' MUHAMMAD MUZAMMAL KHAN, J.---Instant petition under section 114 read with Order XLVII, Rule 1, C.P.C. Prayed review/re-consideration of judgment dated 16-11-1993 by this Court in R.S.A. No,63 of 1991, whereby second appeal of the, petitioner was dismissed in limine. The review was prayed on the ground that a declaratory suit could have been treated, one for specific performance and this relief should have been granted by the Court in suo motu powers, even in absence of any prayer or specific application in this behalf because after such treatment, the petitioner was only required to pay deficient court-fee on the plaint.
2. Succinctly, relevant facts are that Mst. Rehana Bashir, filed a suit for declaration to the effect that Saleh Muhammad deceased, the allottee of Plot No,88-A, Peoples Colony, Faisalabad, had agreed to sell the plot for a consideration of Rs,17,500 vide agreement to sell dated 8-5-1969, who after receipt of the entire sale consideration, delivered possession of the plot to her, and thus, she had become owner of the. Same. She further pleaded that after death of Saleh Muhammad allottee his heirs/legal representatives had no right, title or claim to the suit plot. She also prayed permanent injunction restraining the respondents from getting the plot in question transferred from Urban Rehabilitation Department in their names or from interfering in her possession.
3. Respondents being defendants in the suit contested the same by filing their written statements, wherein bargain or the agreement to sell relied by the petitioner was denied and suit was claimed to be barred by provisions of section 42 of the Specific Relief Act, 1887, as possession of the suit property was pleaded to be with the respondents. Certain other preliminary objections regarding maintainability and valuation of the suit were also raised. Controversial pleadings of the parties necessitated framing of issues, which included bona fide subsequent transfer in favour of defendants Nos.6 and 7. The learned Civil Judge who was seized of the matter after recording of evidence of the parties and in due appraisal of evidence on the file, dismissed the suit vide his judgment and decree dated 12-4-1989.
4. The petitioner being aggrieved of dismissal of her suit by the trial Court, filed an appeal before the learned Additional District Judge, Faisalabad, but remained unsuccessful as the same was dismissed vide appellate judgment/decree dated 4-6-1991. The petitioner, thereafter, filed second 'appeal before this Court, (R.S.A. No,63 of 1991), but it also met the same fate of dismissal in limine vide judgment/decree dated 16-11-1993. The petitioner, thereafter, filed instant review petition with the relief noted above, which was admitted to regular hearing and after completion of record was placed before us for final determination as the Hon'ble Judge who decided the R.S.A. Had already retired.
5. We have heard the learned .Counsel for the parties and have examined the record, appended herewith. There is no cavil about the proposition that suit for declaration could have been converted into for specific performance if the same is made out from substance in the plaint, with the leave of the Court under Order VI, Rule 17, C.P.C. In case such conversion/amendment does not alter the cause of action or the nature of the suit. The other question which hinges for determination is as to whether a plaintiff who with due deliberations, insisted on decision of her suit, in the form filed before the Court cognizant of it, should itself direct the plaintiff to amend the plaint, the answer is in negative. The petitioner's suit was contested by the respondents and in the written statement it was alleged that agreement to sell dated 5-8-1959 was forged, fake and fictitious as no bargain was struck between their predecessor and the petitioner, besides the averments that the suit in its present form, was not maintainable as the petitioner was out of possession and her suit was bad by virtue of section 42 of the Specific Relief Act, 1887. On the basis of these allegations in the written statement, specific issues regarding maintainability of suit and locus standi of the petitioner to file the suit were framed i,e, Issues No,1 and 6(f) but petitioner did not pay any heed to the objections of the respondents and did not claim amendment of the plaint in spite of the fact that her suit remained pending before the trial Court from 27-7-1972 to 31-10- 1988 and the petitioner was represented though an eminent civil lawyer of Faisalabad District Bar Association, namely Ch. Muhammad Bashir, Advocate. The petitioner lost her case before the trial Court and consequently filed an appeal before the learned District Judge, where in spite of challenging the findings of the trial Court on Issue No,1 and raising a detailed ground attacking findings returned by the trial Court on this issue, emphasized that the suit was maintainable in its present form and did not make any prayer that she may be permitted to amend her plaint. The petitioner, thereafter, came in second appeal before this Court, here she was represented again by a very competent civil lawyer namely Sh. Naveed Shaharyar, Advocate, who drafted the memorandum of appeal wherein, it was averred by challenging the findings on Issue No,1 that the suit was maintainable in the form it was filed. The second appeal before this Court, was argued by Ch. Khursheed Ahmad, Advocate, who besides being amongst the Senior most civil lawyers, his competence cannot be doubted but he did not elect to move any application under Order VI, Rule 17, C.P.C., even in second appeal or to argue that his suit may be allowed to be amended. We have noted that plea of amendment of plaint for the first time was raised in review application brought against the judgment in R.S.A. No,63 of 1991:
6. Narrations in the foregoing paragraphs, did not mentally detain us for even a while to hold that the petitioner from the very inception of proceedings was conscious that her suit was being attacked inter alia on the ground that it cannot proceed, being simpliciter for declaration.
Nature/character of both the plaints, one for declaration and the other for specific performance, are altogether opposed to each other because in suit for declaration the plaintiff has to make out his title as per section 8 of the Specific Relief Act, 1887, by claiming that she be declared to be B owner of the suit property, whereas in the suit for specific performance, the plaintiff has to assert own readiness/willingness to perform her part of contract and failure of her adversary to do the needful within the time specified. Elements of suit for specific performance unless are pleaded, the plaint cannot see its success.
