1. ' NADEEM AZHAR SIDDIQI, J.---This is an application under Order VI and rule 17, C.P.C. By which the plaintiff has prayed that heading of the plaint and paras.13, 17, 20 and 22(a) of the plaint may be allowed to be amended and the amount of Rs,5,734,183 appearing in these paras. May be read as Rs,7,934,183. The reasons assigned for amendment in the plaint are that the plaintiff granted two advance to the defendant No,l. The 1st advance of Rs,10 Millions was granted under Agreement dated 14-6-1993 and the Second advance of Rs,5,00,000 was granted under agreement dated 31- 3-1993. The plaintiff states that inadvertently and without any mala fide intention the plaintiff adjusted an amount of Rs,2,200,000 against repayment of dues under agreement dated 14-6-1993 instead of adjusting the same against dues payable under agreement dated 31-3-1993. The plaintiff further states that on pointation of the said mistake by the defendants Nos.1 to 3 in Suit No,627 of 1995 the entry was reversed and the amount of Rs,2,200,000 was credited under loan agreement dated 31-3-1993 and debited the account of defendant No,1 with Rs,2,200,000 under Loan agreement dated 14-6-1993 due to which the amount in the suit increased to Rs,7,934,133.
2. ' The defendant No,1 filed the counter affidavit in which it was stated that earlier the plaintiff had filed a similar application by C.M.A. No,1433 of 1999 and has withdrawn the same on 6-3-2002 and the plaintiff is precluded from filing another application on the same facts. In the affidavit the defendant No,1 denied both the loan agreements. However, filing of two suits are not denied. The compromise in the H.C.A. No,246 of 1997 and payment of Rs,3,334,351 towards claim in Shit No,627 of 1995 was not denied. The wrong adjustment of the amount is denied. The defendant No,1, further states that the application is liable to be dismissed under Order II, Rule 2, C.P.C. And under Article 115 of the Limitation Act.
3. ' The defendant No,5 has also filed his counter affidavit and submits that the prayer in application is beyond the scope of Order VI, rule 17, C.P.C. And that second application is not maintainable. The defendant No,5 also denied that due to mistake any amount was adjusted.
4. ' The plaintiff has filed affidavit in re-joinder to the counter affidavit filed by the defendants. I have heard the learned counsel for the parties and perused the record.
5. ' Mr. Munawar Ghani submits that by allowing an amendment the nature and scope of the suit will not be changed and that there is no limitation prescribed for filing such application and the same can be filed at any time before judgment. He submits that the 1st application was withdrawn with permission to file fresh application. He further submits that application for amendment is to be liberally construed as even if the amendment is allowed the defendants will get sufficient opportunity to rebut the amended claim of the plaintiff. Regarding limitation Mr. Munawar Ghani submits that Article 115 of the Limitation Act is not applicable but Article 96 of the Limitation Act will be applicable. In support of his contention he relied upon the following reported judgments.
(1) Perveen Akhter v. Mst. Sania Feroze 2004 CLC 351;
(2) Nazim Din v. Ali Muhammad 1996 3 MLD 1111;
(3) Muhammad Iqbal v. Mirza Begum 1992 M LD 1257;
(4) Haji Hakeem Gul v. Madad Khan 1998 M LD 1260; ' Mr. Muhammad Qadeer learned counsel for defendants Nos.1, 2 and 4 submits that second application is barred and that in view of Order II, rule 2, C.P.C. The plaintiff is not entitled to claim the relief which was relinquished. He submits that the amendment cannot be allowed in view of Article 115 of the Limitation Act.
6. ' Mr. Mansoor-ul-Arfin, learned counsel for the defendant No,5 submits that at this stage when the remedy becomes time barred the relief cannot be granted. He submits that once the plaintiff has relinquished some part of claim he is precluded to claim the same by way of amendment in the pleadings. He further submits that application is silent when the plaintiff came to know about the mistake and no documents has been produced to show that in fact the amount paid by defendant in this contract was mistakenly adjusted in other contract. In support of his contention he relied upon the following reported cases:--
(1) M. Saeed Sehgal v. Kazi Khurshid Hassan PLD 1964 SC 598
(2) Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. AIR 1948 PC 100.
7. 'The rules of Court are intended to secure the proper administration of justice and should be subordinate to that purpose so the full power of amendment should always be exercised liberally.
