon all the questions involved in the controversy as they are also admittedly co-owners of the Subject Property. The matter was put off for submission of amended plaint. 7. The Petitioner filed an amended Plaint whereby the title was amended to include the Respondents Nos. 4 to 8 in the array of Defendants and paragraph 1-A was added stating that the Suit had been filed against the Respondents Nos. 2 and 3 but the Respondents Nos. 4 to 8 were added as Defendants Nos. 2-A to 2-E pursuant to Order dated 14-04-2015. Neither the alleged cause of action nor the prayer was amended. 8. Nevertheless, a written statement was filed by the Respondents No.7 [Muhammad Ammar] and 8 [Wisha Asif] on 18.03.2019, wherein it was confirmed that they have received full consideration for their shares from the Petitioner and that the Suit may be decreed as prayed for. Similarly, the Respondent No.6 [Muhammad Zahid Ahmed. Khan] filed his written statement on 18.05.2019, wherein receipt of part of the consideration was admitted. Thereafter statements of the Petitioner and the Respondent No. 6/Defendant No. 2-C was recorded on 11.11.2021, wherein the Petitioner stated that an Agreement dated 11.11.2021 has been entered into by and between him and the Respondent No. 6 and copy of Pay Order in the amount of Rs. 13,700,000/- is being tendered. The said Respondent No. 6/Defendant 2-C also accepted the contents of the said Agreement dated 11.11.2021 as correct and stated that he will hand over possession to the Petitioner to the extent of his share in the presence of a representative of the Court and will receive the original pay order of consideration and that he has no objection if the Subject Suit is decreed to his extent.
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9. In the meantime, on 10.02.2020, an Application under Order VI, Rule 17, C.P.C. was made by the Petitioner claiming that all the legal heirs refused to act upon the Compromise Deed and as such permission was sought to make amendments in the Plaint as follows: I. At Para No. 1 line No. 1 of the plaint after word "defendant" word "and" to be deleted and instead of word "and" word "to" be permitted to be added. Likewise in the same line after word "2" word "E" be permitted to be added. Now the same is to be read as defendants Nos. 1 to 2E. II. At Para No. 3 line No. 6 of the plaint after 2013 word "is" to be deleted and following be permitted to be added; "along with Compromise Deed Ex-C1 are" III. At Para No. 4 line No. 6 of the plaint after word "plaintiff" following be permitted to be added; "Other defendants Nos. 2-A to 2-E also sold out their respective shares and received earnest money in the following manner;- a. Defendant No. 2A sold out his 30/128 share in the suit house to the plaintiff for a total sale consideration of Rs. 1,64,06,250/- (One Crore Sixty Four Lac, Six thousand two hundred and Fifty, received Rs. 16,50,000/- as earnest money through Bank Cheque No. 27066059 dated 15 July, 2013 Standards Chartered Bank, Blue Area Islamabad Branch dully acknowledged in the Sale Agreement dated: 07-07-2013. b. Defendant No. 2B sold out his 30/128 share in the suit house to the plaintiff for a total sale consideration of Rs. 1,64,06,250/- (One Crore Sixty Four Lac, Six thousand two hundred and Fifty, received Rs. 26,40,000/- (Twenty six Lac Forty Thousand) as earnest money through different Cheques and cash as detailed hereunder:- a) Rs. 200,000/- on 21". June 2013 by cheque No. 27066051 Standard Chartered Bank. b) Rs. 14,50,000/- vide cheque no 27066062 Standard Chartered Bank. c) Rs. 2,00,000/- cash sum of on 11-10-2013. d) Rs. 50,000 cash on 11-11-2013. e) Rs. 1,20,000/- out of which Rs. 20,000/- given in cash and Rs. 1,00,000/- vide cheque No. 28437541 Standard Chartered Bank Ltd 11-12-2013. f) Rs. 1,00,000/- vide cheque No. 28437549 Standard Chartered Bank Ltd 22-12-2013. g) Rs. 1,00,000/- vide cheque No 31392471 Standard Chartered Bank Ltd 06-01-2014. h) Rs. 4,20,000/- vide Comprehensive Receipt dated 4th March 2014 acknowledging receipt of Rs.120,000.00 in CASH and two Cheques (a) Rs,100,000.00 Vide Cheque No. 28437570 drawn at Standard Chartered Bank and (b) Rs. 200,000.00 Vide Ch No. 019511812 Askari Bank for Rs. 2,00,000/-. a. Defendant No. 2C sold out his 30/128 share In the suit house to the plaintiff for a total sale consideration of Rs. 1,64,06,250/- (One Crore Sixty Four Lac, Six thousand two hundred and Fifty,) receiving Rs. 2,706,250/- (Rupees Twenty Seven Lacs Six Thousand Two Hundred Fifty only) as earnest money (i) Rs.1,650,000.00 on July 1, 2013 Vide Ch. 27066057 Standard Chartered Bank and then on May 17, 2019 (ii) Rs.1,000,000.00 vide Ch. No.56872045 for Rs.1,000,000/- (One Million) and (iii) Rs.56,250.00 vide Ch. No. 56872051 for Rs.56, 250/-, both of Standard Chartered Bank, Blue Area Islamabad Branch which is dully acknowledge by Defendant No 2C. b. Defendant No. 2D and 2E sold out their 24.25/128 share in the suit house: to the plaintiff for a total sale consideration of Rs. 1,45,00,000/- (One Crore Forty Five Lac) and received whole sale consideration in deferent time. It is pertinent to mention over here that the defendant No. 2-D and 2-E acknowledged receipt of total sale consideration before this Honourable Court and recorded statement to this effect also and now '& nothing is outstanding against the plaintiff. It is pertinent to mention over here that it was further agreed between the parties that where balance sale consideration is to be paid to all shareholders at the time of transfer of share of them in the name of the plaintiff/his nominee name.
