A declaratory suit was instituted by Muhammad Shafi etc. now represented by Respondents Nos, 1 to 20 qua the suit property, that sale-deed dated 30.12.1985 and Mutations Nos, 1055 and 503 was void being illegal, result of fraud and collusion, which were liable to be declared so and to be cancelled accordingly. The suit was contested. On framing of necessary issues evidence led by the parties was recorded by the trial Court. On consideration of which, the learned trial Court dismissed the same vide judgment dated 14.10.2000. They preferred an appeal. While the same was pending, an application for seeking amendment therein was filed on 19.4.2001 firstly; whereas another application for amendment was made on 6.3.2003. By allowing the said applications the appellate Court proceeded to remand the matter to the trial Court by setting aside the judgment and decree under appeal. This was vide, judgment dated 17.4.2004, whereagainst this revision petition has been filed.
2. The learned counsel for the petitioner contends that a delayed attempt was made by the respondents/plaintiffs to seek amendment in the plaint, which was aimed at to overcome the judgment of the trial Court, it is contended that the applications were made merely for further prolongation of the litigation, which was wholly an unnecessary exercise. Mr. Abdul Sadiq Chaudhry. Advocate has supported the learned counsel for the petitioner whereas the learned counsel for Respondents Nos, 1 to 20 has strenuously argued that the appellate Court has committed no illegality in allowing the amendments in the suit and remanding the case to the trial Court. According to him such a power of amendment can be exercised by the Court at any time and at any stage as provisions of Order 6 Rule 17 of the Code of Civil Procedure, 1908 are to be construed liberally. Reference has been made by him to Muhammad Khan and 6 others v. Mst.
Ghulam Fatima and 12 others (1991 SCM R 970), Ghulam Abbas v. Muhammad Ashraf (1993 SCM R 2289), Muhammad Ramzan and others v. Liaqat Ali and others (2001 SCM R 1984), Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), Mir Mazar v. Azim (PLD 1993 SC 332), Qamar-ud-Din v. Muhammad Din and others (NLR 2002 Civil 239) and Iftikhar-ul-Haq etc. v. Khair Din etc. (NLR 2003 Civil 362).
3. After considering the material on the record, the view that I am inclined and persuaded to take in the matter does not necessitate any detailed discussion as to the respective contentions of the learned counsel for the parties. On perusal of the plaint and the applications made for amendment I have come to the conclusion that such amendments were wholly unnecessary as a consequence whereof the remand of the matter to the trial Court would merely prolong the agony of a lengthy litigation between the parties. In the first application made on 19.4.2001 the power of attorney dated 8.7.1975, which found mention in the sale-deed dated 30.12.1985 was sought to be assailed, whereas in the second application dated 6.3.2003 Khasra No, 2132 was sought to be added in the plaint. It may be noted that in the suit filed by the plaintiffs/respondents the very sale-deed dated 30.12.1985 was sought to be assailed/annulled. The said sale-deed has been brought on record, which makes mention of the power of attorney dated 8.7.1975 (subject matter of first amendment application), whereas the said sale-deed also contains Khasra No, 2132 (which was subject matter of second amendment application dated 6.3.2003). In case the plaintiffs succeed in seeking declaration that the sale-deed was result of fraud and collusion, and was inoperative as prayed by them in the suit, their object would be accomplished without seeking any amendment in the plaint. In such view of the matter, denovo trial of the suit after faming additional issues and recording of evidence was wholly a futile exercise, as the lis could be decided on the basis of pleadings and evidence already on the record. The learned appellate Court was thus wrong and acted illegally in remanding the matter to the trial Court by allowing applications for amendment.
The parties had already produced evidence to their satisfaction, which was sufficient and enough to decide the appeal.
In such view of the matter, setting aside the judgment dated 17.4.2004 this petition is accepted, result' whereof would be that the appeal filed by the respondents/plaintiffs before the First Appellate Court will be deemed pending, which shall be heard and decided in accordance with law.
The parties to cause their presence/representation before the appellate Court on 10.3.2005. Office to ensure the transmission of the record of the trial Court by the date mentioned above. No order as to costs.