8. The power to allow amendment is discretionary with the Court and has to be exercised in accordance with judicial principles. The amendment can be allowed at any stage of suit and the purpose is to avoid multiplicity of proceedings. This can also be exercised in meeting the ends of justice. The amendment can also be allowed if by bona fide mistake some part of claim was not mentioned in the plaint. The only restriction is that the amendment will not change the nature of relief claimed and the complexion of the suit. The delay itself is no ground to refuse amendment.
9. ' In this case although the amendment was opposed but none of the defendants in their counter affidavit has denied the adjustment of Rs,2,200,000. From Suit No,627 of 1995. The plaintiff is merely seeking enhancement of claim in this suit due to adjustment in the other case. In any case if the amendment is allowed the defendant will get sufficient opportunity to rebut the case of the plaintiff. Out of the above case law cited by the learned counsel for the plaintiff in the case of Perveen Akhter v. Mst. Sania Feroze 2004 CLC 351, it was held that dismissal of application on technical grounds without touching the merits and without determining the right to amend the pleadings is no bar for maintaining second application. In the same reported case it was further held that amendment of pleadings has always been liberally allowed subject to the conditions that cause of action and complexion of the suit is not changed. In another case cited by the learned counsel for the plaintiff Muhammad Iqbal v. Mirza Begum reported in 1992 M LD 1257 the full Bench of Supreme Court (AJ&K) held as under:-- "Rule 17 does not lay down any guideline which has to be followed by the Court while considering the question of amendment. It only lays down that if the permission for amendment is granted the manner in which the amendment would be made and terms on which it would be allowed should be just. Since there are no guidelines, it has always been assumed by Courts that this power has to be liberally exercised. However, the question still remains as to what considerations should be kept in view while liberally considering a request for amendment. On this question there is consensus of the superior Courts that amendment can be allowed if two conditions are fulfilled. Firstly that the proposed amendment should not change the nature of the suit and, secondly, that new cause of action is not thus set up. From a perusal of the case-law, which I will be noticing later on, on the subject it appears that at the early stages the view held by some of the superior Courts was that limitation plays some part while deciding the prayer for amendment. To my mind the correct law is that once the two conditions, as aforesaid, are fulfilled amendment has to be allowed, delay or negligence notwithstanding."
10. 'Rule 17 does not visualize that there will be limitation for making an amendment. The limitation prescribed in the Limitation Act relates to the institution of the suits, appeals etc. Section 3 of the Limitation Act lays down that ever suit instituted, appeal preferred and application made after the period of limitation, shall be dismissed. But the Act does not fix any time for moving an amendment application. In section 22 of the Limitation Act it is specifically laid down that if a new plaintiff or defendant is substituted or added after the institution of the suit the suit shall be deemed to have been instituted as regards him, when he was made a party. It is significant that no such provision has been made in respect of an amendment."
11. ' The case law cited by Mr. Mansoor-ul-Arfin, the learned counsel for the defendant No,5 is not directly applicable to this case. In the case reported as Saeed Sehgal v. Khurshid Hassan PLD 1964 SC 598, the amendment was refused for the reason that the opportunity at the level of High Court was not availed and that a new relief by way of damages was prayed. In another case Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. AIR 1948 PC 100 the amendment was refused on the ground that since at the time when leave to amendment was sought any claim under the alleged implied agreement would have been bared by limitation. In the case of Muhammad Iqbal Mirza quoted above the Supreme Court of AJ&K has held as under;-- "As a result of the discussion I have formed the conclusion that where omission is not intentional addition of Shamilat land can be allowed even after prescribed period of limitation, and that an application for amendment cannot be rejected on the ground of limitation. I would also hold that the negligence or carelessness is not a ground on which a prayer for amendment may be refused.
12. However, I may add, as a measure of abundant caution that a Court is not bound to accept a mala fide amendment application as was held in Jan Muhammad v. Muhammad Munsif PLD 1986 SC (AJ&K) 98."
13. 'In the present case I could not find any mala fide on the part of the plaintiff. Furthermore the defendant will get opportunity to rebut the claim of the plaintiff.
14. ' I, therefore, following the view of Supreme Court AJ&K allowed the application under Order VI, rule 17, C.P.C. Filed by the plaintiff. The plaintiff will file amended plaint within 15 days with copy to the defendant who may file their amended written statement and the parties will also entitled to apply for amendment of issues if they so desire. The application is allowed with no order as to cost.