' Shahi Bakhsh son of Haji Zarin Khan instituted a suit for declaration, permanent injunction and mandatory injunction against Aqalmand and others, sons, widow and daughters of Haji Bakht Zarin Khan. It was alleged by the plaintiff that he was owner of a shop, as per details in the pliant, which was 154/2 feet in length, and 9 feet in breadth, which was situated in the area of Green Chowk, Mingora. This shop also contained a godown over the roof of the ground floor which was of the same size. His suit was also against Khurshid Ali defendant No.8, who was tenant in the said shop previously and had allegedly colluded with defendants Nos.1 to 7, without informing the plaintiff, when defendants Nos.1 to 7 did put steel bars with cement on some part of the godown in order to make a path for the stairs of the Hotel of defendants Nos.1 to 7.
2 The suit was contested by defendants Nos.1 to 7 as well as defendant No.8. Issues were framed on the basis of the pleadings of the parties. The plaintiff examined Javed Iqbal, son of plaintiff, as .PW.l and closed the evidence. The defendants examined Aqalmand defendant No.1 as DW.1 while defendant No.8 was examined as DW.2 and closed the evidence. Muhammad Afzal Khan Patwari was appointed as local commissioner who reported that he inspected the spot in the presence of the parties, that encroachment was made over the shop of the plaintiff, that the ground floor was used as shop while the first floor was used as godown.
3. The learned Civil Judge-III/Allaqa Qazi, Swat, decreed the suit of the plaintiff against defendants No.1 to 7 to the effect that the defendants would either pay the market value of the encroached area within 4 months from the date of announcement of the said judgment, which was 6-10-2000, or would give other property of defendants Nos.1 to 7 in exchange to the plaintiff. He also declared that defendant No.8 was an unnecessary party as the cause of action or claim was not proved by the plaintiff against him. On appeal by both sides against the said judgment and decree, the learned Additional District Judge/Izafi Zilla Qazi, Swat, accepted Appeal No.64/13 to the effect that defendant No.8 was a necessary party and defendants Nos.1 to 7 were directed to remove encroachment over the area of the plaintiff. Appeal No.65/13 of the defendants was, however, dismissed. Appeals Nos.64/13 and 65/13 were instituted originally on 19-12-2000 and 5-12-2000 respectively, and were decided vide judgment and decree dated 28-4-2003.
4. The grounds taken by Aqalmand and others, petitioners, were that there was an old partition deed between the parties on the basis of compromise and the disputed property had come to the share of the predecessor of petitioners and they were in possession of the same since then. This issue was discussed at length. The learned counsel for the petitioners, for the purpose of permission for amendment at any stage relied on PLD 1985 SC 345, 1993 SCMR 228, PLD 1993 SC 336 and 1988 SCM R 1782, and also submitted that they be allowed to take this issue in the written statement so that justice may be done properly, and requested that the document be placed on record. The provisions of the Code of Civil Procedure, 1908 are, however, clear to the effect that a document relied upon by a party shall have to be listed in the list of documents produced by such party along with plaint or written statement so that the opposite party may be in the knowledge of the same in advance, and is in a position to take exception to the same if he so likes, and he is not taken by surprise. Amendment of the plaint or written statement, is not allowed in the circumstances when a party intends to fill up the gaps in his evidence and to remove the lacunae and defects in such Evidence.
5. It is not on record that the said document was not available with the defendants at the submission of their written statement and could not be produced by them at the time of their evidence. The petitioner, therefore, are not entitled to any concession at this stage of proceedings.
Even otherwise, the litigation is not regarding the joint properties of the parties, but regarding the property of one party for the encroachment on it by the other party. It is an admitted fact on record that the length of shop of Shahi Bakhsh is 15-1/2 feet and the breadth of the same is 9 feet. He is, therefore, entitled to the same length and breadth on the roof of the said shop. But it has been proved that the appellants/petitioners have encroached on some of the said roof as is clearly mentioned by the witness of the plaintiff, indirectly admitted by the witness of the defendants and clearly reported by the local commissioner, and accepted by the learned Original Court as well as by the learned Appellate Court.
