' This civil revision assails judgment/order dated 12-7-2003 passed by the Additional District Judge, Lahore, whereby application under Order VI, rule 17, C.P.C. Filed by respondent, was accepted and case was remanded to the trial Court for fresh decision in accordance with law.
2. A short factual background of the case is that Mst. Sania Feroze respondent filed a suit for declaration against the petitioner claiming ownership of 1 Kanal, 2 Marlas and 21 sq. Ft. Of land commonly known as Plot No,4-B, Block-P, Gulberg-II, Lahore, which according to her, was purchased from one Mst. Fazal Bibi 'for a consideration of Rs,1,50,000 through a registered sale- deed dated 19-12-1982.
' Respondent asserted in her plaint that she is in possession of the plot in question, where she has raised certain constructions in form of a boundary wall and a room and has affixed a gate. She also pleaded that petitioner has no concern with the plot in question, but in spite of it she is denying her title and trying to dispossess her, with the help of her relations.
3. Petitioner being a defendant in the suit controverted the allegations in the plaint of the respondent and asserted her own title, that too through some registered sale-deed, which necessitated framing of issues and recording of evklence. Ultimately, suit of respondent was dismissed on 17-1-2001 by the trial Court mainly holding that respondent has not challenged sale- deed in favour of the petitioner.
4. Respondent aggrieved of the decision of the trial Court, dated 17-1-2001 filed an appeal before the Additional District Judge, Lahore, wherein she moved an application under Order VI, rule 17, C.P.C. Seeking amendment of her plaint. This application was contested by the petitioner and was dismissed mainly on the ground that the same was ambiguous: Consequently, respondent moved another application under Order VI, rule 17, C.P.C. This time again petitioner contested the prayed amendment on the grounds that by the proposed amendment complexion of the plaint will be changed, second application on the same cause of action is not maintainable under law and the matter having already been decided by the trial Court, amendment at a belated stage cannot be allowed. Respondent urged in her second application that since earlier application for amendment was not decided on merits hence the same is no bar for the application in hand. She also pleaded that sale-deed in favour of the- petitioner was not in her knowledge that is why it was not assailed at the time of filing of the suit. According to respondent the proposed amendment does not change the nature, complexion or cause of action of the original suit and being a formal nature, should be allowed.
5. Additional District Judge after hearing the parties on 12-7-2003 accepted application of the respondent and allowed to amend her plaint so as to challenge sale-deed in favour of the petitioner and remanded the case to the trial Court for fresh decision after entertaining the amended plaint and written statement from the parties. Petitioner being aggrieved of the decision of the Appellate Court dated 12-7-2003 has come up in revisional jurisdiction of this Court, for setting aside the order allowing amendment and remand of lis.
6. Learned counsel for the petitioner submits that after dismissal of a similar application of respondent second application on the same subject was not maintainable under the principle of res judicata. According to him by the proposed amendment, nature, complexion and cause of action will be changed and such an amendment is not permissible under law. He in this behalf relied on Mistri Muhammad Ramzan v. Noor Muhammad and 2 others PLD 1995 Quetta 5. Learned counsel for the petitioner further contends that sale-deed in favour of the petitioner was well within the knowledge of the respondents because it was relied by the petitioner in her written statement, as well as, in her statement as her own witness. He further submits that trial Court has given specific findings regarding sale in favour of the petitioner and at such a belated stage amendment, under discussion should not have been allowed.
7. I have anxiously considered the arguments of the learned counsel for the petitioner and have examined the record. Undeniably, at the time of filing of suit by the respondent, sale-deed in favour of the petitioner was not challenged and this was the main reason due to which her suit was dismissed by the learned trial Court. Respondent realizing the difficulty, moved an application seeking amendment of her plaint, but that application was dismissed by the Appellate Court on the ground that she has not clearly mentioned the proposed amendment and the application being ambiguous is not maintainable. This application was not decided on merits and her right to amend her plaint was not discussed or decided. Respondent in her second application with clarity mentioned the proposed amendment, whereby she prayed that she wants to add paras. 5-A to 5- D in the body of her plaint, which was specifically mentioned in the application and prayer clause of the plaint was proposed to be amended as under:-- ' "In the six line of prayer clause, further prayer after the words `a bona fide purchaser of the property in dispute'.
' It is further prayed that the sale-deed in favour of defendant No,1, bearing Document No,625, entered in Book No,1, Volume No,1346, allegedly registered with the Sub-Registrar (City), Lahore on 9-1-1983 may kindly be, declared as forged, fabricated, illegal and void document and the same is not binding upon the plaintiff qua her rights over the suit property."
8. Dismissal of application on technical grounds, without touching its merits and without determining right to amend the pleadings, is no bar for maintaining second application for the same purpose, as even under the provisions of section 11, C.P.C. Or principles, thereunder, second application would only be barred when earlier is decided on merits. Respondent's application for amendment of her plaint was previously dismissed on the ground of being ambiguous and subsequently, unambiguous application, detailing with clarity the, proposed amendment, cannot be thrown out, on the ground that a similar application was earlier dismissed. The proposed amendment neither changes the cause of action of the respondent nor it alters complexion or nature of the suit, which will remain the same with regard to title of the respondent except that earlier plaintiff had said that petitioner has no right, title or interest to the property and now she will say that her sale-deed is forged, fabricated and void, but the complexion of the suit will remain intact. I do not see an eye to eye with the arguments of the learned counsel for the petitioner that cause of action of the suit, by the proposed amendment, will be changed. Accordingly to my feelings the amendment allowed by the Appellate Court is of formal nature and should have been allowed by the trial Court itself when it came to know that petitioner is possessed of some sale- deed, as well. Petitioner will have a fair chance to defend her title by leading evidence in support of her sale-deed and thus, it appears that no prejudice by the amendment allowed, will be caused to her rather it goes to the benefit of the petitioner because title to the property in question will be determined more effectively and for all times to come. Amendment of pleadings has always been liberally allowed by the Courts subject to the conditions that cause of action and complexion of the suit is not changed which, as I have already concluded, will remain intact. In a similar situation amendment of pleadings was allowed by the Honourable Supreme Court of Pakistan in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 even at the stage of appeal before the apex Court. In another case amendment was refused by the trial Court but was ultimately allowed by the Honourable Supreme Court of Pakistan in the case of Ch. Abdul Rashid v.
Ch. Muhammad Tufail and others PLD 1992 SC 180. A reference can also be made, in this behalf, to the cases of M. Saeed Sehgal v. Kazi Khurshid Hassan, Proprietor, India Film Bureau PLD 1964 SC 598 and Mst. Barkat Bibi v.Khushi Muhammad and others 1994 SCMR 2240.
9. For what has been discussed above, I am of the considered view that the Appellate Court has exercised its discretion and jurisdiction in accordance with law and judgment of the superior Courts and in result thereof has correctly remanded case to the trial Court for its decision afresh, on merits, in accordance, with law, after receiving the amended pleadings of the parties. No illegality or irregularity has been committed by the Appellate Court, in absence of which no interference can be made in revisional jurisdiction of this Court. This revision petition having no merit in it, is dismissed in limine, with no order as to costs.