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Petitioner: AZIZ FATIMA VS Respondent: PROVINCE OF PUNJAB
1988 C L C 2171
1988 C L C 2171
[Lahore]
Before Munir A‑Shaikh, J
Mst. AZIZ FATIMA and 8 others‑‑Petitioners
versus
PROVINCE OF PUNJAB and another‑‑Respondents
Civil Revision No.1153 of 1986, decided on 7th May, 1988.
Civil Procedure Code (V of 1908)‑‑
‑‑‑0. VI, R. 17‑‑Specific Relief Act (I of 1877), S. 42‑‑Amendment of plaint at appellate stage‑‑Petitioner's suit for declaration simpliciter, dismissed for non‑inclusion of possession as consequential relief‑ Plaintiff applied for amendment of plaint before First Appellate Court which was dismissed‑‑Amendment of plaint when to be allowed‑‑Where suit was held to be defective merely for omission of plaintiff to seek consequential relief of possession, Court, held, should normally allow such amendment which was necessary for effective and final adjudication of real question in controversy between parties‑‑Appellate Court having acted with material irregularity and illegality in disallowing proposed amendment merely on ground of delay, impugned order was not sustainable‑‑Petitioners were allowed to amend plaint.
Ahmed Din v. Muhammad Shafi and others P L D 1971 SC 762 and Ghulam Bibi and others v. Sarsa Khan and others P L D 1985 SC 345 ref. Sh. Muhammad Siddique for Petitioners. Nemo for Respondent No.l. Akhtar Ali Chaudhry for Respondent No.2. Date of hearing: 7th May, 1988.
JUDGMENT
In this revision petition order dated 18‑11‑1985 of the learned District Judge, Faisalabad, has been assailed by which application of the petitioners moved by them under section 107 (2) read with section 151 and Order VI, Rule 17 of the Code of Civil Procedure seeking amendment of the plaint in order to add prayer of possession in the suit has been rejected.
2. Predecessor‑in‑interest of the petitioners namely Ahmad Hassan filed a suit for declaration that he was the owner in possession of the plot No.934‑B situated in Peoples Colony, Faisalabad, and the order dated 21‑1‑1967, whereby the allotment of the same was cancelled from his name was illegal and void. The learned trial Court framed various issues. Issue No.l was relating to the question of maintain ability of the suit. It was held by the learned Trial Court that the suit was not maintainable for declaration simpliciter without asking for consequential relief of possession because the petitioners were out of possession. The suit was dismissed by the learned trial Court by judgment dated 13‑7‑1978. The petitioners filed appeal against the said judgment and decree dated 13‑7‑1978 before the learned District Judge, Faisalabad, and during the pendency of the appeal afore mentioned application for amendment of the plaint, so as to add prayer of possession, was made which has been rejected by the impugned order.
3. Learned counsel for the petitioners on the strength of reported judgments such as Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) and Mst. Ghulam Bibi and others v. Sarsa Khan and others (P L D 1985 SC 345) argued that amendment could be allowed at any stage in the interest of justice. He also argued that the proposed amendment did not have either the effect of changing the nature of the suit or substitution of different cause of action, therefore, it could not have been. refused merely on the ground of delay in particular when according to the finding of the learned lower appellate Court itself the plot was lying vacant when the suit was filed by the predecessor‑in‑interest of the petitioners. 4. On the other hand learned counsel for the respondent did not seriously contest the legal position that such an amendment could be allowed at any stage of the proceedings but argued that since the learned lower appellate Court in its discretion has not allowed the amendment, therefore, this Court cannot interfere in exercise of revisional jurisdiction.
5. I have considered the arguments. In view of authoritative pronouncements made on the question of amendment of the pleadings through reported judgments by the superior Courts, the impugned order of the learned District Judge cannot be sustained. The prayer which the petitioners sought to be added was flowing from the main relief of declaration sought by the petitioners and it was not such an amendment which had the effect of either changing the nature of the suit or substitution of a new or different cause of action. As a matter of fact where the suit is held to be defective merely for omission of the plaintiff to seek consequential relief of possession the Court normally should allow such amendment which is necessary for effective and final adjudication of real question in controversy between the parties. The impugned order is violative of well‑established principles laid down by superior Courts for amendment of pleadings which the learned District Judge could not ignore but was bound to follow. The learned District Judge has acted with material irregularity and illegality in disallowing the proposed amendment merely on the ground of delay. The impugned order is, therefore, not sustainable. The revision petition is accepted, impugned order dated 18‑11‑1985 passed‑by the learned District Judge, Faisalabad, is hereby set aside. The application moved by the petitioners for amendment of the plaint is hereby accepted and they are allowed to amend the plaints accordingly. The case is remanded to the learned District Judge, Faisalabad, where the appeal is pending who shall direct the petitioners to file amended plaint within the time which may be fixed and thereafter the appeal of the petitioners shall be disposed of in accordance with law. There will be, however, no order as to costs.
H.B.T./A‑347/L Petition accepted.