' UMAR ATA BANDIAL, J.---This revision petition is filed against the order by the learned trial Court dated 8-3-2005 dismissing the petitioner's application to amend his plaint in the suit. On 19-7-2004 the petitioner filed a suit for specific performance of agreement to sell dated 5-6-2004 in respect of a plot bearing No,536-CC Phase IV, DHA, Lahore for total sale consideration of Rs,9.3 million, out of which Rs,0.3 million is claimed to have been received by the respondent No,1 ("Vendor") on 5-6- 2004 from the petitioner/plaintiff at the time of execution of the sale agreement.
2. The agreement to sell is attached with the plaint which recordsthat it is executed on behalf of the Vendor through, one Tariq Saeed. It is also signed by the said Tariq Saeed. However, neither the sale agreement nor the plaint mention the status of Tariq Saeed whether as attorney or agent of the Vendor. The said Tariq Saeed is also not impleaded as defendant in the suit in which DHA, defendant No,2, is the only other defendant. There is, however, attached to the plaint a general power of attorney issued by the vendor in favour of Tariq Saeed in respect of a different property belonging to the vendor. Also appended with the plaint, there is another document again titled "power of attorney" dated 27-5-2004 about the suit property; this is neither executed on stamp paper nor attested by witnesses but is claimed to be fax signed by the vendor. It authorizes the said Tariq Saeed to sell the suit property and to collect payment of its sale price on behalf of the vendor. Written statement filed on 1-10-2004 by the Vendor denies the agreement to sell as also the receipt of earnest money alleged in the plaint. Further the written statement disclaims privity of contract between the petitioner/plaintiff and vendor.
3. Thereafter on 4-11-2004 the petitioner/plaintiff made an application under Order I, Rule 10, C.P.C.
Read with Order VI, rule 17, C.P.C. And section 151, C.P.C. For implement of the said Tariq Saeed as a defendant in the suit and for leave to amend the plaint in order to state his role in the sale transaction. The amendment proposed describes the said Tariq Saeed as an attorney of Vendor for the suit property. It states the agreement to sell under enforcement as having been executed by said Tariq Saeed under authority of the Vendor conferred by an original fax dated 27-5-2004 duly signed by the Vendor and accompanied by a copy of the Vendor's National Identity Card. The contents of the fax authorization are also mentioned. The Vendor opposed this application on the ground that the proposed amendments alter the cause of action in the suit; and such consequence disentitles the relief of amendment under settled legal principles on the point.
4. The objection by the vendor prevailed before the learned trial Court for reasons recorded in the impugned order dated 8-3-2005. This order specifically holds that the addition of Tariq Saeed as a party to the suit is not likely to change the complexion of the suit; however, the proposed amendment has the effect of changing the cause of action in the suit and cannot therefore be allowed. Before this Court, the learned counsel for the Vendor/respondent made erudite submissions directed solely at the effect of the proposed amendment which suggests that the Vendor has no objection to the impleadment of the proposed defendant.
5. Learned counsel for the Vendor submitted that a party cannot by resort to amendment of its pleadings be permitted to change its cause of action pleaded in its suit. He referred to a number of judgments that give the meaning of the expression "cause of action". The main judgment relied by the learned counsel was delivered in the case of National Development Finance Corporation v. M/s. Leepa Shoes Ltd. 1992 M LD 474. It is observed therein: "The term 'cause of action' has not been defined in the Civil Procedure Code. It is construed in its general sense and refers to averment of facts or state of facts stated in the plaint, giving rise to a claim or right of plaintiff, against the defendant, sufficient to enable the Court in rendering the judgment or to grant relief."
' To the same effect is a ruling given in the case of Abdul Rehman v. Sher Zaman 2004 CLC 1340.
Learned counsel submitted that the proposed amendment adds additional facts about the agreement to sell having been executed by an attorney and earnest money under the said agreement to have been received by such attorney of the respondent/Vendor. By these additional facts the cause of action changes from one of a direct agreement to sell executed by the Vendor as originally pleaded by the plaintiff, to an agreement which is executed by the Vendor through an attorney. To establish the new version, he asserts, that further facts would have to be proved by the petitioner/plaintiff and for this difference his cause of action has changed. Accordingly, no amendment in the plaint is permissible to incorporate the said change. Learned counsel for the Vendor has, however, not cited any authority to sustain the principal proposition of his argument that any change in the statement of a cause of action whether elucidatory or substitutionary disentitles a party to amendment of his pleadings.
