' AMIR HANI MUSLIM, J.---By consent of all the learned counsel this petition, which was fixed for Katcha Peshi, is admitted to regular hearing and is heard and decided today.
' Through this petition the petitioners have challenged the orders dated 3-2-2003 passed by ' learned IV Additional District Judge, Hyderabad, in Civil Revision No.38 of 2002 wherein he has affirmed the order dated 9-4-2002 passed by the III Senior Civil Judge Hyderabad in Suit No.122 of 1988 dismissing the application of the petitioners made under Order VI, rule 17, C.P.C.
' The facts as they appear from the pleadings of the parties are that on 27-3-1983, the petitioners filed suit for declaration and injunction against the respondents in the Court of IV Senior Civil Judge, Hyderabad with the following prayers: ' That this Honourable Court may be pleased to declare and adjudge that sale agreement as well as General Power of Attorney both dated 3-12-1965 in respect of agricultural lands shown in plaint are fake and forged documents and these documents do not bear the signatures of the deceased Saidullah son of M. Muhammadullah and the same are null and void and are not binding upon the plaintiff.
' That this Honourable Court may be pleased to declare and adjudge that sale-deed dated 24-2- 1980 executed on the basis of General Power of Attorney dated 3-12-1965 by the defendant No.4 in favour of defendants Nos.5 and 6, is illegal void and does not confer any right title or interest in the defendants and it is not binding upon the plaintiff under law.
' That this Honourable Court may be pleased to declare that order passed by the defendant No.2 on 6-5-1987 in Revision No.S-15- 12-10 Roader 81 restoring the entries No.260 in the Record of Rights in respect of agricultural lands shown in the plaint, .Is mala fide, illegal, void, without jurisdiction and with no legal effect.
' That this Honourable Court may be pleased to declare that the plaintiffs are still legally entitled to inherit the disputed agricultural lands shown in the plaints, as heirs of deceased owners Saidullah according to Mohamedan Law on inheritance.
' That this Honourable Court may be pleased to grant Permanent Injunction in favour of the plaintiffs and against the defendants Nos.5 and 6, restraining them permanently from transferring the title by way of gift, exchange, sale or any other mode in favour of any other person, in any manner whatsoever.
' That costs of this suit be saddle upon the defendants.
' Any other relief which this Honourable Court deems fit and proper may be granted to favour of the plaintiffs.
' The petitioners in their plaint have pleaded that they are the owners of the subject property, which was sold by the father of the petitioners through petitioner No.1 to the respondents Nos.7 and 8 by virtue of a sale agreement dated 4-9-1975 and possession was also handed over to them. The petitioners further pleaded that the respondents Nos.5 and 6 claims to have purchased the property through respondent No.4, who claims to be the attorney of the deceased father of the petitioners. The petitioners have pleaded that neither the petitioners nor their deceased father ever executed any power of attorney in favour of the respondent No.4 authorizing him to sell the property to respondents Nos.5 and 6 and have sought cancellation of the Power of Attorney purported to have been executed by the petitioners' father and the sale-deed executed by the respondent No.4 in favour of the respondents Nos.5 and 6.
' The respondent Nos.4 to 6 have filed their written statements and along with their written statements they have also made an application under Order VII, rule 11, C.P.C. By order dated 23-7- 1996 the application of the respondents Nos.5 and 6 was allowed by the trial Court and the plaint of the petitioners was rejected against which the petitioners preferred Appeal. No.94 of 1994, which appeal of the petitioners was allowed on 13-11-1997 whereby the matter was remanded to the trial Court for decision on merits. The respondents Nos.5 and 6 preferred a Revision Application No.15 of 1998 against the order dated 13-11-1997 passed in Appeal No.94 of 1996 before this Court. On 16-4- 2004 the revision preferred by the respondents Nos.5 and 6 was disposed of with the directions to the trial Court to dispose of the matter expeditiously without modification of the order passed in Appeal No.94 of 1996.
' During the pendency of the aforesaid proceedings on 7-1-2002,the petitioners made an application under Order VI, rule 17, C.P.C., before the trial Court seeking amendment in the memo.
