AHMED KHAN LASHARI, J.---The Division Bench of this Court in response to pre-admission notice, heard the parties counsel and concluded the matter with difference of opinion; his Lordship Mr. Justice Amanullah Khan, Honourable Chief Justice has held that the concurrent findings arrived at by the Courts below were based on proper interpretation of law while my learned brother Judge Mr. Justice Akhtar Zaman Malghani, did not agree. With dismissal of the suit and opined that the trial Court should have proceeded with the matter regarding illegal dispossession of the petitioners being the consequential relief in the suit, thus; his Lordship after setting aside of the impugned judgments, remanded the matter for proceeding to the extent of threat of illegal dispossession by excluding the other relief sought for by the petitioners, hence the matter was referred to me as a Referee Judge.
2. The petitioners filed Suit No.43 of 2004 for declaration permanent injunction and consequential relief in the Court of Civil Judge, Loralai against the respondents in respect of property located at Mouza Kamal, Karez Halqa Gharbi Thal, Tehsil Duki District Loralai, with the following prayer:-- "It is, therefore, respectfully prayed that a decree may kindly be passed in favour of plaintiff against the defendants to the following effect:
(a) To declare that plaintiffs are lawful owners being successors of vendee late Hazrat Obaid-ur- Rehman's Farooqi of land in dispute description mentioned in para.2 of plaint and defendants Nos.
1 and 2 are bound to transfer the mutation entries in their favour after receiving the outstanding amount of sale consideration.
(b) By means of mandatory injunction defendants Nos.1 and 2 be directed to transfer the mutation entries in favour of plaintiffs by abiding the words of mouth and law.
(c) By means of permanent injunction defendants severally and jointly be directed not to dispossess the plaintiffs and followers of his shrine as cultivators upon land in dispute.
(d) By means of perpetual injunction defendants be directed severally and jointly neither to disturb the permissive peaceful possession of plaintiffs nor to harass any one else on his behalf.
(e) By means of mandatory injunction defendants Nos.3 to 5 be directed not to act as an instrument in utter violation of law and to desist from transgress of authority.
(f) Any other relief along with the cost of the suit may also be awarded."
3. The private respondents while filing their written statement contested the claim and challenged maintainability of the suit on various legal as well as factual grounds. The learned trial Court in view of .Pleadings of the parties, framed the following issues to resolve the controversy existing between the parties:--
(1) Whether the suit of plaintiffs is maintainable in view of preliminary legal objections A and C of written statement raised by defendants Nos. 1 and 2?
(2) Whether the father of plaintiff No.1 has purchased the suit property mentioned in para. No.2 of the suit from the father of defendants Nos.1 and 2 through plaintiff No.2 against the consideration of amount of Rs. 12,00,000 in the month of April, 1981 and in this regard Rs.7,00,000 has been paid to the vendor?
(3) Whether the defendants Nos. I and 2 are bound to transfer the mutation entries in their favour after receiving the outstanding amount of sale consideration?
(4) Whether the plaintiffs are entitled to relief claimed for?
(5) Relief.
The trial Court after hearing the parties decided the legal issues against the petitioners and dismissed the suit vide judgment, dated 28-4-2005 and in appeal the findings were upheld, against which this petition is directed.
4. I have heard Mr. Iftikhar-ul-Haq, Advocate for petitioners, Mr. Ehsan-ul-Haq, Advocate for private respondents and have gone through the record annexed with the petition as well as impugned judgments. The petitioners claimed that the father of petitioner No.1 vide oral sale agreement purchased the suit property from the deceased father of respondents in consideration of certain amount, when the petitioners approached the respondents for receiving the balance amount of sale and transfer of the mutation entries in their names but they refused. It is settled principal of law that an agreement to sell does not create any title, right or interest in the immovable property, thus declaratory suit A under, section 42 of the Specific Relief Act is not permissible. The petitioners as a consequential relief prayed that the respondents be restrained from dispossessing them or to interfere in their peaceful possession. My learned brother Judge Mr. Justice Akhtar Zaman Malghani while relying on the judgment reported in PLD 1976 SC 786 concluded that the suit to the extent of prayer of dispossession or interference in the peaceful possession was maintainable and could be proceeded under the law. The law point discussed in the aforesaid judgment is quite distinguishable wherein the plaintiff claimed that the notice served upon him was with mala fide, be declared illegal as it had no legal effect including the prayer of permanent injunction restraining the defendant from demolishing the superstructure in dispute. Since the required notice contained in subsection (4) of section 273 of the Cantonment Act, before instituting of the suit was not served thus, suit to that extent was not competent, in the circumstances the Honourable Supreme Court held that the second part of the claim of plaintiff after omitting the first one could be proceeded with for the relief of injunction but in the instant case the suit itself was barred by law, thus, proceeding with the consequential relief was also not maintainable. The suit for declaration if not found to be maintainable the plaintiff would not be entitled to equitable right to grant of decree for permanent injunction. The suit which is, on the face of it, incompetent, not because of any B formal, technical or curable defect but because of an express or implied embargo imposed upon it under the law, should not be allowed to further encumber legal proceedings as held in case of Burmah Eastern Ltd. v. Burmah Eastern Employees Union and others reported in PLD 1967 Dacca 190. The contents of plaint and the prayer clause clearly indicate that the petitioners filed suit seeking performance of the agreement but they filed suit for declaration which was not maintainable in present form, but was curable after removing the defect. The learned trial Court not only framed issue on the point but decided it against the petitioners including the other issues. Order VI, rule 17, C.P.C. Provides that the Court may at any stage of the proceeding allow either party to amend his pleading in such manner and on such terms as may be just or all 'such amendment shall be made as may be necessary for the purpose of determining the real question and controversy between the parties. The power to grant amendment, being procedural is to be used for the purpose of dispensation of complete justice. The Court may not hesitate in allowing the amendment to cure the formal defect which is bona fide C and has been occurred due to mistake of fact or misapprehension instead of dismissing the suit, although the plaintiff has not asked or prayed for it.
I may quote the observation made by Honourable Supreme Court in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others reported in PLD 1985 SC 345, wherein it has been held that: "Once the Court decides that the amendment is necessary for the said purpose of determining the real question, the, Court is required by law to not only to allow an application made by a party in that behalf but is also bound to direct the amendment for the said purpose. Thus, the rule can be divided into two parts. In the cases falling under the first part, the Court has the discretion to allow or not to allow the amendment, but under the second part once the Court comes to a finding that the amendment is necessary for the purpose of determining the real question, it becomes the duty of the Court to permit the amendment."
5. Addition in the title of suit and in prayer clause for specific performance of contract does not involve any drastic change in the suit to seek the relief. It is duty of the Court while deciding the case to take into consideration the subsequent events which might have come into existence after the institution of the suit and on the basis of formal defect in suit dismissal should not be ordered and parties should be allowed to suitably amend pleadings even they do not ask for it.
What has been discussed herein above, I am of the view that the Courts below fell in error by not directing the petitioners for the amendment and illegally dismissed the suit, thus; I agree with the observations made by my learned brother Judge Mr. Justice Akhtar Zaman Malghani only to the extent of remand of the case. However, the impugned judgments being not sustainable in the eyes of law are set aside and the trial Court after allowing the above mentioned amendment to proceed with the matter in accordance with law.