6. Learned counsel for the petitioner/plaintiff has, on the other hand, referred a number of authorities that explain that amendments in pleadings that change the complexion of the suit or its nature or substitute the cause of action are not to be permitted pursuant to the law laid down with regard to Order VI, Rule 17, C.P.C. The seminal judgment in this behalf was given in the case of Mst.
Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345. In the context of the effect of the change in the cause of action, the Hon'ble Supreme Court observed as follows:-- "What has been stated above is, however, subject to a very important condition that the nature of the suit in so far as its cause of action is concerned is not changed by the amendment A whether it falls under the first part of rule 17 or the second part, because when the cause of action is changed the suit itself would become different from the one initially filed. Here this condition would not have been contravened if the amendment had been allowed by the High Court. The bundle of facts narrated in the plaint which constitute the cause of action, as the application for amendment shows, would not have suffered any material change if the request would have been allowed."
(Underlining supplied).
7. The foregoing observations highlight that an amendment to a party's pleadings cannot be permitted if it changes the nature of the suit or, as observed in the same judgment at page 356, where the cause of action is so changed as to make it totally a new suit. The Hon'ble Supreme Court further considered the effect of an amendment introducing a change of cause of action in the context of Order II, rule 2, C.P.C. And made the following observations:-- "Of course, in so far as the new cause of action and a new suit is concerned that cannot be permitted to be introduced in the garb of amendment; but regarding the introduction of a new or different element which by itself does not constitute a different cause of action or a new suit it would be in accord with the provisions contained in Order II, rule 2, C.P.C." (Underlining supplied).
8. The incorporation of additional facts in the pleadings without changing the nature of the suit or the underlying basis of the suit cannot be treated as a change of cause of action that alters the nature of the suit. It is evident from the record and not also disputed by the learned counsel for the respondent/Vendor that the suit for specific performance of agreement to sell dated 5-6-2004 filed by the petitioner/plaintiff does not, by virtue of the proposed amendment, change to the enforcement of a different or a new agreement. The sale agreement under enforcement in the suit is on its face signed by the said Tariq Saeed on behalf of the Vendor who is by the proposed amendment explained to be an attorney or agent. The proposed amendment therefore does not replace the underlying agreement or the relief prayed in the suit. The additional facts about the status and role of Tariq Saeed does add an element to the cause of action of the petitioner/plaintiff but that element is an essential part of the agreement already pleaded which would in any event have to be established by the petitioner/plaintiff to prove his case even if the proposed amendment were not made. Resultantly, the additional facts pleaded merely elaborate the cause of action rather than change it. The law laid down by the Hon'ble Supreme Court regarding avoidance of procedural technicalities in the case of Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 has been strongly reiterated in the aforesaid judgment of "Sarsa Khan" (supra). More recently, in the case of Semco Salvage Pte. Ltd. v. m.v. Kaptan Yusuf Kalkavan and another 1993 SCM R 593 a salvage award by the arbitrator settled compensation after the appellant had filed its suit for recovery against the respondent No,1 for salvage service. An application was filed for amendment of the plaint seeking to mention the subsequent award in the plaint. The Hon'ble Supreme Court dealt with the proposed change in the cause of action as follows:-- "Order VI, Rule 17 empowers the Court to allow amendment at any stage of the proceedings for just decision of the case. The technicalities are to be avoided. The plaintiff's original cause of action is based on salvage service and award made subsequent to the filing of the suit needed the proposed amendment. It is directly connected with the cause of action. The amendment allowed by the learned trial Judge does not alter the nature of the suit either in form or in substance. The nature of an added claim in substance is the same. There is no change in the nature of cause of action. The nature, claim and cause of action have not changed. For resolving the entire dispute between the parties and saving them from multiplicity of proceedings, the amendment was necessary." (Underlying supplied)
9. In the present case the additional element proposed to be pleaded in the plaint does not change the nature of or introduce a different cause of action to the one originally pleaded in the suit. It merely elaborates the existing cause of action. On the criteria adopted by the Hon'ble Supreme Court in the "Semco" case (supra) the role of Tariq Saeed as attorney or agent may be termed as inherent to and connected with the original cause of action pleaded in the suit. The proposed amendment to the above effect shall neither change the cause of action nor the nature of the suit. It would highlight the real controversy between the parties and, therefore, promote the fair adjudication of their dispute. Accordingly, under the applicable rule of law the proposed amendment is fully justified. It should therefore have been allowed by the learned trial Court, which has fallen in error in the appreciation of the relevant law on the question under resolution.
10. For the foregoing reasons this civil revision is accepted, the impugned order is set aside and the amendment prayed by the petitioner/plaintiff in his plaint is allowed. No order as to cost.