Of the plaint and in the prayer clause. In the application under Order VI, rule 17, C.P.C., it was pleaded that during the pendency of the suit the respondents Nos.5 and 6 had dispossessed the respondents Nos.7 and 8 in the years 199293. Since the petitioners have not prayed for the relief of possession on the date of filing of the suit as they were in constructive possession through respondents Nos.7 and 8. Since the respondent Nos.7 and 8 were dispossessed during the pendency of the suit, the relief of possession was sought by the petitioners through proposed amendment. This application was opposed by the respondents' Nos.4 to -6, who filed their counter-affidavits. The trial Court by order dated 9-4-2002 dismissed the application of the petitioners against which the petitioners preferred Revision No.38 of 2002 before the learned IV Additional District Judge Hyderabad. On 3-2-2003, the learned IV Additional District Judge Hyderabad dismissed the Revision Application of the petitioners against which the present petition has been filed.
' It has been contended by the learned counsel for the petitioners that the Courts below had misread the pleadings of the parties while dismissing the application of the petitioners under Order VI, rule 17, C.P.C. He submits that the amendments in the pleadings is ought to be allowed liberally and delay in seeking amendment in the pleadings is no ground of refusal. He further submitted that the amendment sought by the petitioners would neither change the character nor its nature nor the complexion of the suit and the proposed amendment was 'of consequential relief and should have been allowed by the Courts below. He further submitted that during the pendency of the suit, the respondents Nos.7 and 8 were dispossessed by the respondents Nos.5 and 6 and the subsequent change of events could not be lost sight by the Courts below while determining the rights of the parties and, therefore, the refusal of the Courts below in allowing the proposed amendment was untenable in law.
' The learned counsel for the petitioners has further submitted that both the Courts below were in error in holding that once the property was sold by the petitioners to the respondents Nos.7 and 8, the petitioners had lost interest in the property and the application for the amendment in the pleadings could only have been made by the respondents Nos.7 and 8 who were dispossessed. He submits that the petitioners remains owners of the property unless it is transferred in the name of the respondents Nos.7 and 8. Mere delivery of possession of the property by virtue of the sale agreement to the respondents Nos.7 and 8 would not confer title on them nor would it disentitle the petitioners from making the application for the proposed amendment in the plaint. The petitioners made the application for amendment in order to perfect their title which they were to convey to the respondents Nos.7 and 8. The learned counsel has relied upon the case of Habibur Rehman v. Mst.
Wandania reported in PLD 1984 SC 424 in support of his contentions.
' On the question that seeking amendment of the relief of possession in a declaratory suit, was consequential relief, the learned counsel has relied upon the case of Muhammad Mian v. Syed Shamimullah reported in 1995 SCM R 69 at page 71. In support of his arguments that amendment in the pleading& are to be allowed liberally if such amendment does not change the character and/or nature of the pleadings, he has also relied upon the case of Mst. Gulam Bibi v. Sarsa Khan reported in PLD 1985 SC 345, where their lordships has held that the amendment, which does not change the nature or complexion of the suit should be liberally allowed and delay in making an application for amendment is no ground to refuse such an amendment.
' Mr. Naimatullah Soomro, learned counsel for the respondents Nos.5 and 6 has submitted that the petitioners were not entitled to seek relief of the nature in exercise of Constitutional jurisdiction.
According to the learned counsel this Court in exercise of Constitutional jurisdiction grants equitable relief and equity demands that a person who sleeps over his right is disentitled hi law to seek such relief from this Court by invoking Constitutional jurisdiction. It is submitted by Mr. Soomro that the application for the proposed amendment was made in 2002 whereas the suit was filed in 1988. He further submits that proposed amendment in the plaint for the relief 'of possession would change the complexion of the suit, which the law does not permit. According to the learned counsel a party on the date of filing of the proceedings was obliged in law to see all the reliefs to which it was entitled to failing which the rigors of Order II, rule 2, C.P.C., would come in its way.
According to the learned counsel subsequent amendment in the plaint for possession and, that too, after more than ten years, would change the nature of the proceedings, could not be allowed by a Court and, therefore, the impugned orders of both the Courts below were proper and do dot warrant interference by this Court.