6. The other ground was that the plaintiff had delayed the institution of the suit for more than 12 years. It has been proved, and accepted by the two Courts, that the plaintiff did not know about the encroachment long ago as the suit shop was rented to defendant No.8 who had not informed the plaintiff regarding the encroachment over the roof of the shop. PW-1 clearly stated that it was about 7/8 months after obtaining possession from defendant No.8, that the plaintiff came to know about the encroachment, after checking the godown. This issue of fact has been decided in favour of the plaintiff by both the above mentioned learned Courts.
7. It was further contended by the learned counsel for the petitioners that respondent No.1 concealed the facts from the Courts, misled the Courts and that the decree in his favour was an ill- gotten gain which should not be perpetuated. The evidence of the parties, however, is clear and straight-forward and each of the parties produced only one witness, PW-1 recorded his detailed statement and he was thoroughly cross-examined by the petitioners as well as by respondent No.2. The petitioners had the chance to bring out the facts, if any, concealed by the plaintiff, which has not been done by them. It means that all the facts are available on record have been duly taken into consideration by the learned Courts mentioned above.
8. The learned counsel for the petitioners argued that the decree of the learned Appellate Court will cause `Zarare-Shadeed' to the appellants which has to be avoided. The learned counsel for respondent No.1 submitted that the decree of the learned Appellate Court was correct and was according to the facts of the case. The Court is not expected to allow itself to be used for securing such an ill-gotten gain. Providing a due right to a rightful party has to result in loss to that extent to the opposite-party, but such party has to sustain that loss due to his own conduct, and the injustice done by that party. There is no `Zarar-e-Shadeed' to a party when a right of other party is taken from it in order to meet the ends of justice.
9. The learned counsel for the petitioners relied on AIR 1921 Lahore 110, AIR 1921 Nagpur 167, AIR 1924 Calcutta 438, AIR 1925 Oudh 258, AIR 1925 Calcutta 993, AIR 1927 Nagpur 180, AIR 1937 Allahabad 512, and AIR 1939 Lahore 502, and discussed the conduct of the plaintiff in detail. He submitted that the plaintiff had acquiesced by remaining silent over the fact of construction of the appellants/petitioners. He submitted that the construction was made in seventies and eighties, and the plaintiff knew about the same, but he remained silent for a long time. It has, however, been proved on record that the plaintiff did not know about the said encroachment for a very long time and defendant No.8 had not informed him of the said encroachment. The suit of the plaintiff is neither regarding the property under the Hotel nor the property which was previously rented by the petitioners to the Allied Bank of Pakistan. The construction of those properties was publicly known but this case-is not concerned with the same.
10. The learned counsel for the respondent No.1, on the other hand, relied on PLD 1997 SC 2051, PLD 2002 SC 293 and 2003 CLC 607 while arguing the case of respondent No.1 to the effect that the powers of the Revisional Court under section 115 of the Code of Civil Procedure, 1908, were limited in nature. The other cases on the subject of Revision are 2005 SCM R 135, 2005 CLC (Peshawar) 165, 2005 CLC 154, 2002 SCMR 222, 2001 CLC 1819, 2002 M LD 861, 1994 SCM R 22, 2003 SCM R 1476 and 2003 CLC 1428.
11. The Court has the jurisdiction and authority to allow amendment at any stage but the main criterion for the same is to bring clarity on record for doing full justice to the parties. The amendment in this case is not necessary at this stage because the document could have been produced by the petitioners at the relevant time and in the relevant Court, and that the dispute is not either regarding joint property or regarding the property of the defendants. The suit of the plaintiff is only to the extent of his own property, which might have been given to him in consequence of the document mentioned by the petitioners, but was admittedly his property at the time of institution of the suit.
12. Both the Courts mentioned above have properly exercised jurisdiction vested in them, have properly appreciated the evidence on record, and no infirmity in their judgments and decrees/orders could be shown on the face of record. Both the Courts have come to the same concurrent findings on the basis of the facts available on record. Interference by this Court in the concurrent findings is not proper in the circumstances of this case.
13. In the light of what has been discussed above, I do not find any merit in the present Civil Revision, and I dismiss the same. But parties are left to bear their own costs in the circumstances of this case.