' JAVED IQBAL, J.---The above captioned petitions for leave to appeal are directed against the judgment dated 9-2-1999 passed by learned Division Bench of High Court Sindh, Karachi, whereby the appeals preferred on behalf of respondents were allowed setting aside the order dated 15-2- 1989 passed by learned Single Judge whereby application under Order VI, Rule 17, C.P.C. Filed by the respondents were dismissed.
2. "Respondents had filed separate suits in 1985 under Order XXXVII, Rule 2, C.P.C. On the basis of promissory notes executed by the petitioner According to the respondents/plaintiffs, in 1982, petitioner had approached them and requested for friendly loan for the amounts mentioned in the promissory notes which requests were accepted by the respondents; loans were advanced and as a consideration executed promissory notes by way of security in favour of the respondents.
According to the respondents, the loans were not returned and summary suits were filed. Later on by consent leave was granted on security, Evidence of the respondents had been recorded in 1989 when applications were made under Order VI, 'Rule 17, C.P.C. For seeking the following amendments:-- "PROPOSED AMENDMENTS.
(8) That in the alternative, the plaintiff may be allowed to prove the original consideration on the basis of accounts maintained by the parties for the businesses done by the defendant on behalf of the plaintiff and his firms. The statement of accounts along with the parchis/vouchers in the hand of Defendant and the letter dated 24-8-1982 of his counsel are submitted as Annexures `B' and 'C' respectively.
IN PRAYER CLAUSE ' The following may be added as. Para. (D): "In the alternative this Hon'ble Court be pleased to pass decree for Rs,7,00,000 against the Defendant in the ordinary manner."
3. As observed, the applications for amendment for the plaint were rejected by the learned Single Judge hearing the suit on the original side of the High Court but by the impugned common judgment dated 9-2-1999, High Court Appeals filed by the respondents have been allowed," hence these petitions which are being disposed of by this common order involving similar questions of facts and law.
4. Heard Mr. Muhammad Sharif, learned Advocate Supreme Court on behalf of petitioner who mainly contended that amendment sought by the respondents were inconsistent with their pleadings and evidence which has come on record and besides that the proposed amendment appears to be ambiguous as necessary details were not furnished qua the business dealing which culminated into the promissory note allegedly executed by the petitioner. It is urged with vehemence that the claims based on business accounts were admittedly time-barred and a unique device has been evolved to frustrate the relevant provisions of Limitation Act, 1908 under the garb of proposed amendment. It is also contended that the proposed amendment is based on mala fides. It is contended emphatically that whereas suit filed under Order XXXVH, C.P.C. On a promissory note specifically alleging that consideration for the said promissory note was a friendly loan given in cash on the day the promissory note is alleged to have been executed and where the said promissory note is found to be inadmissible in the evidence the question of any amendment in the pleadings does not arise enabling the respondents to base their claim on the previous alleged accounts, details whereof were never furnished. It is also argued that learned Judges of the. Division Bench have misconstrued and misinterpreted the meaning of inconsistent pleadings by holding that such inconsistent/pleadings are permissible.
5. We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 15-2-1998 passed by learned Single Judge and judgment dated 9-2-1999 delivered by learned Division Bench of High Court of Sindh, Karachi. After having gone through the entire record we are of the considered view that the pivotal question which needs determination would be as to whether the amendment sought to be made can be equated with that of an alternative plea or otherwise? In fact the respondents wanted that in case the decree on the basis of promissory note is not granted by way of summery procedure, the suit may be treated as an ordinary suit and decree be awarded subject to merit by following the ordinary procedure. At first instance we intend to examine the following proposed amendment:-- "PROPOSED AMENDMENTS.
(8) That in the alternative, the plaintiff may be allowed to prove the original consideration on the basis of accounts maintained by the parties for the businesses done by the defendant on behalf of the plaintiff and his firms. The statement of accounts along with the parchis/vouchers in the hand of Defendant and the letter dated 24-8-1982 of his counsel are submitted as Annexures 'B' and 'C' respectively.
IN PRAYER CLAUSE ' The following may be added as para. (D): "In the alternative this Hon'ble Court be pleased to pass decree for Rs,7,00,000 against the Defendant in the ordinary manner."
6. There is no cavil with the proposition that the proposed amendment can neither change the complexion of the suit nor introduced B a new cause of action. No amendment will be allowed where its effect would be to convert the character of the, suit. Shahsawar v.. Najamul Hassan 1981 SCMR 730, Khudeja v. Jehangir Khan 1971 SCMR 395, Atlantic Steamer's Supply' CQ. V. m.v. Titisee PLD 1993 SC 88 and moreso "the fundamental character of the suit including the subject-matter and cause of action cannot be allowed to be substituted." Ghulam Bibi v. Sarsa Khan PLD 1985 SC 345, Ghulab v. Fazai Ilahi PLD 1955 Lah. 26: It is however, to be kept in view that subject to certain exceptions "even alternative and inconsistent pleas may be allowed to be D raised by way of amendment", Ghulamali v. Pakistan PLD 1960 Kar. 581, Alauddin v. Central Exchange Bank Limited PLD 1960 Lah. 446 "or a new ground of claim can be introduced because merely introduction of fresh matter cannot alter the nature of the suit and leave ought not be refused in such cases. "
Muhammad Essa v. Haseena Begum 1989 SCMR 476. A line of distinction is to be drawn between 'an alternative case' and 'an inconsistent case' which are neither synonymous F nor interchangeable. A similar proposition was examined in case Budho v.Ghulam Shah PLD 1963 SC 553 wherein it was held that no two facts can be said to be inconsistent if both could have happened and the test of G inconsistency is that a plaint which contains both cannot be Verified as true but a party can put forward more than one source. Of his right or defence in which case he is pleading in the alternative. The judicial consensus seems to be that an alternative or inconsistent plea can be H raised but contradictory and mutually destructive pleas cannot be taken.
7. The proposed amendment has been examined' on the touchstone of criterion as mentioned hereinabove and we are of the view that it cannot be considered as contradictory or mutually destructive but on the contrary it would reduce the possibility of multiplicity of-litigation which is the prime object of the provisions as contained in Order. VI, rule 17, C.P.C.
8. The High Court has rightly observed that "indeed there may be some inconsistency between original pleading and the evidence on record, but the fact remains that no inconsistency is sought to be introduced through the proposed amendments. No amendments have been sought in paras.
2 and 3 of the plaints and only the prayer clause is proposed to be amended to enable the Court to pass decree in the ordinary manner. Such relief in our view cannot be refused as the plaintiff can always fall back.Upon the original debt if relief cannot be granted on the basis of a negotiable instruments under Order XXXVII. Even otherwise, once leave to defend is granted the procedure in ordinary suits has to be followed as contemplated by Order XXXVII, Rule 7. The respondent can always rely upon any inconsistency between pleadings and evidence or raise the question of limitation at the II trial".
' The upshot of the above discussion is that the judgment impugned being well-based does not warrant interference. The petitions being merit less are dismissed and leave declined.