' He further submits that the Revision Application No.15 of 1998, preferred by the respondents Nos.5 and 6 was disposed of by this Court with the directions to the trial Court to decide the case expeditiously in accordance with law but the petitioners, in order to defeat the very spirit of the order of this Court, has made application for amendment of the plaint to further delay the proceedings. The learned counsel in support of his contentions has relied upon the cases of Mst.
Imam Hussain v. Sher Ali Shah reported in 1994 SCM R 2293, M. Saeed Sehgal v. Kazi Khurshid Hassan, Proprietor India Film Bureau reported in PLD 1964 SC 598 and the case of Gul Roz v.
Sargand 2003 CLC 116.
' The learned counsel for the respondents Nos.5 and 6 has further submitted that the Honourable Supreme Court in the case of Noor Muhammad v. Sarwar Khan reported in PLD 1985 SC 131 has held that this Court in exercise of Constitutional jurisdiction would not rectify the decision of the Courts below, if such decisions are based on concurrent findings of facts besides the fact that such decisions are outcome of a wrong view. Learned counsel has further submitted that the new pleas in the suit by way of amendments, are not permissible and no amendment of the nature can be granted. He submitted that the proposed amendment in the plaint would change the complexion of the suit which the law prohibits.
' Mr. Masood Noorani, learned A.A.-G. Has not opposed the grant of the petition and has submitted that the prayer of possession by way of proposed amendment would not change the complexion of the suit.
' We have heard the learned counsel and have perused the record. The question whether the grant of prayer for possession by proposed amendment in the suit would change the nature and/or complexion of the suit and whether delay in seeking proposed amendment in the suit is barred by law.
' Admittedly, in the plaint the petitioners have pleaded that their ownership and factum of sale of the property in question to the respondents Nos.7 and 8 by way of sale agreement and have disputed the legality and authenticity of the sale-deed in favour of the respondents Nos.5 and 6 executed by the respondent No.4 as Attorney of the deceased father of the petitioners. It has further pleaded in the suit that respondent No.4 was never authorized either by them or by their deceased father to execute sale-deed in favour of the respondents Nos.5 and 6 and the power of attorney as well as sale-deed in favour of the respondents Nos.5 and 6 were forged documents. At the same time it is a fact that the sale in favour of the respondents Nos.7 and 8 has not been finalized as the sale agreement itself is not a title document. In order to finalize the sale in favour of respondents Nos.7 and 8, the law requires registration of the instrument in their favour in terms of section 49 of the Registration Act. Mere putting in possession of the property to the respondents Nos.7 and 8 by virtue of sale agreement would not constitute valid sale in terms of section 53-A of the Transfer of Property Act. In A this regard the principles laid down in the judgment of the Honourable Supreme Court in the case of Habibur Rehman v. Mst. Wandania reported in PLD 1984 SC 424 fully supported the case of the petitioners inasmuch as the petitioners are seeking declaration in regard to their ownership and unless they seek consequential relief of possession which they claim to have been necessitated, owing to dispossession of the respondents Nos.7 and 8 by the respondents Nos.5 and 6 during the pendency of the suit, they would not perfect their title nor could it be conveyed to the respondents Nos.7 and 8.
16. The question whether the persons claiming ownership, if during the pendency of the proceedings on account of loss of possession, can seek proposed amendment in the plaint for possession and whether such an amendment, when declaration in regard the ownership has already been sought, would amount to changing the complexion of the suit is fully answered by the Honourable Supreme Court in the case of Muhammad Mian v. Syed Shamimullah reported in 1995 SCM R 69 at page 71.
17. We are clear in our mind that if a party claiming ownership seeks declaration of ownership if fails to seek the relief of possession at the time of filing of a suit cannot be debarred from seeking relief of possession by way of amendment at a later stage of the proceedings whereas in the present proceedings, the petitioners' case is on better footing as they claims that the respondents Nos.7 and 8, who were enjoying possession on their behalf were dispossessed by the respondents Nos.5 and 6 after four years of the filing of the suit.
