' AKHTAR ZAMAN MALGHANI, J.---Following relief has been claimed in the instant Constitutional Petition:-- "It is, therefore, respectfully prayed that orders impugned 21-10-2004 and 10-11-2004 passed by respondents Nos.5 and 6 respectively be set aside the Constitutional petition may kindly be allowed, in the interest of justice, equity and fairplay."
2. Briefly stated, facts of the case are that the respondents instituted a suit for declaration, partition and permanent injunction against the petitioners on the averments that property bearing Khewat No.1, Khatooni No.1, Khasra No.3192/20 measuring about 798 acres is joint property and has not been yet partitioned amongst the co-sharers, but the petitioners/defendants are trying to occupy better portion of the property.
3. The suit was contested by the petitioners by way of filing written statement and various objections were taken with regard to maintainability of suit including non-joinder of necessary parties and that the property was privately partitioned amongst the co-sharers and a deed in this regard was also reduced into writing. After filing of written statement the plaintiffs moved an application under Order 23 Rule 1 (2) C.P.C. For withdrawal of suit with permission to file a fresh suit which application was, too, contested by the petitioners and the learned trial Judge dismissed the application with the observation that the defects pointed out for withdrawal of suit can be cured by way of seeking amendment in the plaint. The plaintiffs challenged the said order dated 30-12-2003 before the District Judge, Pishin which was transferred on the file of Additional District Judge, Pishin, who vide order dated 17-2-2004 accepted appeal and allowed the plaintiffs to withdraw the suit with permission to file the same afresh. The petitioners challenged the order of Additional District Judge, Pishin in Revision Petition No.41 of 2004 before this Court which was disposed of on 14-6- 2004 with consent of parties by setting aside the order of Additional District Judge, Pishin and restoring the order of Senior Civil Judge, Pishin. However, it was further directed that amendments be allowed to the plaintiffs to include property known as Kadai measuring 6603 rods 16 pols mentioned in the agreement dated 10-4-1996 in the suit. None of the parties further challenged order of this Court dated 14-6-2004, as such; same has attained finality.
4. It appears from the record that the plaintiffs filed an application under Order 6 rule 17 C.P.C. For amendment of plaint which application was allowed by the trial Court vide its order dated 21-10- 2004. The revision petition filed by the petitioners against the said order was also dismissed by District Judge, Pishin on 10-11-2004.
5. We have heard the learned counsel for the petitioners who mainly contended that proposed amendments would change whole complex of the suit, as such; legally could not have been allowed by the trial Court. He further contended that the suit was not maintainable in its present form and should have been dismissed in view of objections taken in the written statement but the learned trial Court instead of dismissing the suit allowed the plaintiffs to amend the suit by meeting out the objections taken in the written statement and the order of this Court passed in revision petition, which was made basis for allowing amendment, was misconstrued by both the Courts below.
6. We have carefully considered the contentions put forth by the learned counsel and have also gone through the impugned orders as well as earlier orders passed on the application filed under Order 23 Rule 1 (2) C.P.C. It may be seen that the respondents filed a simple suit for declaration, partition, permanent injunction and consequential relief against the petitioners on the averments that they are trying to occupy the better/valuable portion of the un-partitioned land. The petitioners raised several objections to the maintainability of suit. It was specifically stated that the suit was bad for non-joinder of other co-sharers and also not maintainable in view of partition deed dated 10-4-1996 whereby; the property had already been partitioned.
7. After filing of written statements the plaintiffs filed an application under Order 23 Rule 1 C.P.C. On the ground that one of the property jointly owned by the parties known as Kadai have been inadvertently not mentioned in the plaint which is to be included in the suit as well as other co- sharers are required to be impleaded in the suit. Besides the withdrawal was also sought on the ground that the defendants claimed on the strength of agreement dated 10-4-1996 that the properties have already been partitioned, which agreement was accepted by the plaintiffs but earlier the defendants did not agree to act upon such agreement.
8. The said application was contested by the petitioners. The learned Senior Civil Judge, Pishin dismissed the application by observating that the defects pointed out were not of such a nature which could warrant withdrawal of suit with permission to file a fresh suit and can be cured by applying for amendment of the plaint. The said order was upheld by this Court in revision petition with further direction that the plaintiffs be allowed to amend the suit by including other property jointly owned by the parties and mentioned in the agreement dated 10-4-1996. Said order has attained finality as it was not further challenged. The petitioners cannot be allowed to approbate and reprobate in the same breath. On the one hand they contested the application for withdrawal of suit on the grounds that the formal defects pointed out for withdrawal of suit can be cured by way of amending the plaint and thereafter when the plaintiffs filed the application for amendment, they contested the same and attempted to technically non-suit the plaintiffs. We have also gone through the proposed amendment and are not inclined to accept contention of the learned counsel that it would change whole complexion of the suit. The petitioners themselves asserted that the properties have been partitioned between the parties in pursuance to partition deed/agreement dated 10-4-1996, therefore, the proposed relief, i.e. The official respondents be directed to partition the land in light of the agreement dated 10-4-1996, could not be said to be a relief changing whole complexion of the suit. The object of rule 17 of Order 6 is that if amendment is necessary for the purpose of determining the real matter in controversy, it should be allowed provided other party is not prejudiced. All rules of Court are intended to secure the proper administration of A justice, therefore, the powers of amendment conferred upon the Court should be liberally exercised. In the judgment reported in (1977 SCMR 284), the Hon'ble apex Court held as under:- "It will be seen that the real question in deciding as to the propriety of allowing an amendment of the pleading is, to use the words employed in the relevant rules itself, whether the amendment is necessary for the purpose of determining the real question in controversy between the parties. If so, then leave to amend ought to be allowed liberally, provided of course that it does not have the effect of setting up an altogether different cause of action."
The Courts are also required to avoid multiplicity of litigation and if it can be avoided by allowing the amendment, the same should be allowed. In this regard we are fortified by the judgment reported in 1974 SCMR page 131. It would be advantageous to reproduce the relevant observation:- - "Learned counsel for the petitioner repeated the argument which was repelled by the learned Single Judge by the impugned Order. It is difficult to see how the nature of the suit will be altered by the new plea. It cannot be gainsaid that unless respondent No.1 is allowed to raise this plea, his subsequent suit on the new plea would be barred under Order II, rule 2, C.P.C. The application for amendment has been made at the earliest stage when the petitioner and respondent No.2 had not even filed their written statements. The Courts have always inclined to allow leave liberally to enable the parties to bring all points relating to a dispute between the parties before the Court so as to avoid multiplicity of proceedings. We, therefore, find no force in this petition which is hereby dismissed."
In view of what have been stated above, we; find no illegality, grave irregularity or jurisdictional defect in the impugned orders calling for interference by us in exercise of Constitutional jurisdiction. The petition being devoid of merits, is dismissed in limine accordingly.