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IV. At Para No. 5 line No.1 of the plaint after word "defendant" word "S" to be added and words "no 1 and 2" be permitted to be deleted. VI. At Para No. 6 line No. 1 of the plaint after word "defendant" word "s" to be added and words "no 1 and 2" be permitted to be deleted. Thereafter following will be permitted to be added; The plaintiff is ready to pay balance of sale consideration to the remaining defendant No. 2 -A to 2E and that Plaintiff at request of all Defendants also advanced the Property Tax (2013-2014) due of the CDA. Thus the defendants are duty bound to specifically perform their part of Agreements and to transfer ownership of their shares in the suit Plot in the name of plaintiff/his nominee name. VII. At Para No. 7 line No. 3 after words "transaction with the plaintiff" following be permitted to be added; "secondly on---when the defendant No. 2-A executed sale agreement with the plaintiff and received the earnest money, thirdly when the defendant No. 2-B executed sale with the plaintiff and received the earnest money, fourthly on when the defendant No. 2-C executed sale agreement with the plaintiff and received the earnest money, Fifthly when the defendants Nos. 2- D and 2-E executed sale agreement with the plaintiff and received the earnest money and thereafter received whole sale consideration." VIII. At Paragraph No. 1 Line No. 3 of the prayer after word "defendant" word "s" be permitted to be added and words no 1 and 2" be permitted to be deleted. Thereafter after words "in the word "in the suit House/"be permitted to be added. IX. In same Paragraph and Line after word "described in" word "the plaint" be permitted to be deleted and following be permitted to be added; Ex-CI along with Judgment and Decree dated 15.07.2013 passed by Muhammad Shoaib Akhtar, learned Civil Judge Islamabad West. X. At the same Paragraph No. 1 Line No. 4 of the prayer after word "and the defendant" word "s" be permitted to be added and words no. 1 and 2" be permitted to be deleted. XI. After Paragraph No. 1, following Paragraph be permitted to be added; "If the defendants fail to transfer ownership of their respective shares in the name of the plaintiff/his nominee name, the plaintiff be permitted to deposit the remaining sale consideration of remaining defendants Nos. 2- A to 2-E in the Court and their shares be transferred at the office of defendant No. 3 in the name of the plaintiff/his nominee name through representative of the Court". XII. At Paragraph No. 2 Line No. 3 of the prayer clause after word (description given in the word "plaint" be permitted to be deleted and word "Judgment and Decree read with Ex-C1" be permitted to added." [Emphasis added]. 10. This application for amendments under Order VI, Rule 17, C.P.C. has been dismissed by the Trial Court, hence, the instant Writ Petition. 11. The learned counsel for the Petitioner submitted that there is no bar of limitation as far as seeking amendments is concerned under Order VI, Rule 17, C.P.C., which may be made at any stage and that the Respondents will not be prejudiced by the proposed amendments as evidence has not yet been recorded. The learned counsel for the Petitioner in support of his contentions relied upon C.A. Waheed v. Aftab Ahmad Mian and another, PLD 2006 Lahore 68 and Mst. Ghulam Bibi and others v. Sarsa Khan and others, PLD 1985 SC 345. 12. The learned counsel for the Respondent No. 4 pointed out that the Respondents Nos. 4 to 8 were impleaded as additional Defendants by way of Order dated 14.04.2015 whereby the Petitioner was not restrained from making necessary amendments to the Plaint. Despite the forgoing, the Petitioner simply filed an Amended Title of the Plaint on 28.07.2015 without making any amendments to the contents of the Plaint. He argued that therefore the Petitioner is restrained from making any further amendments under Order II, Rule 2, C.P.C., whereby any claim left out
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intentionally or unintentionally is deemed to have been relinquished. He also highlighted that all the amendments sought to be made pertain to the year 2013 prior to the filing of the Suit and as such there is no reason why the Petitioner/plaintiff could not have made such amendments at the time when, he filed the Amended Title of the Plaint. The learned counsel for the Respondent No. 4 argued that the amendments sought to be made by the Petitioner will change the entire complexion of the Suit and as such are not permissible. The learned counsel for the Respondent No. 4 further submits that the amendments sought to be made by the Petitioner are even otherwise not required as the same issues are the subject matter of another Suit titled Javed Janjua v. Syed Zaheer Hussain Naqvi, etc. The learned counsel for the Respondent No. 4 has relied upon the judgment dated 16.08.2023 passed by the Supreme Court of Pakistan in Civil Appeal No. 1121/2018, re: Ijaz ul Haq v. Mrs. Maroof Begum Ahmed and others. 