18. The ground on the basis of which the amendments are sought are not required to be proved during hearing of the amendment application. The Courts below while deciding the application have over looked the scope of Order VI, rule 17, C.P.C. While rejecting the amendment application of the petitioners. Allowing an amendment in the pleadings would not amount to decreeing the suit itself as is reflected from the tenor of the impugned orders. The parties in support of their version on grant of amendment have to lead evidence in support of the pleadings and only then the Court on the basis of such evidence would give findings and pass judgment. In the present case both the Courts below fell in error by holding that since the petitioners and their witnesses were examined, therefore, the amendment sought by the petitioners was barred by limitation. Delay alone in applying for amendment would not be ground for refusing amendment in the plaint as has been held by the Honourable Supreme Court.
19. We have further noticed that both the Courts below while deciding the application under Order VI rule 17, C.P.C., have assessed the evidence of the petitioners. The assessment of the evidence for the purposes of deciding an application for amendment is unwarranted by law. The Courts have to confine themselves to the proposed amendment and have to examine only as to whether such amendment was necessary and whether such an amendment would change the nature and/or scope of the suit.
20. The question in regard to .The delay in making the amendment application has been explained by the learned counsel for the petitioners who submitted that the record and proceedings of the trial Court was with this Court for substantial period of time and, therefore, the application was delayed. Even otherwise such delay was insignificant inasmuch as the respondents Nos.5 and 6 are in possession of the property to the disadvantage of the petitioners and respondents Nos.7 and
8. The learned counsel for the respondents Nos.5 and 6 has relied upon the case of Mst. Imam Hussain v. Sher Ali Shah reported in .1994 SCM R 2293. The facts of the said case were distinguishable inasmuch as the Honourable Supreme Court while deciding the said case has held that if the proposed amendment was allowed, it would change the character and the complexion of the suit. It was further observed that question of limitation in such amendment would also be examined while passing an order on such application of amendment. However, in the present case the nature of the amendment sought is that of consequential relief, therefore, the judgment of the Honourable Supreme Court not come in the way of the petitioners on the ground of limitation.
21. The learned counsel for the respondents Nos.5 and 6 has further relied upon the case of Noor Muhammad v. Sarwar Khan reported in 1985 SC 131 wherein their lordship has held that even if decision of the Courts below, on the questions of fact and/or law were not correct, did not necessary renders it without lawful authority and in exercise' of Constitutional jurisdiction, this Court is not obliged to correct such defects of the Courts below. With profound respect to the learned counsel for the respondents Nos.5 and 6, this view of the Honourable Supreme Court has been 'modified in the case of Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal reported in 1987 SC 447 at page 452 wherein their lordships has held that if the Tribunal or the forum below has wrongly exercised the authority vested in it, this Court in exercise of the Constitutional jurisdiction would cure such defects and the view taken in the case of Noor Muhammad v. Sarwar Khan (PLD 1985 SC 131) which was based on the view reported in 1974 SCM R 223 is no more a good law.
22. For the aforesaid reasons we are of the considered view that the proposed amendment in the plaint in no way change either the character or nature or complexion of the suit and such an amendment should have been allowed by the Courts below. Mere delay in making such an application for amendment seeking consequential relief cannot be refused as the amendment was necessary and ought- to have been liberally allowed as has been held by the Honourable Supreme Court in the case of Ghulam Bibi v. Sarsa Khan reported in PLD 1985 SC 345.
23. Since this is an old matter, therefore, we while allowing this petition direct the trial Court to allow the petitioners to amend their plaint within two weeks after the date of hearing of the suit before the trial Court viz. 27-8-2004 when the parties will appear before the trial Court and the defendants/respondents shall file their amendment written statement(s) within 15 days, after the amended plaint. The trial Court shall frame the issue(s)/additional issue(s) if any within one week.
Whereafter the petitioners and their witnesses may lead their evidence, if they so choose, in support of their claim. The evidence of the petitioners and their witnesses shall be concluded on priority basis preferably within two weeks from the framing of the issues, whereafter the defendants/ respondents shall lead their evidence and their evidence shall also be concluded preferably within three weeks. After the conclusion of the evidence of the parties the Court shall on the basis of the evidence would pronounce the judgment after hearing the arguments of the parties within three weeks- thereafter.
24. This petition stands disposed of in above terms.