7. From the above resume, we have examined the plaint, as it was filed and the same with lengthy averments which run into 16 paragraphs, in substance is a suit for declaration simpliciter and by no standard the same can be treated as one for specific performance because narrations required for specific performance as detailed in the foregoing paragraph are altogether missing. In this context para. 12 of the plaint has much relevance which is reproduced for convenience purposes and reads as under:-- "12. That defendants Nos.1 to 5 have been asked several times to admit the transferee rights of the plaintiff in respect of said plot and building thereon but they are not prepared to do so. On the' other hand they have applied to the Urban Rehabilitation Department, Layallpur to transfer the said plot and the Building thereon in their favour. This wrong claim of defendants Nos.1 to 5 has necessitated this suit. They are also trying to interfere with the possession of the plaintiff".
Keeping in view the narrations of the plaint of the petitioner, dispute in the esteemed judgment by the Honourable Supreme Court in the case of S. Sibtain Fazli v. Star Films Distributors PLD 1964 SC 337, relied by the learned counsel for the petitioner for the proposition that suit for declaration can be treated as one for specific performance, related to dispute under a licence for import of a Bangali Film and the Licensee in anticipation of grant of import licence,' entered into an agreement with Messrs Screen Classics of Calcutta for acquiring rights of distribution, exhibition and exploitation of that Film in East Pakistan for a period of 12 years who further entered into an agreement with Star Film Distributors. On some dispute, Star Films Distributors filed a suit for declaration and mandatory injunction and their substance in the plaint justified conversion of the same into the one for specific performance where under it was pleaded on the basis of a clause of the agreement that in case the, right of distribution of the film sold, was not available, the plaintiff would be entitled to have another picture of its own choice imported by the defendants, therein.
Since, the Honourable Supreme Court after taking into consideration substance of the plaint in the precedent case, graciously permitted conversion but we after undertaking the same exercise are of the considered view that petitioner's plaint did not contain any substance for the conversion urged in the review petition.
' A Division Bench of this Court in the case of Ram Asra and another v. Allah Jawava and another AIR 1931 Lah. 595 declined conversion/amendment of Declaratory Suit filed on the basis of an agreement to sell, so as to make it for specific performance. Besides these judgments, reference can be made to the judgments by the Honourable Supreme Court in the cases of Mst. Khudeja v.
Jehangir Khan and 37 others 1971 SCMR 395 and 1977 SCMR 284.
8. We have also examined the provisions of Order VI, Rule 17, C.P.C. Which equipped the .Courts with jurisdiction to allow amendment in pleadings in such manner, and on such terms, which would be necessary for determination of the real question in controversy between the parties. According to our humble view, these provisions do not equip the Courts with any power to allow vague/unspecified amendments of the pleadings, without looking at the proposed amendments and that too, in suo motu powers, taking away rights of the other contestants to oppose the same.
Reference in this behalf cannot be made to the judgments in the cases of AIR 1939 Lah. 172, Shuja- ul-Mulk v. Firm Abdul GhafoorAbdul Qadim PLD 1964 Pesh.110, Karim Dad v. Arif Ali and another PLD 1978 Lah.679, Irfan Iqbal and 2 others v. Ch. Muhammad Hanif and 4 others PLD 1985 Lah. 523 and Muhammad Saleem and another v. Mst. Zarina Begum and 4 others 1996 MLD 1959.
9. We are not oblivious of the situation that in certain situations, Courts have inherent powers to allow the amendments in the pleadings but those should be of the nature of clerical/typographical mistakes, not resulting in change of nature/character of the suit and through these powers miss description of parties or properties in dispute can be allowed to be corrected. In case before us, the petitioner insisted for grant of declaration of her ownership under the claimed sale, in spite of being represented through eminent lawyers at the Bar.
10. We while deciding this review petition are also alive to the situation that . Both the Courts below concurrently answered that the petitioner is not in possession of the suit plot which was never handed over to her under the claimed agreement to sell dated 5-8-1959 and of the fact that specific performance of such the denied agreement, after lapse of a period of almost five decades will not only be harsh but also would affect to subsequent transferees who were bona fide purchasers for valuable consideration and have raised At ructions by incurring huge expense. We cannot also lose sight of increase in property, 'and the devaluation in currency on account of inflation, many folds especially when after allowing the such amendment after five decades, the parties will have to be put again to trial by providing the respondents an opportunity to meet the pleas raised by the petitioner through the amended plaint and this exercise will again take the time already consumed.
11. The petitioner could not explain before us as to how an incompetent suit for declaration, on the basis of an alleged agreement to sell which created no title in the property was initially filed and as to why the same was throughout emphasized to be decreed in the same form. We have already detailed in the factual part of this judgment that the petitioner did not opt to pray for amendment before the trial Court, the First Appellate Court or before this. Court during hearing of second appeal, thus we feel our self-unable to grant such prayer, in review jurisdiction. Even today in suo motu jurisdiction, as such exercise is not permissible in view of clear language of section 114 and Order XLIII, Rule 1, C.P.C. Permitting review on discovery of new and important matter/evidence which was not within his knowledge or could not be procured at the time of decision or on account of some mistake or error apparent on the face of the record but none all these pre-requisites were made out in this case.
12. For the reasons noted above, we are of the considered view, that no case for review of judgment dated 16-11-1993 in R.S.A. No,63 of 1991 was made out within the frame work of law, hence this petition being devoid of any merit is dismissed, with no order as to costs.