13. The learned counsel for the Respondents No. 5 and 6 adopted the arguments made by the learned counsel for the Respondent No. 4. No one entered appearance on behalf of the Respondents Nos. 2,3,7,8, and 9 therefore the said Respondents were proceeded against ex parte. 14. In exercise of his right of rebuttal the learned counsel for the Petitioner highlighted that not all of the proposed amendments pertain to years prior to the filing of the suit and some also pertain to events that took place in the year 2019. He also denied the allegation that the proposed amendments are the subject matter of another Suit and submitted that the nature of the referred suit is entirely different. He argued that Order II, Rule 2, C.P.C. only applies to the initial Plaint filed by a party and not to the Amended Title of Plaint filed by a plaintiff subsequently in response to the direction given by the Court to implead a party. 15. I have heard the learned counsel for the parties and have also perused the record. 16. At the risk of repetition, it is noted that the chronology of events shows that the Subject Property devolved upon the Respondents Nos. 2 to 8, as legal heirs, upon the death of their predecessors-in- interest. A suit was filed by and between the said legal heirs. During the pendency of such suit, a Compromise Deed dated 05.07.2013 was entered into by the Respondents Nos. 2 to 8 and the Petitioner whereby the shares of the said Respondents i.e. legal heirs were agreed upon and all the said Respondents agreed to sell their respective shares to the Petitioner against their mutually agreed sale consideration. 17. On the same date as the Compromise Deed, the Petitioner entered into a Sale Agreement with the Respondents Nos. 2 and 3 to the extent of their share in the Subject Property. It was, inter alia, agreed by way of the said Sale Agreement that the Respondents No. 2 and 3 are bound to physically appear before the Sub-Registrar to execute the sale deeds in favour of the Petitioner failing which the Petitioner would have the right to get the agreement enforced through Court. The Subject Suit was filed by the Petitioner for the Specific Performance of the said Sale Agreement alleging that the Respondents Nos. 2 and 3 have refused to perform their end of the bargain. 18. The Respondents Nos. 4 to 8 were neither party to the Sale Agreement dated 05-07-2013 nor did the Plaint filed in the Subject Suit contain any allegation against the said Respondents. Later, the Respondent Nos. 4, by way of application under Order I, Rule 10, C.P.C., claimed that the shares in the Subject Property are undividable due to which there is no option but to put the Subject Property to auction and to divide the sale proceeds amongst all the co-owners/legal heirs i.e., the Respondents Nos. 4 to 8 according to their respective shares and as such prayed that all other legal heirs may be impleaded as Defendants in the Subject Suit. 19. The Petitioner resisted such application by filing a reply praying for its dismissal but did not specifically deny that the shares of the legal heirs in the Subject Property are undividable. In fact, the Compromise Deed dated 05.07.2013 on which the Petitioner himself relies also records that the Subject Property cannot be divided/partitioned under the terms and conditions of allotment as well as under CDA regulations based on which the Consent Decree dated 15.07.2013 was passed. Thus it
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can safely be concluded that there is no dispute amongst the parties that the Subject Property cannot be partitioned or divided. 20. The Respondent No. 4's Application under Order 1, Rule 10, C.P.C. was allowed by the Trial Court vide the Order dated 14.04.2015 and the Respondents Nos. 4 to 8 were impleaded, as Defendants Nos. 2-A to 2-E as parties necessary and proper for the complete and effectual adjudication of the controversy on the ground that they are admittedly co-owners of the Subject Property. 21. The matter was put off for submission of amended Plaint. But no substantive change was made by the Petitioner to the Plaint by way of the amended Plaint filed by the Petitioner on 28.07.2015 following the addition of the Respondents Nos. 4 to 8 to the array of Defendants by order of the learned Trial Court. 22. Long thereafter, on 10.02.2020 the Petitioner filed an application seeking amendments to the Plaint, which was dismissed vide the Impugned Order in view of the fact that the application was filed six years after filing of the Subject Suit and by finding that the proposed amendments would change the cause of action and the complexion of the suit and would also take away vested rights of the Respondents 2 to 8/Defendants. Delay in filing of the application under Order VI, Rule 17, C.P.C.: 23. The learned counsel for the Petitioner is correct to the extent that no limitation period has been provided for in law for the filing of an application under Order VI, Rule 17, C.P.C. The said provision of law is reproduced herein below: "Order VI, Rule 17: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." [Emphasis added]. Bare perusal of the provision of law under consideration shows that it empowers the Court to allow either party to alter or amend pleadings at any stage of the proceedings in the manner provided, for the purpose of determining the real questions in controversy between the parties. There is abundant case law whereby it has been held that a party may be allowed to alter or amend his pleadings even at the appellate or revisional stage[1]. 24. The most comprehensive and instructive for the purposes of the instant case is Mst. Ghulam Bibi and others v. Sarsa Khan and others, PLD 1985 SC 345, wherein the appellant/plaintiff sought to amend the Plaint in the second appeal. The Lahore High Court rejected the application by specifically observing, inter alia, that it had been filed at a belated stage. The Supreme Court disagreed and observed that the words "at any stage of the proceedings" in Order VI, Rule 17, C.P.C is not without significance. It was held that the word "proceedings" has been interpreted by the apex Court in a liberal manner so as to give a proper scope to the rule in accord with its purpose, as including the appellate stage and that too up to the Supreme Court." 25. In the instant case, the application for amendment of Plaint was made to the Trial Court and that too when the evidence has not even been recorded. Given that the apex Court has already held that amendments can be made to pleadings even at the appellate or revisional stage provided other considerations are satisfied, the learned Trial Court erred by factoring in delay in the filing of the application under Order VI, Rule 17, C.P.C. for amendment in the Plaint as a ground for dismissal of such application. Do the proposed amendments change cause of action and complexion/character of the Subject Suit? 26. The amendment of the Plaint is the right of a party when the same relates to the cause of action based on which the suit was filed and does not change the main substance, nature, complexion or the character of the suit nor causes prejudice to the other side[2]. It is also settled law that the power to permit amendment is discretionary with the Court which discretion is to be
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exercised liberally to meet the ends of justice and to determine the real controversy between the parties[3] by keeping in view, various judicial principles[4]. The Lahore High Court in the case of Ayesha v. Additional Sessions Judge, Sialkot and others, 2022 CLC 327 cataloged where and when amendment ought to be allowed based on past precedent as follows: "19. It may be added here that all rules of the Civil Procedure Code are geared towards securing proper administration of justice and should always be interpreted with this aim and purpose. Order VI, Rule 17 confers a discretionary power on a Court which a Court only exercises in consonance with and in the light of judicial principles contained in judicial precedents. If this Court were to try and emulate and follow former Chief Justice Asif Saeed Khosa ("Mst. Sughran Bibi v. The State" (PLD 2018 SC 595), "Khizar Hayat and others v. Inspector General of Police (Punjab), Lahore and others" (PLD 2005 Lahore 470) among other cases, Lord Diplock (GCHQ case 1985 AC 374 House of Lords) or even Lord Greene Wednesbury Corporation 1948 (1) KB 223) and try and catalogue when and where an amendment ought to be allowed then, perhaps, the following position will emerge: An amendment in pleadings may be allowed where multiplicity of suits will be avoided, where the amendment does not alter the subject matter or the cause of action of the suit, where it dries not take away any accrued right, where the plaintiff becomes entitled to further relief by reason of events subsequent to the filing of the suit, where the cause of action needs amplification,where the interests of safe and accurate administration of justice so require, where on account of a plaintiffs' evidence a new statutory line of defence gets triggered, where no injustice will be caused, where a relief has inadvertently been left out the list is not exhaustive but just an attempt at cataloguing instances where it will be in line with trite and established law to allow amendment in pleadings under Order VI, Rule 17, C.P.C." [Emphasis added] 27. In the instant case, the original suit was filed…
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